Exhibit 10.1





Exhibit 10.1




AMENDED AND RESTATED CREDIT AGREEMENT




Dated March 1, 2011




among




COGDELL SPENCER LP,

as Borrower,




COGDELL SPENCER INC.,

as a Guarantor,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,




KEYBANK NATIONAL ASSOCIATION,

as Syndication Agent,




BRANCH BANKING AND TRUST COMPANY,

CITICORP NORTH AMERICA, INC.,

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agents,




and




THE OTHER LENDERS PARTY HERETO




MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

KEYBANC CAPITAL MARKETS

as

Joint Lead Arrangers and Joint Bookrunners





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Amendment and Restatement; Allocations
	 	 	1	 
	1.02 Defined Terms
	 	 	2	 
	1.03 Other Interpretive Provisions
	 	 	35	 
	1.04 Accounting Terms
	 	 	36	 
	1.05 Rounding
	 	 	36	 
	1.06 Times of Day
	 	 	36	 
	1.07 Letter of Credit Amounts
	 	 	36	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	37	 
	2.01 Committed Loans
	 	 	37	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	37	 
	2.03 Letters of Credit
	 	 	38	 
	2.04 Swing Line Loans
	 	 	46	 
	2.05 Prepayments
	 	 	49	 
	2.06 Termination or Reduction of Commitments
	 	 	49	 
	2.07 Repayment of Loans
	 	 	49	 
	2.08 Interest
	 	 	50	 
	2.09 Fees
	 	 	51	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate

	 	 	51	 
	2.11 Evidence of Debt
	 	 	52	 
	2.12 Payments Generally; Agent’s Clawback
	 	 	52	 
	2.13 Sharing of Payments
	 	 	54	 
	2.14 Increase in Commitments
	 	 	54	 
	2.15 Extension of Maturity Date
	 	 	55	 
	2.16 Cash Collateral
	 	 	57	 
	2.17 Defaulting Lenders
	 	 	58	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	60	 
	3.01 Taxes
	 	 	60	 
	3.02 Illegality
	 	 	62	 
	3.03 Inability to Determine Rates
	 	 	62	 
	3.04 Increased Costs
	 	 	62	 





 


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TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	3.05 Compensation for Losses
	 	 	64	 
	3.06 Mitigation Obligations; Replacement Lenders
	 	 	64	 
	3.07 Survival
	 	 	65	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	65	 
	4.01 Conditions of Effective Date
	 	 	65	 
	4.02 Conditions to all Credit Extensions
	 	 	67	 
	ARTICLE V. REAFFIRMATION OF CSI GUARANTY
	 	 	68	 
	5.01 CSI Guaranty
	 	 	68	 
	5.02 Payment
	 	 	68	 
	5.03 Guaranty Absolute
	 	 	68	 
	5.04 Reinstatement
	 	 	70	 
	5.05 Waiver; Subrogation
	 	 	70	 
	5.06 Waiver of Set-Off
	 	 	71	 
	ARTICLE VA. SECURITY
	 	 	71	 
	5A.01 Security
	 	 	71	 
	5A.02 Further Assurances
	 	 	71	 
	5A.03 Information Regarding Collateral
	 	 	72	 
	5A.04 Borrowing Base
	 	 	72	 
	ARTICLE VI. REPRESENTATIONS AND WARRANTIES
	 	 	74	 
	6.01 Existence, Qualification and Power; Compliance with Laws
	 	 	74	 
	6.02 Authorization; No Contravention
	 	 	75	 
	6.03 Governmental Authorization; Other Consents
	 	 	75	 
	6.04 Binding Effect
	 	 	75	 
	6.05 Financial Statements; No Material Adverse Effect
	 	 	75	 
	6.06 Litigation
	 	 	76	 
	6.07 No Default
	 	 	76	 
	6.08 Ownership of Property; Liens
	 	 	76	 
	6.09 Environmental Compliance
	 	 	76	 
	6.10 Insurance
	 	 	76	 
	6.11 Taxes
	 	 	77	 
	6.12 ERISA Compliance
	 	 	77	 





 


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TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	6.13 Subsidiaries
	 	 	77	 
	6.14 Margin Regulations; Investment Company Act
	 	 	78	 
	6.15 Disclosure
	 	 	78	 
	6.16 Compliance with Laws
	 	 	78	 
	6.17 Intellectual Property; Licenses, Etc
	 	 	78	 
	6.18 Solvency
	 	 	78	 
	6.19 REIT Status
	 	 	78	 
	6.20 Ground Leases; Appraised Value; Net Operating Income; Existing Surveys
	 	 	79	 
	ARTICLE VII. AFFIRMATIVE COVENANTS
	 	 	79	 
	7.01 Financial Statements
	 	 	79	 
	7.02 Certificates; Other Information
	 	 	80	 
	7.03 Notices
	 	 	82	 
	7.04 Payment of Obligations
	 	 	82	 
	7.05 Preservation of Existence, Etc
	 	 	83	 
	7.06 Maintenance of Properties
	 	 	83	 
	7.07 Maintenance of Insurance
	 	 	83	 
	7.08 Compliance with Laws
	 	 	83	 
	7.09 Books and Records
	 	 	83	 
	7.10 Inspection Rights
	 	 	84	 
	7.11 Use of Proceeds
	 	 	84	 
	7.12 Financial Covenants
	 	 	84	 
	7.13 Additional Guarantors
	 	 	85	 
	7.14 REIT Qualification; Listing on Securities Exchange
	 	 	85	 
	7.15 Ownership of Borrower
	 	 	85	 
	7.16 Borrowing Base Requirements
	 	 	85	 
	7.17 Post-closing Surveys
	 	 	86	 
	7.18 Post-Effectiveness Obligations
	 	 	86	 
	ARTICLE VIII. NEGATIVE COVENANTS
	 	 	86	 
	8.01 Liens
	 	 	86	 
	8.02 Investments
	 	 	87	 
	8.03 Indebtedness
	 	 	88	 





 


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TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	8.04 Fundamental Changes
	 	 	89	 
	8.05 Dispositions
	 	 	89	 
	8.06 Restricted Payments
	 	 	90	 
	8.07 Change in Nature of Business
	 	 	91	 
	8.08 Transactions with Affiliates
	 	 	91	 
	8.09 Burdensome Agreements
	 	 	91	 
	8.10 Use of Proceeds
	 	 	92	 
	8.11 Amendments to Organization Documents
	 	 	92	 
	ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES
	 	 	92	 
	9.01 Events of Default
	 	 	92	 
	9.02 Remedies Upon Event of Default
	 	 	94	 
	9.03 Application of Funds
	 	 	95	 
	ARTICLE X. ADMINISTRATIVE AGENT
	 	 	96	 
	10.01 Appointment and Authorization of Administrative Agent
	 	 	96	 
	10.02 Rights as a Lender
	 	 	96	 
	10.03 Exculpatory Provisions
	 	 	96	 
	10.04 Reliance by Administrative Agent
	 	 	97	 
	10.05 Delegation of Duties
	 	 	97	 
	10.06 Resignation of Agent
	 	 	98	 
	10.07 Non-Reliance on Agent and Other Lenders
	 	 	98	 
	10.08 No Other Duties, Etc
	 	 	99	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	99	 
	10.10 Collateral and Guaranty Matters
	 	 	99	 
	10.11 Secured Cash Management Agreements and Secured Hedging Agreements
	 	 	100	 
	ARTICLE XI. MISCELLANEOUS
	 	 	100	 
	11.01 Amendments, Etc
	 	 	100	 
	11.02 Notices; Effectiveness; Electronic Communications
	 	 	102	 
	11.03 No Waiver; Cumulative Remedies
	 	 	104	 
	11.04 Expenses; Indemnity; Damage Waiver
	 	 	104	 
	11.05 Payments Set Aside
	 	 	106	 
	11.06 Successors and Assigns
	 	 	106	 





 


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TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	111	 
	11.08 Right of Setoff
	 	 	111	 
	11.09 Interest Rate Limitation
	 	 	112	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	112	 
	11.11 Survival of Representations and Warranties
	 	 	112	 
	11.12 Severability
	 	 	112	 
	11.13 Replacement of Lenders
	 	 	113	 
	11.14 Governing Law; Jurisdiction; Etc
	 	 	113	 
	11.15 Waiver of Right to Trial by Jury
	 	 	114	 
	11.16 No Advisory or Fiduciary Responsibility
	 	 	114	 
	11.17 USA PATRIOT Act Notice
	 	 	115	 
	11.18 Waiver of Appraisal Rights
	 	 	115	 





 


v









 





SCHEDULES




	 	 	 
	A

	 	Existing Loans
	1.01(a)

	 	Existing Borrowing Base Properties
	1.01(b)

	 	Existing Eligible Properties
	1.01(c)

	 	Existing Letters of Credit
	1.01(d)

	 	Existing Pledged Properties
	2.01

	 	Commitments and Applicable Percentages
	5A.03

	 	Collateral Information
	5A.04(a)

	 	Appraisal Requirements
	5A.04(b)

	 	Borrowing Base Properties
	6.06

	 	Litigation
	6.09

	 	Environmental Matters
	6.13

	 	Subsidiaries and Other Equity Investments
	6.20

	 	Existing Surveys
	7.17

	 	Post Closing Surveys
	8.01

	 	Existing Liens
	8.03

	 	Existing Indebtedness
	11.02

	 	Administrative Agent’s Office, Certain Addresses for Notices






EXHIBITS




	 	 	 
	Form of	 	 
	A

	 	Committed Loan Notice
	B

	 	Swing Line Loan Notice
	C-1

	 	Note
	C-2

	 	Amended and Restated Note
	D

	 	Available Amount Certificate
	E

	 	Compliance Certificate
	F

	 	Assignment and Assumption
	G

	 	Guaranty
	H

	 	Eligible Property Compliance Certificate
	I

	 	Estoppel Certificate
	J-1

	 	Subordination, Nondisturbance and Attornment Agreement
	J-2

	 	Reaffirmation and Amendment to Subordination, Non-Disturbance and Attornment Agreement
	K

	 	Opinion of Special Counsel
	L-1

	 	Consent and Agreement Regarding Performance Under Ground Lease
	L-2

	 	Affirmation of, and Amendment to, Landlord’s Consent and Agreement Regarding Performance under Ground Lease
	M

	 	Environmental Indemnity Agreement
	N

	 	Mortgage






 


vi









 







AMENDED AND RESTATED CREDIT AGREEMENT




This AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is entered into
effective as of March 1, 2011, among COGDELL SPENCER LP, a Delaware limited partnership
(“Borrower”), COGDELL SPENCER INC., a Maryland corporation (“CSI”), each lender
from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.



RECITALS




A. The Borrower, CSI, the lenders party thereto (the “Existing Lenders”) and Bank of
America, as Administrative Agent thereunder, are parties to that certain Credit Agreement dated as
of March 10, 2008 (the “Existing Credit Agreement”).



B. The Borrower has requested that the Existing Credit Agreement be amended and restated on
the terms and conditions contained in this Agreement.



C. The Borrower, CSI, the Lenders and the Administrative Agent have agreed to and desire to
amend and restate the Existing Credit Agreement on the terms and conditions set forth in this
Agreement (the “Amendment and Restatement”).



AGREEMENT




In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




1.01 Amendment and Restatement; Allocations. In order to facilitate the Amendment and
Restatement and otherwise to effectuate the desires of the Borrower, the Lenders, the
Administrative Agent, the L/C Issuer and the Swing Line Lender:



(a) The Borrower and each other Loan Party, the Lenders, the Administrative Agent, the L/C
Issuer and the Swing Line Lender hereby agree that upon the effectiveness of this Agreement, the
terms and provisions of the Existing Credit Agreement which in any manner govern or evidence the
Obligations, the obligations of the Borrower and each other Loan Party, the rights and interests of
the Lenders, the Administrative Agent, the L/C Issuer and the Swing Line Lender and any terms,
conditions or matters related to any thereof, shall be and hereby are amended and restated in their
entirety by the terms, conditions and provisions of this Agreement, and the terms and provisions of
the Existing Credit Agreement, except as otherwise expressly provided herein, shall be superseded
by this Agreement.


 


 









 





(b) Notwithstanding this Amendment and Restatement, including anything in this Section
1.01 and any related Loan Documents (as such term is defined in the Existing Credit Agreement
and referred to herein, individually or collectively, as the “Existing Credit Documents”),
(i) all of the indebtedness, liabilities and obligations owing by any Person under
the Existing Credit Agreement and other Existing Credit Documents shall continue as
Obligations hereunder, and (ii) each of this Agreement and the Notes and any other Loan Documents
(as defined herein) that is amended and restated in connection with this Agreement is given as a
substitution of and modification of, and not as a payment of or novation of, the indebtedness,
liabilities and obligations of the Borrower under the Existing Credit Agreement or any Existing
Credit Document, and neither the execution and delivery of such documents nor the consummation of
any other transaction contemplated hereunder is intended to constitute a novation of the Existing
Credit Agreement or of any of the other Existing Credit Documents or any obligations thereunder.
Upon the effectiveness of this Agreement, all Committed Loans and Swing Line Loans (each as defined
in the Existing Credit Agreement) owing by the Borrower and outstanding under the Existing Credit
Agreement (collectively, the “Existing Loans”) shall continue as Committed Loans and Swing
Line Loans, respectively, hereunder and shall constitute advances hereunder, and all Letters of
Credit (as defined in the Existing Credit Agreement) outstanding under the Existing Credit
Agreement and any of the Existing Credit Documents (collectively, the “Existing Letters of
Credit”) shall continue as Letters of Credit hereunder.



(c) Immediately prior to the effectiveness of this Agreement, the Commitments (as defined in
the Existing Credit Agreement) of the Existing Lenders and the outstanding amounts of the Existing
Loans held by the Existing Lenders are set forth on Schedule A.



(d) Simultaneously with the Effective Date, the outstanding amount of all Existing Loans shall
be reallocated in accordance with the Commitments hereunder as set forth on Schedule 2.01,
and the requisite assignments shall be deemed to be made in amounts from each Lender to each other
Lender, with the same force and effect as if such assignments were evidenced by the applicable
Assignments and Assumptions (as defined in the Existing Credit Agreement) under the Existing Credit
Agreement but without the payment of any related assignment fee, and no other documents or
instruments shall be, or shall be required to be, executed in connection with such assignments (all
of which such requirements are hereby waived);



(e) Simultaneously with the Effective Date and after giving effect the reallocation
contemplated by Section 1.01(d), the Commitments of each of the Lenders following the
Effective Date shall as set forth on Schedule 2.01.



1.02 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



“Acquisition” means the acquisition of (i) an equity or other ownership interest in
another Person (including the purchase of an option, warrant or convertible or similar type
security to acquire such an interest at the time it becomes exercisable by the holder thereof),
whether by purchase of such equity or other ownership interest or upon the exercise of an option or
warrant for, or conversion of securities into, such equity or other ownership interest, which,
following such acquisition, would result in the assets and liabilities of such Person being
included in CSI’s consolidated balance sheet, or (ii) assets of another Person which constitute all
or substantially all of the assets of such Person or of a line or lines of business conducted by
such Person, but
shall not include the acquisition of real property irrespective of what percentage such real
estate may represent of the assets of the seller thereof.


 


2









 





“Additions or Enhancements” means with respect to any Borrowing Base Property any
improvements, expansions, additions, alterations, betterments or appurtenances thereto.



“Adjusted Consolidated Total Asset Value” means, as of any date, an amount equal to
(a) Consolidated Total Asset Value as of such date, minus (b) the portion of Consolidated
Total Asset Value as of such date attributable to all Excluded Subsidiaries as of such date.



“Adjusted Property EBITDA” means with respect to each Property owned by the Borrower
or any Subsidiary (other than a Development Property or Unimproved Land) for any period (without
duplication): (a) net income (loss) of such Property for such period determined in accordance with
GAAP, exclusive of the following (but only to the extent included in determination of such net
income (loss)): (i) depreciation and amortization expense; (ii) total interest expense of such
Property, including capitalized interest not funded under a construction loan interest reserve
account, determined in accordance with GAAP for such period; (iii) income tax expense; and (iv)
extraordinary or non-recurring gains and losses; less (b) Capital Reserves.



“Administrative Agent” or “Agent” means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor administrative agent.



“Administrative Agent’s Office” means Agent’s address and, as appropriate, account as
set forth on Schedule 11.02, or such other address or account as Agent may from time to time notify
Borrower and Lenders.



“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by Agent.



“Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common
Control with, the Person specified.




“Aggregate Commitments” means the Commitments of all Lenders.




“Agreement” means this Credit Agreement.



“Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time, subject to adjustment as provided in Section 2.17. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 9.02 or if the Aggregate Commitments
have expired, then the Applicable Percentage of each Lender shall be determined based on the
Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable.


 


3









 





“Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by
Agent pursuant to Section 7.02(b):



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	Applicable Rate	 
	Pricing	 	 	 	 	Eurodollar Rate and	 	 	 	 
	Level	 	 	Total Leverage Ratio	 	Letters of Credit	 	 	Base Rate	 
	1	 	 	 	< 0.40:1
	 	 	2.75	%	 	 	1.75	%
	2	 	 	 	≥ 0.40:1 but < 0.50:1
	 	 	3.00	%	 	 	2.00	%
	3	 	 	 	≥ 0.50:1 but < 0.60:1
	 	 	3.25	%	 	 	2.25	%
	4	 	 	 	≥ 0.60:1
	 	 	3.50	%	 	 	2.50	%






Any increase or decrease in the Applicable Rate resulting from a change in the Total Leverage Ratio
shall become effective as of the first Business Day of the month immediately following the date a
Compliance Certificate is delivered pursuant to Section 7.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then one Pricing Level higher than the previously applicable Pricing Level (unless already
at Pricing Level 4) shall apply as of the first Business Day of the month following the date such
Compliance Certificate was required to have been delivered. The Applicable Rate in effect from the
Effective Date until delivery of the Compliance Certificate for the fiscal quarter ending March 31,
2011 shall be determined based upon Pricing Level 2.



“Appraisal Requirements” means, collectively, those standards, policies, requirements
and provisions regarding valuation of Borrowing Base Properties set forth in Schedule
5A.04(a), as it may be amended from time to time.



“Appraised Value” means, with respect to any Eligible Property, on an “as-is” basis,
the lesser of its (i) Leased Fee Value and (ii) Fee Simple Value, as determined by a Qualified
Appraiser; provided, however, if any entity (other than CSI or any Affiliate thereof) shall have a
contractual right to purchase any Pledged Property from Borrower or any Guarantor, the Appraised
Value of such Eligible Property shall be deemed to be the purchase price under such option, but
only to the extent such purchase price is less than the Appraised Value as determined under
clause (i) or (ii), as appropriate.



“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.



“Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated (successor by
merger to Banc of America Securities LLC), and KeyBanc Capital Markets, each in its capacity as a
joint lead arranger and joint book manager.



“Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 
11.06(b)), and accepted by Agent, in substantially the form of Exhibit F or
any other form approved by Agent.


 


4









 





“Audited Financial Statements” means the audited consolidated balance sheet of CSI and
its Subsidiaries for the fiscal year ended December 31, 2009, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal year,
including the notes thereto.



“Availability Period” means the period from and including the Effective Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 9.02.




“Available Amount” means, as of the date of determination thereof, the lesser of:




(a) the Total Collateral Value;




(b) the Synthetic DSCR Principal Amount; and




(c) the Aggregate Commitments.



The Available Amount shall be calculated on a quarterly basis, and, upon the request of the
Required Lenders, upon each borrowing under the Senior Credit Facility.



“Available Amount Certificate” has the meaning specified in Section
4.01(a)(xiv).




“Bank of America” means Bank of America, N.A. and its successors.



“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly
announced from time to time by the Agent as its “prime rate,” and (c) the Eurodollar Rate plus
1.00%. The “prime rate” is a rate set by the Agent based upon various factors including the Agent
’s costs and desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such prime rate announced by the Agent shall take effect at the opening of
business on the day specified in the public announcement of such change.




“Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.




“Base Rate Loan” means a Loan that bears interest based on the Base Rate.



“Benefited Parties” means, collectively, the Agent and the Lenders and affiliates
thereof party to a Secured Cash Management Agreement or Secured Hedge Agreement with CSI or any
Subsidiary thereof.



“Borrower” has the meaning specified in the introductory paragraph hereto.


 


5









 






“Borrower Materials” has the meaning specified in Section 7.02.



“Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.



“Borrowing Base Property” means each Pledged Property identified as constituting a
part of the Borrowing Base on Schedule 5A.04(b), as it may be updated, amended or replaced
from time to time, in accordance with the terms hereof. Notwithstanding the granting of a lien of
a Mortgage with respect to any Pledged Property, such Pledged Property shall only be deemed to
constitute a Borrowing Base Property so long as such Pledged Property continues to meet the
requirements set forth in the definition of “Eligible Property”. If a survey is required for such
Pledged Property pursuant to Section 7.17, such Pledged Property shall only be deemed to
constitute a Borrowing Base Property if the requirements of Section 7.17 have been
satisfied.




“Borrowing Base” means, collectively, the Borrowing Base Properties.



“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.



“Capital Reserves” means, for any period and with respect to a Property, an amount
equal to (a) $0.40 per square foot of such Property times (b) a fraction, the numerator of
which is the number of days in such period and the denominator of which is 365. Any portion of a
Property leased under a ground lease to a third party that owns the improvements on such portion of
such Property shall not be included in the determination of Capital Reserves. If the term “Capital
Reserves” is used without reference to any specific Property, then the amount shall be determined
on an aggregate basis with respect to all Properties of CSI and its Subsidiaries and the
appropriate pro rata share of all square footage in Properties owned by Unconsolidated Affiliates.



“Capitalized Lease Obligations” means obligations under a lease that are required to
be capitalized for financial reporting purposes in accordance with GAAP. The amount of a
Capitalized Lease Obligation is the capitalized amount of such obligation as would be required to
be reflected on a balance sheet of the applicable Person prepared in accordance with GAAP as of the
applicable date.



“Cash Collateralize” means to pledge and deposit with or deliver to the Agent, for the
benefit of the Agent, L/C Issuer, Swing Line Lender (as applicable) or the Lenders (as applicable),
as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of
Lenders to fund participations in respect of either thereof (as the context may require), cash or
deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting from such
collateral shall agree in its sole discretion, other credit support, in each case pursuant to
documentation in form and substance satisfactory to (a) the Agent and (b) the L/C Issuer or the
Swing Line Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the
foregoing and shall include the proceeds of such cash collateral and other credit support.


 


6









 





“Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements.



“Cash Management Bank” means any Person that, (a) at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its
Affiliate) becomes a Lender, is a party to a Cash Management Agreement in each case in its capacity
as a party to such Cash Management Agreement.



“Change in Law” means (a) any change arising from the enactment or enforcement of the
Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended, or any rules,
regulations, interpretations, guidelines or directives promulgated thereunder, and (b) the
occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking
effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any Governmental
Authority or (iii) the making or issuance of any request, guideline or directive (whether or not
having the force of law) by any Governmental Authority.




“Change of Control” means, an event or series of events by which:



(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, any person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan, and any person Controlled by the Chairman of the Board of Directors
or the Chief Executive Officer of CSI) becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed
to have “beneficial ownership” of all securities that such person or group has the right to
acquire, whether such right is exercisable immediately or only after the passage of time (such
right, an “option right”)), directly or indirectly, of 33% or more of the equity securities
of CSI entitled to vote for members of the board of directors or equivalent governing body CSI on a
fully-diluted basis (and taking into account all such securities that such person or group has the
right to acquire pursuant to any option right);



(b) during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of CSI cease to be composed of individuals (i) who
were members of that board or equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of such election or nomination at
least a majority of that board or equivalent governing body or (iii) whose election or nomination
to that board or other equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or nomination
at least a majority of that board or equivalent governing body (excluding, in the case of both
clause (ii) and clause (iii), any individual whose initial nomination for, or
assumption of office as, a member of that board or equivalent governing body occurs as a result of
an actual or threatened solicitation of proxies or consents for the election or removal of one or
more directors by any person or group other than a solicitation for the election of one or more
directors by or on behalf of the board of directors);


 


7









 





(c) any Person other than CSI or CS Business Trust I (or any successor thereto that is
wholly-owned by CSI and is a Guarantor) shall become the general partner of Borrower; or



(d) any Person other than CSI shall be the beneficial owner, directly or indirectly, of any
interests or be the beneficiary of CS Business Trust I or CS Business Trust II.



“Closing Date” means March 10, 2008, being the date all conditions precedent to the
effectiveness of the Existing Credit Agreement were satisfied.




“Code” means the Internal Revenue Code of 1986.



“Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to
Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c)
purchase participations in Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement.



“Collateral” means, collectively, all property of CSI, the Borrower or any Subsidiary
or any other Person in which the Agent or any Lender is granted a Lien as security for all or any
portion of the Obligations under any of the Security Instruments.



“Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by
each of the Lenders pursuant to Section 2.01.




“Committed Loan” has the meaning specified in Section 2.01.



“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit A.



“Compliance Certificate” means a certificate substantially in the form of Exhibit
E.



“Consolidated Adjusted EBITDA” means for any period for CSI and its Subsidiaries on a
consolidated basis (without duplication):



(a) net income (loss) of CSI and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP, plus the following (but only to the extent included in the
determination of such net income (loss)): (i) depreciation and amortization expense; (ii)
Consolidated Interest Expense; (iii) income tax expense; and (iv) extraordinary or non-recurring
losses; minus (but only to the extent included in the determination of such net income
(loss)) extraordinary or non-recurring gains; plus


 


8









 





(b) CSI’s pro rata share of net income (loss) of Unconsolidated Affiliates for such period
determined on a consolidated basis, in accordance with GAAP, plus the following (but only
to
the extent included in the determination of such net income (loss)): (i) depreciation and
amortization expense; (ii) interest expense (without duplication of any amounts excluded as
Consolidated Interest Expense under clause (a)(ii) above); (iii) income tax expense; and
(iv) extraordinary or non-recurring losses of Unconsolidated Affiliates; minus (but only to
the extent included in the determination of such net income (loss)) extraordinary or non-recurring
gains of Unconsolidated Affiliates; plus




(c) inter-company eliminations related to Erdman and its subsidiaries; less




(d) Capital Reserves.



Consolidated Adjusted EBITDA shall be adjusted to remove any impact from straight line rent
leveling adjustments required under GAAP and amortization of intangibles pursuant to Statement No.
141 of the Financial Accounting Standards Board (FAS 141).



“Consolidated Fixed Charges” means, for any period, the sum of (a) Consolidated
Interest Expense for such period, (b) all regularly scheduled principal payments paid or payable
with respect to Consolidated Total Indebtedness of CSI and its Subsidiaries during such period
(other than any balloon, bullet or similar principal payment that repays such Indebtedness in
full), and (c) all Preferred Dividends paid during such period, including the pro rata share of the
Preferred Dividends paid by Unconsolidated Affiliates.



“Consolidated Interest Expense” means, for any period for CSI and its Subsidiaries,
without duplication, (a) total interest expense of CSI and its Subsidiaries, including capitalized
interest not funded under a construction loan interest reserve account, determined on a
consolidated basis in accordance with GAAP for such period, plus (b) the pro rata share of
interest expense (calculated in the manner set forth in clause (a)) of Unconsolidated
Affiliates for such period.



“Consolidated Recourse Indebtedness” means, at any time, the aggregate outstanding
principal amount of all Recourse Indebtedness of CSI and its Subsidiaries at such time on a
consolidated basis.



“Consolidated Tangible Net Worth” means, as of a given date with respect to CSI and
its Subsidiaries on a consolidated basis in accordance with GAAP, (a) the stockholders’ equity of
CSI and its Subsidiaries determined on a consolidated basis, plus (b)(i) accumulated
depreciation and amortization and (ii) (to the extent deducted in determining stockholders’ equity
of CSI and its Subsidiaries) minority interests in operating partnerships, determined in accordance
with GAAP, minus (c) the following (to the extent reflected in determining stockholders’
equity of CSI and its Subsidiaries): (i) the amount of any write-up in the book value of any assets
contained on CSI’s consolidated balance sheet resulting from revaluation thereof or any write-up in
excess of the cost of such assets acquired, and (ii) all amounts appearing on the assets side of
CSI’s consolidated balance sheet for assets which would be classified as intangible assets under
GAAP, all determined on a consolidated basis.


 


9









 





“Consolidated Total Asset Value” means, as of any date, the sum of all of the
following of the Borrower and its Subsidiaries, on a consolidated basis, determined in accordance
with GAAP applied on a consistent basis, without duplication: (a) cash, cash equivalents and the
value
of marketable securities, plus (b) with respect to each Property owned by the Borrower or any
Subsidiary (other than a Development Property or Unimproved Land), the quotient of (i) Adjusted
Property EBITDA attributable to such Property for the fiscal quarter most recently ended times 4,
divided by (ii) 0.080, plus (c) the GAAP book value of all Properties acquired during the most
recent four fiscal quarters, plus (d) the GAAP book value all Development Properties, plus (e) the
portion of Consolidated Adjusted EBITDA attributable to Erdman and its Subsidiaries on a
consolidated basis determined in accordance with GAAP applied on a consistent basis for the four
consecutive fiscal quarters most recently ended times a multiple of 8.0 times (not to exceed 15% of
Consolidated Total Asset Value), plus (f) the GAAP book value of Unimproved Land, Mortgage
Receivables and other promissory notes. For purposes of this definition, the Borrower’s pro rata
share of assets held by Unconsolidated Affiliates (excluding assets of the type described in the
immediately preceding clause (a)) will be included in Consolidated Total Asset Value
calculations consistent with the above described treatment for wholly owned assets. For purposes
of determining Consolidated Total Asset Value, Net Operating Income from Properties acquired or
disposed of by the Borrower or any Subsidiary during the immediately preceding four fiscal quarters
shall be excluded.



“Consolidated Total Indebtedness” means all Indebtedness of CSI and all of its
Subsidiaries determined on a consolidated basis and shall include (without duplication) the pro
rata share of the Indebtedness of CSI’s Unconsolidated Affiliates.



“Construction-in-Process” means cash expenditures for land and improvements (including
indirect costs internally allocated and development costs) determined in accordance with GAAP on
all Properties that are under development or are scheduled to commence development within 12
months.



“Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



“CS Business Trust I” means CS Business Trust I, a Maryland statutory trust, and the
general partner of the Borrower.



“CS Business Trust II” means CS Business Trust II, a Maryland statutory trust, and a
limited partner of the Borrower.




“CSI” has the meaning specified in the introductory paragraph hereto.


 


10









 





“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



“Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



“Default Rate” means (a) when used with respect to Obligations other than L/C Fees, an
interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable
to Base Rate Loans plus (iii) 2% per annum; provided, however, that with
respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest
rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum,
and (b) when used with respect to L/C Fees, a rate equal to the Applicable Rate plus 2% per
annum.



“Defaulting Lender” means, subject to Section 2.17(b), any Lender that, as
determined by the Agent, (a) has failed to perform any of its funding obligations hereunder,
including in respect of its Loans or participations in respect of Letters of Credit or Swing Line
Loans, within three Business Days of the date required to be funded by it hereunder (it being
understood that a Lender is not a Defaulting Lender solely as a result of its refusal to fund due
to a good faith belief by such Lender that the Borrower has not met the conditions necessary to
obtain a funding), (b) has notified the Borrower or the Agent that it does not intend to comply
with its funding obligations or has made a public statement to that effect with respect to its
funding obligations hereunder or under other agreements in which it commits to extend credit (it
being understood that a Lender is not a Defaulting Lender solely as a result of its refusal to fund
under other agreements due to a good faith belief by such Lender that the applicable borrower under
such other agreement has not met the conditions necessary to obtain a funding thereunder), (c) has
failed, within three Business Days after request by the Agent or the Borrower, to confirm in a
manner satisfactory to the Agent that it will comply with its funding obligations (provided
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of
such written confirmation by the Agent) , or (d) has, or has a direct or indirect parent company
that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver,
conservator, trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or a custodian appointed for it, or
(iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence
in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender
solely by virtue of the ownership or acquisition of any equity interest in that Lender or any
direct or indirect parent company thereof by a Governmental Authority.



“Development Property” means either (i) a Property that is either under development as
Construction-in-Process or is scheduled to commence development within twelve (12) months or (ii) a
Property on which the improvements (other than tenant improvements on unoccupied space) related to
the development thereof have been completed for less than twelve (12) months but the Property has
not achieved an Occupancy Rate of at least 80%. A Development Property on which all improvements
(other than tenant improvements on unoccupied space) related to the development of such Property
have been completed for twelve (12) months or more shall cease to constitute a Development Property
and shall be treated as a Stabilized Property regardless of its Occupancy Rate.


 


11









 





“Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.




“Dollar” and “$” mean lawful money of the United States.



“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



“Effective Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 11.01.



“Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 11.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 11.06(b)(iii)).



“Eligible Property” means a Property which satisfies all of the following
requirements, as evidenced in an Eligible Property Compliance Certificate:



(a) such Property is fully developed as (i) a medical office property, (ii) an ambulatory
surgery property, or (iii) other property customarily constituting an asset of a REIT specializing
in medical office properties;



(b) such Property is 100% owned by a Guarantor, or 100% leased by a Guarantor under a Ground
Lease reasonably acceptable to the Agent as to which (i) Lease Party Documents have been delivered
to the Agent and (ii) the base rental payments to lessors or their assignees by such Persons under
such Ground Lease are not delinquent for more than 60 days;



(c) such Property, or any interest of the Borrower or any Guarantor therein, is free of all
Liens except Permitted Encumbrances;



(d) the Borrower, directly or indirectly through the Guarantor that owns or leases such
Property, has the right to take the following actions without the need to obtain the consent of any
Person, or to the extent any consent is required by the Ground Lease, such consent has been
obtained: (x) to sell, transfer or otherwise dispose of such Property in the case of an owned
Property or (y) to create a lien on such Property as security for Indebtedness of the Borrower or
such Guarantor, in the case of a leased Property;



(e) such Property is free of all structural defects or major architectural deficiencies, title
defects, environmental conditions or other adverse matters except for defects, deficiencies,
conditions or other matters individually or collectively which are not material to the profitable
operation of such Property; and


 


12









 





(f) such Property is in material compliance with all Environmental Laws as evidenced by a
Phase I environmental assessment (and, if required or recommended by the results of the Phase I
environmental assessment, a Phase II environmental assessment) in form and substance reasonably
satisfactory to the Agent, and dated not earlier than six months prior to
the date of the Eligible Property Compliance Certificate for such Property provided,
however, with respect to each of the Existing Eligible Properties, such previously approved
Phase I environmental assessments shall be satisfactory to the Agent if supplemented by an
environmental questionnaire delivered by the owner or ground lessee of such Existing Eligible
Property, in form and substance reasonably satisfactory to the Agent and dated not earlier than six
months prior to the Effective Date; or



(g) if such Property does not meet the above criteria, such Property is otherwise acceptable
to the Required Lenders in their sole and absolute discretion.



“Eligible Property Compliance Certificate” means a certificate of the Borrower, dated
the date of submission to the Agent of the items required thereby, evidencing the compliance by a
particular Eligible Property with items (a) through (f) of the definition of
“Eligible Property”, or, with respect to an Eligible Property qualifying as such under item
(g) of the definition of “Eligible Property,” evidencing compliance with those items required
by the Required Lenders, in the form of Exhibit H.



“Environmental Indemnity Agreement” or “Environmental Indemnity Agreements”
means, individually and collectively, as the context requires, each of the Environmental Indemnity
Agreements executed by the Borrower, CSI, or any other Guarantor with respect to the Pledged
Properties, substantially in the form of Exhibit M or, with respect to an Existing Pledged
Property, an Environmental Indemnity Agreement executed by the Borrower, CSI or any other Guarantor
with respect to such Existing Pledged Property, as reaffirmed on or about the date hereof.



“Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of
Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.



“Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests),
and all of the other ownership or profit interests in such Person (including partnership,
member or trust interests therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are outstanding on any date of determination.


 


13









 





“Equity Issuance” means any issuance by CSI or any Subsidiary of any Equity Interest
in such Person and shall in any event include (x) the issuance of any Equity Interest upon the
conversion or exchange of any security constituting Indebtedness that is convertible or
exchangeable, or is being converted or exchanged, for Equity Interests or (y) any additional
capital contribution, by way of capital call or otherwise, in respect of any equity interest
previously issued.




“Erdman” means the Erdman Company.




“ERISA” means the Employee Retirement Income Security Act of 1974.



“ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).



“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A
of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA
Affiliate.




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




“Eurodollar Rate” means




(a) for any Interest Period with respect to a Eurodollar Rate Loan, a rate per annum
determined by Agent pursuant to the following formula; and



	 	 	 	 	 	 	 
	Eurodollar Rate

	 	=
	 	Eurodollar Base Rate	 	 
	 	 	 
	 	 
	 	 	1.00 – Eurodollar Reserve Percentage	 	 





 


14









 






(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate
per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two
London Banking Days prior to such date for Dollar deposits being delivered in the London
interbank market for a term of one month commencing that day
or (ii) if such published rate is not available at such time for any reason, the rate
per annum determined by the Agent to be the rate at which deposits in Dollars for delivery
on the date of determination in same day funds in the approximate amount of the Base Rate
Loan being made or maintained and with a term equal to one month would be offered by the
Agent ’s London Branch to major banks in the London interbank Eurodollar market at their
request at the date and time of determination.




Where,




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




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




“London Banking Day” means any day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank Eurodollar market.



“Eurodollar Rate Loan” means a Committed Loan that bears interest at a rate based on
the Eurodollar Rate.




“Event of Default” has the meaning specified in Section 9.01.



“Excluded Subsidiary” means (i) any Subsidiary (a) holding title to assets which are
or are to become collateral for any Non-recourse Indebtedness of such Subsidiary permitted pursuant
to Section 8.03(g); (b) which is prohibited from guarantying the Indebtedness of any other
Person pursuant to (i) any document, instrument or agreement evidencing such secured Indebtedness
or (ii) a provision of such Subsidiary’s Organization Documents, which provision
was included in such Subsidiary’s Organization Documents as a condition to the extension of
such secured Indebtedness; (c) that is not wholly-owned, directly or indirectly, by CSI; or (d)
that at formation was designated by CSI as a future joint venture and (ii) Verdugo Management, LLC,
a California limited liability company.


 


15









 





“Excluded Taxes” means, with respect to Agent, any Lender, the L/C Issuer or any other
recipient of any payment to be made by or on account of any obligation of Borrower hereunder, (a)
taxes imposed on or measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any
branch profits taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which Borrower is located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by Borrower under Section 11.13), any withholding tax that
is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with Section
3.01(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office (or assignment), to receive additional amounts
from Borrower with respect to such withholding tax pursuant to Section 3.01(a).



“Existing Borrowing Base Properties” means the “Borrowing Base Properties” which have
met the criteria for, and been identified as, “Borrowing Base Properties” under the Existing Credit
Agreement and meeting all of the requirements of Section 5A.04 as of the Effective Date, as
set forth on Schedule 1.01(a) hereto.




“Existing Credit Agreement” has the meaning specified in the Recitals hereto.



“Existing Eligible Properties” means the “Eligible Properties” which have met the
criteria for, and been identified as, “Eligible Properties” under the Existing Credit Agreement and
as set forth on Schedule 1.01(b) hereto.



“Existing Letters of Credit” means those letters of credit identified on Schedule
1.01(c).



“Existing Pledged Properties” means the “Pledged Properties” which have met the
criteria for, and been identified as, “Pledged Properties” under the Existing Credit Agreement and
as set forth on Schedule 1.01(d) hereto.



“Facility Guaranty” means, collectively, the amended and restated guaranty by CSI of
Borrower’s Obligations as set forth in Article V and the Guaranty, as each of the same may be
amended, restated, modified or supplemented from time to time.



“Facility Interest Expense” means, for any period, the total amount of interest
payable hereunder for such period plus L/C Fees for such period plus Unused Fees for such period.


 


16









 





“Facility Termination Date” means the date as of which all of the following shall have
occurred: (a) Borrower shall have permanently terminated the credit facilities under the Loan
Documents by final payment in full of all Outstanding Amounts, together with all accrued and
unpaid interest and fees thereon (other than (i) the undrawn portion of Letters of Credit and
(ii) all L/C Fees relating thereto accruing after such date (which fees shall be payable solely for
the account of the L/C Issuer and shall be computed (based on interest rates and the Applicable
Rate then in effect) on such undrawn amounts to the respective expiry dates of the Letters of
Credit), which Obligations shall have been fully Cash Collateralized or as to which other
arrangements satisfactory to Agent and the L/C Issuer shall have been made); (b) all Commitments
shall have terminated or expired; (c) the obligations and liabilities of Borrower and each other
Loan Party under all Secured Cash Management Agreements and Secured Hedge Agreements shall have
been fully, finally and irrevocably paid and satisfied in full and the Secured Cash Management
Agreements and Secured Hedge Agreements shall have expired or been terminated, or other
arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made
with respect thereto; and (d) Borrower and each other Loan Party shall have fully, finally and
irrevocably paid and satisfied in full all of their respective obligations and liabilities arising
under the Loan Documents not covered in the foregoing clauses (a) through (c)
(except for future obligations consisting of continuing indemnities and other contingent
Obligations of Borrower or any Loan Party that may be owing to any of its Related Parties or any
Lender pursuant to the Loan Documents and expressly survive termination of this Agreement or any
other Loan Document).



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



“Fee Letter” means the letter agreement, dated January 19, 2011, among Borrower, Agent
and MLPFS with respect to the credit facilities contemplated by this Agreement.



“Fee Simple Value” means the appraised value of a property for which the owner has
absolute ownership, unencumbered by any other interest or estate subject only to Permitted
Encumbrances, and the limitations imposed by the governmental powers of taxation, eminent domain,
police power and escheat.



“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which Borrower is resident for tax purposes. For purposes of this definition,
the United States, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.



“FRB” means the Board of Governors of the Federal Reserve System of the United States.


 


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“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.



“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 activities.



“Funds From Operations” means, with respect to CSI and its Subsidiaries and for a
given period, (a) net income (loss) of CSI and its Subsidiaries determined on a consolidated basis
for such period minus (or plus) (b) gains (or losses) from debt restructuring and
sales of property determined on a consolidated basis during such period plus (c)
depreciation and amortization expense (other than amortization of deferred financing costs)
plus (d) extraordinary or non-recurring gains (or losses) plus (e) inter-company
eliminations related to Erdman and its Subsidiaries plus (f) any Restricted Payment
deducted in the determination of net income (loss) of CSI and its Subsidiaries determined on a
consolidated basis for such period, all after adjustment for unconsolidated partnerships and joint
ventures. Adjustments for unconsolidated entities will be calculated to reflect Funds From
Operations on the same basis.



“GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



“Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).




“Grantor” shall have the meaning specified in Section 5A.03.



“Grantor Authority Documents” means with respect to the applicable Grantor associated
with an Eligible Property (to the extent not previously delivered):




(a) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of such Grantor as the Agent may require
evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with the Loan
Documents to which such Grantor is a party;


 


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(b) such documents and certifications as the Agent may reasonably require (x) to
evidence that such Grantor is duly organized or formed, and (y) to evidence that such
Grantor is validly existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the conduct of its
business requires such qualification, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect;




(c) a certificate of a Responsible Officer of such Grantor either (A) attaching copies
of all consents, licenses and approvals required in connection with the execution, delivery
and performance by such Grantor and the validity against such Grantor of the Loan Documents
to which it is a party, and such consents, licenses and approvals shall be in full force and
effect, or (B) stating that no such consents, licenses or approvals are so required.



“Ground Lease” means, with respect to any Borrowing Base Property, a ground lease or
air rights lease containing the following terms and conditions: (a) a remaining term (inclusive of
any unexercised extension options exercisable at Borrower’s sole discretion) of (i) if such
property is an Existing Eligible Property, 40 years or more from the Closing Date or (ii) if such
property is not an Existing Eligible Property, 40 years or more from the date such property becomes
a Borrowing Base Property; (b) the right of the lessee to mortgage and encumber its interest in the
leased property without the consent of the lessor or for which the consent of the lessor has been
obtained; (c) the obligation of the lessor to give the holder of any mortgage lien on such leased
property written notice of any defaults on the part of the lessee and agreement of such lessor that
such lease will not be terminated until such holder has had a reasonable opportunity to cure or
complete foreclosures, and fails to do so; (d) reasonable transferability of the lessee’s interest
under such lease, including ability to sublease; and (e) such other rights customarily required by
mortgagees making a loan secured by the interest of the holder of the leasehold estate demised
pursuant to a ground lease. Notwithstanding the foregoing, the lease of the Property known as
Gaston MOB shall constitute a Ground Lease so long as such lease satisfies all of the foregoing
requirements other than clause (a) above.



“Ground Lessor Agreement” means, with respect to any Pledged Property subject to a
Ground Lease, a Consent and Agreement Regarding Performance Under Ground Lease executed by the
Agent, the owner and the ground lessee of such Pledged Property, in substantially the form attached
hereto as Exhibit L or such other form as may be reasonably acceptable to the Agent in
consideration of the terms of the related Ground Lease, or, with respect to an Existing Pledged
Property, if required by the Agent, an affirmation of, and amendment to, Landlord’s Consent and
Agreement Regarding Performance Under Ground Lease executed by the Agent, the owner and the ground
lessee of such Existing Pledged Property, as reaffirmed on or about the date hereof.


 


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“Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level of income or cash
flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.




“Guarantor’s Obligations” has the meaning specified in Section 5.01.



“Guarantors” means, collectively or individually as the context may indicate, CSI, CS
Business Trust I, CS Business Trust II, and the Subsidiary Guarantors.



“Guaranty” means the Amended and Restated Guaranty Agreement made by the Subsidiary
Guarantors and CS Business Trust I and CS Business Trust II in favor of Agent for the benefit of
the Lenders, substantially in the form of Exhibit G.



“Guaranty Joinder Agreement” means each Guaranty Joinder Agreement, substantially in
the form thereof attached to the Guaranty, executed and delivered by a Guarantor to Agent pursuant
to Section 7.13, Section 10.10 or otherwise.



“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



“Hedge Bank” means any Person that, (a) at the time it enters into a Secured Hedge
Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate)
becomes a Lender, is a party to a Swap Contract permitted under Article VIII, in each case
in its capacity as a party to such Secured Hedge Agreement.


 


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“Indebtedness” means, with respect to a Person, at the time of computation thereof,
all of the following (without duplication): (a) all obligations of such Person in respect of money
borrowed (other than trade debt incurred in the ordinary course of business which is not more than
60 days past due); (b) all obligations of such Person, whether or not for money borrowed (i)
represented by notes payable, or drafts accepted, in each case representing extensions of credit,
(ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting purchase
money indebtedness, conditional sales contracts, title retention debt instruments or other similar
instruments, upon which interest charges are customarily paid or that are issued or assumed as full
or partial payment for property or services rendered; (c) Capitalized Lease Obligations of such
Person; (d) all reimbursement obligations of such Person under any letters of credit or acceptances
(whether or not the same have been presented for payment); (e) all Off-Balance Sheet Obligations of
such Person; (f) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Mandatorily Redeemable Stock issued by such Person or any other
Person, valued at the greater of its voluntary or involuntary liquidation preference plus accrued
and unpaid dividends; (g) all obligations of such Person in respect of any purchase obligation,
repurchase obligation, takeout commitment or forward equity commitment, in each case evidenced by a
binding agreement (excluding any such obligation to the extent the obligation can be satisfied by
the issuance of Equity Interests (other than Mandatorily Redeemable Stock) at the option of such
Person); (h) net obligations under any Swap Contract not entered into as a hedge against existing
Indebtedness, in an amount equal to the Swap Termination Value thereof; (i) all Indebtedness of
other Persons which such Person has Guaranteed or is otherwise recourse to such Person (except for
guaranties of customary exceptions for fraud, misapplication of funds, environmental indemnities
and other similar exceptions to recourse liability (but not exceptions relating to bankruptcy,
insolvency, receivership or other similar events)); (j) all Indebtedness of another Person secured
by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any lien on property or assets owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness or other payment obligation; and (k)
such Person’s pro rata share of the Indebtedness of any Unconsolidated Affiliate of such Person.
Indebtedness of any Person shall include Indebtedness of any partnership or joint venture in which
such Person is a general partner or joint venturer to the extent of such Person’s pro rata share of
the ownership of such partnership or joint venture (except if such Indebtedness, or portion
thereof, is recourse to such Person, in which case the greater of such Person’s pro rata portion of
such Indebtedness or the amount of the recourse portion of the Indebtedness, shall be included as
Indebtedness of such Person). All Loans and L/C Obligations shall constitute Indebtedness of
Borrower.




“Indemnified Taxes” means Taxes other than Excluded Taxes.




“Indemnitees” has the meaning specified in Section 11.04(b).




“Information” has the meaning specified in Section 11.07.



“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan, on any day a prepayment under Section
2.05 is made and the Maturity Date; provided, however, that if any Interest
Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three
months after the
beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and
December, on any day a prepayment under Section 2.05 is made and the Maturity Date.


 


21









 





“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by Borrower in its
Committed Loan Notice; provided that:




(a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




(b) any Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the calendar month at the end
of such Interest Period; and




(c) no Interest Period shall extend beyond the Maturity Date.



“Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, (c) purchase, acquisition or other investment in any real property or real property-related
assets (including, without limitation, mortgage loans and other real estate-related debt
investments, investments in unimproved land holdings and Properties, and costs to construct real
property assets under development) or (d) the purchase or other acquisition (in one transaction or
a series of transactions) of assets of another Person that constitute a business unit. Any banking
commitment to make an Investment in any other Person, as well as any option of another Person to
require an Investment in such Person, shall constitute an Investment. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested, without adjustment
for subsequent increases or decreases in the value of such Investment.




“IRS” means the United States Internal Revenue Service.



“ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance).



“Issuer Documents” means with respect to any Letter of Credit, the L/C Application,
and any other document, agreement and instrument entered into by the L/C Issuer and Borrower (or
any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.


 


22









 





“Laws” means, collectively, all international, foreign, United States Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or administration thereof by
any Governmental Authority charged with the enforcement, interpretation or administration thereof,
and all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



“L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable Percentage.



“L/C Application” means an application and agreement for the issuance or amendment of
a Letter of Credit in the form from time to time in use by the L/C Issuer.



“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Committed
Borrowing.



“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



“L/C Expiration Date” means the day that is thirty days prior to the Maturity Date
then in effect (or, if such day is not a Business Day, the next preceding Business Day).




“L/C Fee” has the meaning specified in Section 2.03(i).



“L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



“L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.07. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



“L/C Sublimit” means an amount equal to the lesser of (a) $25,000,000 and (b) the
Available Amount. The L/C Sublimit is part of, and not in addition to, the Aggregate Commitments.



“Lease Party Documents” means, (a) with respect to any Eligible Property, an Estoppel
Certificate substantially in the form attached hereto as Exhibit I, executed by such
tenants of the Eligible Property as Agent shall reasonably require, and a Subordination,
Non-Disturbance and Attornment Agreement substantially in the form attached hereto as Exhibit
J, executed by such tenants of the Eligible Property as Agent shall reasonably require, and the
owner or ground lessee (as applicable) of the Eligible Property or (b) with respect to any Existing
Eligible
Property, an Estoppel Certificate, substantially in the form attached hereto as Exhibit
I dated on or about the date hereof, executed by such tenants of the Existing Eligible Property
as Agent shall reasonably require, and either (i) a Subordination, Non-Disturbance and Attornment
Agreement or (ii) if a tenant has previously provided a Subordination, Non-Disturbance and
Attornment Agreement in connection with an Existing Eligible Property, a Reaffirmation and
Amendment to such Subordination, Non-Disturbance and Attornment Agreement, executed by such tenants
of the Existing Eligible Property as Agent shall reasonably require, and the owner or ground lessee
(as applicable) of the Existing Eligible Property.


 


23









 





“Leased Fee Value” means the appraised value to the lessee thereof of a property for
which the owner has conveyed by lease the rights of use and occupancy of such property to such
lessee.



“Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes Swing Line Lender.



“Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify Borrower and Agent.



“Letter of Credit” means any letter of credit issued hereunder, and shall include the
Existing Letters of Credit.



“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



“Loan” means an extension of credit by a Lender to Borrower under Article II
in the form of a Committed Loan or a Swing Line Loan.



“Loan Documents” means this Agreement (including the Facility Guaranty contained
herein), each Note, if any, each Issuer Document, the Security Instruments, the Lease Party
Documents, the Ground Lessor Agreements, the Environmental Indemnity Agreements, the Fee Letter and
the Guaranty.



“Loan Parties” means, collectively, CSI, Borrower and each other Person (other than
Agent, the L/C Issuer, Swing Line Lender, or any Lender) executing a Loan Document including,
without limitation, each Guarantor.



“Mandatorily Redeemable Stock” means, with respect to any Person, any Equity Interest
of such Person which by the terms of such Equity Interest (or by the terms of any security into
which it is convertible or for which it is exchangeable or exercisable), upon the happening of any
event or otherwise (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise (other than an Equity Interest to the extent redeemable in exchange for common stock
or other equivalent common Equity Interests), (b) is convertible into or
exchangeable or exercisable for Indebtedness or Mandatorily Redeemable Stock, or (c) is
redeemable at the option of the holder thereof, in whole or in part (other than an Equity Interest
which is redeemable solely in exchange for common stock or other equivalent common Equity
Interests); in each case, on or prior to the Maturity Date.


 


24









 





“Material Adverse Effect” means (A) a material adverse change in, or a material
adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent)
or condition (financial or otherwise) of the Borrower and its Subsidiaries, or Borrower and the
Guarantors taken, as a whole; (B) a material impairment of the rights and remedies of the Agent or
any Lender under any loan documentation, or of the ability of the Borrower or any Guarantor to
perform its obligations under any loan documentation to which it is a party; and (C) a material
adverse effect upon the legality, validity, binding effect or enforceability against the Borrower
or any Guarantor of any loan documentation to which it is a party.



“Material Subsidiary” means any direct or indirect Subsidiary of CSI, other than any
Excluded Subsidiary, which either (a) has total assets equal to or greater than five percent (5%)
of the Consolidated Total Asset Value (calculated as of the most recent fiscal period end with
respect to which Agent shall have received financial statements required to be delivered pursuant
to Sections 7.01(a) or (b)), or (b) owns a Borrowing Base Property;
provided, however, that, if the aggregate amount of Consolidated Total Asset Value
attributable to such Subsidiaries is not at least ninety percent (90%) of Adjusted Consolidated
Total Asset Value as of the end of any fiscal quarter, the Borrower (or, in the event the Borrower
has failed to do so within ten days, the Agent) shall designate sufficient additional Subsidiaries
as “Material Subsidiaries” as necessary to eliminate such deficiency, and such designated
Subsidiaries shall for all purposes of this Agreement constitute Material Subsidiaries,
provided, further, however, that any Material Subsidiary shall cease to be
a Material Subsidiary and shall be released immediately from the Guaranty or any obligation to
provide a Guarantee of Borrower’s Obligations, as the case may be, if it or substantially all of
its assets are sold or conveyed in a transaction otherwise permitted under this Agreement.



“Maturity Date” means March 1, 2014, such earlier date upon which the Aggregate
Commitments may be terminated in accordance with the terms hereof or as such date may be extended
pursuant to Section 2.15.



“Mortgage” or “Mortgages” means, individually and collectively, as the context
requires, each of the fee or leasehold mortgages, deeds of trust and deeds to secure debt executed
by the Borrower, CSI, or any other Guarantor and delivered to Agent, granting a Lien to the Agent
(or a trustee for the benefit of the Agent) for the benefit of the Secured Parties in the Pledged
Properties, substantially in the form of Exhibit N or, with respect to an Existing Pledged
Property, an amended and restated fee or leasehold mortgage, deed of trust or deed to secure debt
executed by the applicable Guarantor and delivered to Agent, continuing the Lien granted to the
Agent (or a trustee for the benefit of the Agent) for the benefit of the Secured Parties in such
Existing Pledged Property.



“Mortgage Receivables” means (i) the principal amount of any seller financing provided
by CSI or any Subsidiary thereof to any Person on an arm’s length transaction basis, which is
secured by a mortgage on the real property assets subject to such financing and (ii) collateralized
mortgage obligations that are rated not less “Baa2/BBB” by at least two nationally recognized
rating agency services.


 


25









 





“Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



“Net Operating Income” or “NOI” means, for any Property and for a given
period, an amount equal to (a) the sum of the gross revenues for such Property for such fiscal
period received in the ordinary course of business (excluding pre-paid rents and revenues and
security deposits except to the extent applied in satisfaction of tenants’ obligations for rent)
minus (b) all operating expenses incurred with respect to such Property for such fiscal
period (including an appropriate accrual for property taxes and insurance); provided that
there shall be deducted from such amount the following (to the extent not duplicative of deduction
already taken in the calculation of Net Operating Income), on a pro rata basis for such period,
management expenses computed at an annual rate equal to the greater of (i) 4% of the annualized
gross revenue of such Property and (ii) the annualized amount of management fees actually incurred
with respect to such Property. Borrower may perform the preceding calculation on an aggregate
basis for all such Properties wherever the context would appropriately permit or warrant the use of
an aggregate calculation.



“Net Proceeds” means, with respect to the sale, transfer or other disposition by any
Loan Party of any Equity Interests to any Person other than any Loan Party, as applicable, (a) the
amount of cash (freely convertible into Dollars) received by such Loan Party, from such sale or
other disposition (including, without limitation, any tax refund or tax benefit resulting from a
loss on such sale or other disposition as and when such tax benefit is realized), after (i)
provision for all income or other taxes of CSI and its Subsidiaries measured by or resulting from
such sale or other disposition, (ii) payment of all reasonable third-party brokerage commissions
and other reasonable out-of-pocket fees and expenses to third parties related to such sale or other
disposition, and (iii) deduction of appropriate amounts to be provided by such Loan Party as a
reserve, in accordance with GAAP, against any liabilities associated with such sale, transfer or
other disposition and retained by such Loan Party after such sale or other disposition or (b) with
respect to the issuance of Partnership Units by the Borrower, the GAAP book value assigned to such
Partnership Units upon the issuance thereof.



“Non-recourse Indebtedness” means, with respect to a Person, (a) Indebtedness of such
Person for borrowed money in respect of which recourse for payment (except for customary exceptions
for fraud, fraudulent conveyance, intentional misrepresentation, misappropriation of funds or other
property, misapplication of funds (including without limitation rents, profits, tenant deposits or
insurance or condemnation proceeds), mismanagement or waste, tax, ERISA, environmental and other
regulatory law indemnities, nonpayment of utilities, operations and maintenance expenses and
obligations secured by statutory liens, failure to comply with legal requirements necessary to
maintain the tax-exemption on the interest on such Indebtedness (if applicable), failure to insure
or failure to pay transfer fees and charges due to the lender in connection with any sale or other
transfer of the Property subject to such Indebtedness and any fees and expenses (and interest
thereon) of the holder of such Indebtedness in connection with
the enforcement of such recourse obligations (but not exceptions relating to bankruptcy,
insolvency, receivership or other similar events)) is contractually limited to specific assets of
such Person encumbered by a lien securing such Indebtedness or (b) if such Person is a Single Asset
Entity, any Indebtedness for borrowed money of such Person, in each case, regardless of whether any
other Person is also obligated under such Indebtedness (whether in the form of a guarantee,
collateral security or otherwise).


 


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“Note” means a promissory note made by Borrower in favor of a Lender evidencing Loans
made by such Lender, substantially in the form of Exhibit C-1, or with respect to an
Existing Lender, an amended and restated promissory note made by Borrower in favor of such Existing
Lender evidencing Loans made by such Existing Lender, substantially in the form of Exhibit
C-2.



“Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, whether direct
or indirect (including those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.



“Occupancy Rate” means, with respect to a Property at any time, the ratio, expressed
as a percentage, of (a) the net rentable square footage of such Property actually occupied by
tenants that are not affiliated with Borrower and paying rent at rates not materially less than
rates generally prevailing at the time the applicable lease was entered into, pursuant to binding
leases as to which no monetary default has occurred and has continued unremedied for 30 or more
days to (b) the aggregate net rentable square footage of such Property. For purposes of the
definition of “Occupancy Rate”, a tenant shall be deemed to actually occupy a Property
notwithstanding a temporary cessation of operations for renovation, repairs or other temporary
reason, or for the purpose of completing tenant build-out or that is otherwise scheduled to be open
for business within 90 days of such date. For purposes of determining compliance with Section
7.16 hereof, the aggregate Occupancy Rate for the Borrowing Base shall be computed on an
aggregated basis for all Borrowing Base Properties, consistent with the provisions for determining
the Occupancy Rate for any individual Property as set forth above.



“Off-Balance Sheet Obligations” means liabilities and obligations of CSI, Borrower,
any Subsidiary or any other Person in respect of “off-balance sheet arrangements” (as defined in
the SEC Off-Balance Sheet Rules) which CSI would be required to disclose in the “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” section of its report on
Form 10 Q or Form 10 K (or their equivalents) which CSI is required to file with the SEC. As used
in this definition, the term “SEC Off-Balance Sheet Rules” means the Disclosure in Management’s
Discussion and Analysis About Off Balance Sheet Arrangements, Securities Act Release No. 33-8182,
68 Fed. Reg. 5982 (Feb. 5, 2003) (codified at 17 CFR pts. 228, 229 and 249).


 


27









 





“Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



“Other Taxes” means all present or future stamp, intangible or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any payment made
hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.



“Outstanding Amount” means (i) with respect to Committed Loans and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings
and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of
such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by Borrower of Unreimbursed Amounts.




“Participant” has the meaning specified in Section 11.06(d).



“Partnership Units” means with respect to Borrower, and with respect to each class of
partnership, those units representing an equal undivided fractional share of each item of
Borrower’s income, gain and loss and in distribution of Borrower’s assets.




“PBGC” means the Pension Benefit Guaranty Corporation.



“Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by Borrower or any ERISA Affiliate or to which Borrower or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.



“Permitted Acquisition” means any Acquisition by the Borrower or any of its
Subsidiaries; provided that immediately before and immediately after giving pro forma
effect to any such Acquisition (including any assumption or incurrence of Indebtedness in
connection therewith), no Default shall have occurred and be continuing.



“Permitted Distribution Amount” means, with respect to any period of time, 95% of
Funds From Operations for the relevant period.


 


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“Permitted Encumbrances” means, (a) with respect to any Existing Pledged Property, the
title exceptions shown in Schedule B of the title policy for such Pledged Property submitted to and
approved by the Agent prior to the Effective Date, (b) with respect to any Eligible Property which
shall become a Pledged Property following the Effective Date, the title exceptions shown in
Schedule B of the loan title insurance commitment for such Pledged Property submitted to and
approved by Agent, (c) with respect to any property, any easements, rights-of-ways, restrictions
and other encumbrances affecting real estate which arise after the date such property becomes a
Borrowing Base Property and, individually or in the aggregate, are not substantial in amount and
which do not materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business conducted on such property, and such other
title exceptions submitted in writing to, and approved by, the Agent, and (d) Liens in favor of the
Agent for the benefit of the Secured Parties pursuant to the Security Instruments.



“Permitted Liens” means, with respect to any personal property relating to a Pledged
Property in which a Loan Party has granted a security interest to Agent pursuant to a Mortgage, any
Liens encumbering such personal property which have been submitted in writing to, and approved by,
Agent.



“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by Borrower or, with respect to any such plan that is subject to Section 412 of
the Code or Title IV of ERISA, any ERISA Affiliate.




“Platform” has the meaning specified in Section 7.02.



“Pledged Property” or “Pledged Properties” means individually or collectively
as the context indicates, any Eligible Property or Eligible Properties subject to a Mortgage.



“Preferred Dividends” means, for any period and without duplication, all Restricted
Payments paid during such period on Preferred Equity Interests issued by CSI or any Subsidiary.
“Preferred Dividends” shall not include dividends or distributions (a) paid or payable solely in
Equity Interests (other than Mandatorily Redeemable Stock) payable to holders of such class of
Equity Interests; (b) paid or payable to CSI or any Subsidiary; or (c) constituting or resulting in
the redemption of Preferred Equity Interests, other than scheduled redemptions not constituting
balloon, bullet or similar redemptions in full.



“Preferred Equity Interest” means, with respect to any Person, Equity Interests in
such Person which are entitled to preference or priority over any other Equity Interest in such
Person in respect of the payment of dividends or distribution of assets upon liquidation or both.



“Property” means any parcel of real property owned or leased (in whole or in part) by
Borrower or any Subsidiary and which is located in a state of the United States of America or the
District of Columbia.



“Qualified Appraiser” means a MAI appraiser selected by the Agent or reasonably
acceptable to the Agent.


 


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“Real Property Support Documents” means, with respect to each Borrowing Base Property,
a current survey (or, with respect to an Existing Eligible Property, the previously delivered
survey and title insurance covering over matters that would be disclosed by a current survey to be
provided in the form of updated access, survey and comprehensive endorsements, in form and
substance satisfactory to the Agent), a loan title insurance commitment (or, with respect to an
Existing Eligible Property, an endorsement to the existing title insurance policy updating the
title and policy coverage), a Ground Lessor Agreement (if applicable), Lease Party Documents,
certified rent roll, copies of all tenant leases, evidence that the Property is not in violation of
any applicable zoning requirements, and such other usual and customary documentation for a
Borrowing Base Property as Agent may reasonably require, in each case in form and substance
satisfactory to the Agent. With respect to Existing Eligible Properties, the previously delivered
zoning information and related documentation satisfy any applicable zoning requirements hereunder.



“Recourse Indebtedness” means any Indebtedness of CSI or any of its Subsidiaries that
is not Non-recourse Indebtedness, other than Indebtedness outstanding pursuant to this Agreement
and the other Loan Documents.




“Register” has the meaning specified in Section 11.06(c).



“Registration Statement” means the Registration Statement of CSI on Form S-11,
Registration No. 333-127396, as filed by CSI with the SEC on October 26, 2005.



“REIT” means a real estate investment trust qualified for treatment as such for United
States Federal income tax purposes under Sections 856 through 860 of the Code.



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



“Remaining Development Amount” means (A)(i) the total cost to develop the real
property under construction, including the acquisition of land, as reasonably determined by the
Borrower in good faith minus (ii) the total expenditures to date based on GAAP, times (B) 50%.



“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit
Extension, a L/C Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.



“Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 9.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Lenders.


 


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“Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of a Loan Party. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such
Loan Party.



“Restricted Payment” means (a) any dividend or other distribution, direct or indirect,
on account of any Equity Interest of CSI or any Subsidiary now or hereafter outstanding, except a
dividend payable solely in Equity Interests of identical class to the holders of that class; (b)
any redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any Equity Interest of Borrower or any
Subsidiary now or hereafter outstanding; and (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests of
Borrower or any Subsidiary now or hereafter outstanding.




“Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



“SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



“Secured Cash Management Agreement” means any Cash Management Agreement that is
entered into by and between any Loan Party and any Cash Management Bank.



“Secured Hedge Agreement” means any Swap Contract permitted under Article VIII
that is entered into by and between any Loan Party and any Hedge Bank.



“Secured Parties” means, collectively, Agent and the Lenders, the Hedge Banks and the
Cash Management Banks.



“Secured Recourse Indebtedness” means (i) secured Indebtedness that is not
Non-recourse Indebtedness and (ii) any Guarantee of secured Non-recourse Indebtedness.



“Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the Public Company Accounting
Oversight Board, as each of the foregoing may be amended and in effect on any applicable date
hereunder.



“Security Instruments” means, collectively or individually as the context may
indicate, the Mortgages and all other agreements, instruments and other documents, whether now
existing or hereafter in effect, pursuant to which the Borrower or other Loan Party or any other
Person shall grant or convey to the Agent for the benefit of the Secured Parties a Lien on, or any
other
Person shall acknowledge any such Lien on, property as security for all or any portion of the
Obligations.


 


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“Single Asset Entity” means a Person (other than an individual) that (a) only owns a
single Property; (b) is engaged only in the business of owning, developing and/or leasing such
Property; and (c) receives substantially all of its gross revenues from such Property. In
addition, if the assets of a Person consist solely of (i) Equity Interests in one other Single
Asset Entity and (ii) cash and other assets of nominal value incidental to such Person’s ownership
of the other Single Asset Entity, such Person shall also be deemed to be a “Single Asset Entity”.



“Solvent” means, when used with respect to any Person, that at the time of
determination:




(a) the fair value of its assets (both at fair valuation and at present fair saleable
value on an orderly basis) is in excess of the total amount of its liabilities, including
contingent obligations; and




(b) it is then able and expects to be able to pay its debts as they mature; and




(c) it has capital sufficient to carry on its business as conducted and as proposed to
be conducted.



“Stable or Stabilized”, when used to describe a Property, means a Property (i) that
has achieved an Occupancy Rate of at least 80% or (ii) for which all improvements (other than
tenant improvements) have been completed for a period of twelve (12) months.



“Subsidiary” of a Person means a corporation, partnership, limited liability company
or other business entity of which a majority of the shares of securities or other interests having
ordinary voting power for the election of directors or other governing body (other than securities
or interests having such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled, directly or indirectly,
through one or more intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of CSI.



“Subsidiary Guarantors” means each of the Material Subsidiaries of Borrower at the
Effective Date and each other Subsidiary that becomes a party to the Guaranty (including by
execution of a Guaranty Joinder Agreement).



“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms
and conditions of, or governed by, any form of master agreement published by the International
Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or
any other master agreement (any such master agreement, together with any related schedules, a
“Master Agreement”), including any such obligations or liabilities under any Master
Agreement.


 


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“Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).



“Swing Line” means the revolving credit facility made available by Swing Line Lender
pursuant to Section 2.04.



“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.




“Swing Line Loan” has the meaning specified in Section 2.04(a).



“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.



“Swing Line Sublimit” means an amount equal to, on any day within the Availability
Period, the lesser of (a) $25,000,000, (b) the Available Amount and (c) the amount of the Aggregate
Commitments available to be borrowed on such day. The Swing Line Sublimit is part of, and not in
addition to, the Aggregate Commitments.



“Synthetic DSCR Principal Amount” means the sum of (i) the principal amount of a
hypothetical loan that would result in a Synthetic Portfolio Debt Service Coverage Ratio equal to
1.30 to 1.00 (increasing to 1.50 to 1.00 on March 1, 2013) plus (ii) 50% of the GAAP book value of
each Development Property that is at least 50% pre-leased (provided, however that any such
Development Property shall only be included under this clause (ii) until the earlier of (A)
the one year anniversary date of project completion or (B) the first full fiscal quarter after such
Property becomes Stabilized); provided, however, notwithstanding the actual GAAP book value
of the Development Properties in the Borrowing Base, in no event shall Development Properties
constitute more than 20% of the Synthetic DSCR Principal Amount. The “Synthetic Portfolio Debt
Service Coverage Ratio” means the ratio of (a) aggregate Net Operating Income attributable to the
Borrowing Base Properties (excluding Net Operating Income, if any, from Development Properties)
minus Capital Reserves allocable to such properties for the fiscal quarter most recently ended
times 4, to (b) annualized aggregate debt service on hypothetical, 30-year loan amortizing on a
monthly, level-debt-service basis and bearing interest (computed on a 365-
6/360 basis) at a per annum rate equal to the greater of (i) 7.00% and (ii) the sum of (x) the
then current yield on United States Treasury securities having a 10 year maturity plus (y) 250
basis points.


 


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“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



“Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



“Total Collateral Value” means (i) an aggregate amount equal to 70% of the aggregate
“as-is” Appraised Value of each Borrowing Base Property that is Stabilized (reducing to 65% on
March 1, 2013), as determined by FIRREA-compliant MAI appraisals commissioned, reviewed and
approved by the Agent plus (ii) with respect to each Borrowing Base Property that is a Development
Property and is at least 50% pre-leased, 50% of the GAAP book value of such Development Property
minus the Remaining Development Amount, if any, required to complete such Development Property
(provided, however that any such Development Property shall only be included under this clause
(ii) until the earlier of (A) the one year anniversary date of project completion or (B) the
fiscal quarter after such Property becomes Stabilized); provided, however,
notwithstanding the actual GAAP book value of the Development Properties in the Borrowing Base, in
no event shall Development Properties constitute more than 20% of Total Collateral Value and no
Development Property shall be included in the Borrowing Base if it is not reasonably anticipated to
be completed prior to the Maturity Date.



“Total Leverage Ratio” means, as of any date of determination, the ratio of
Consolidated Total Indebtedness as of such date to Consolidated Total Asset Value as of such date.



“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



“Type” means, with respect to a Committed Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.



“Unconsolidated Affiliate” means, with respect to CSI or any Subsidiary thereof, any
other Person in whom CSI or any such Subsidiary holds an Investment, which Investment is accounted
for in the financial statements of CSI and its Subsidiaries on an equity basis of accounting and
whose financial results would not be consolidated under GAAP with the financial results of CSI on
its consolidated financial statements.



“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.


 


34









 





“Unimproved Land” means land on which no development (other than improvements that are
not material and are temporary in nature) has occurred and for which no development is scheduled in
the following 12 months.




“United States” and “U.S.” mean the United States of America.




“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).




“Unused Fee” has the meaning specified in Section 2.09(a).



1.03 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



(a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without limitation”. The word
“will” shall be construed to have the same meaning and effect as the word “shall”.
Unless the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be construed as referring
to such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “herein”,
“hereof” and “hereunder”, and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time, and (vi) the words
“asset” and “property” shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.



(b) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including”; the words “to” and “until”
each mean “to but excluding”; and the word “through” means “to and
including”.



(c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.


 


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1.04 Accounting Terms. (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in preparing the
Audited Financial Statements, except as otherwise specifically prescribed herein.



(b) Changes in GAAP. 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 Borrower or the
Required Lenders shall so request, Agent, Lenders and 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) Borrower shall provide to Agent and 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.



(c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of CSI and its Subsidiaries or to the determination of any amount
for CSI and its Subsidiaries on a consolidated basis or any similar reference shall, in each case,
be deemed to include each variable interest entity that CSI is required to consolidate pursuant to
FASB Interpretation No. 46 — Consolidation of Variable Interest Entities: an interpretation of ARB
No. 51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein.



(d) Valuation of Indebtedness. For purposes of calculating the Total Leverage Ratio,
all Consolidated Total Indebtedness shall be determined as the outstanding principal amount
thereof.



1.05 Rounding. Any financial ratios required to be maintained by Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



1.06 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).



1.07 Letter of Credit Amounts. Unless otherwise specified herein the amount of a Letter of
Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at
such time; provided, however, that with respect to any Letter of Credit that, by
its terms or the terms of any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such time.


 


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ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Committed Loan”) to Borrower from
time to time, on any Business Day during the Availability Period, in an aggregate amount not
to exceed at any time outstanding the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Committed Borrowing, (i) the Total Outstandings
shall not exceed the Available Amount, and (ii) the aggregate Outstanding Amount of the Committed
Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Commitment. Within the limits of each Lender’s
Commitment, and subject to the other terms and conditions hereof, Borrower may borrow under this
Section 2.01, prepay under Section 2.05, and reborrow under this Section
2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided
herein.



2.02 Borrowings, Conversions and Continuations of Committed Loans. (a) Each Committed
Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon Borrower’s irrevocable notice to Agent, which may be given
by telephone. Each such notice must be received by Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Committed Loans,
and (ii) on the requested date of any Borrowing of Base Rate Committed Loans. Each telephonic
notice by Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery
to Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof.
Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion
to Base Rate Committed Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall
specify (i) whether Borrower is requesting a Committed Borrowing, a conversion of Committed Loans
from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of
the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type
of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v)
if applicable, the duration of the Interest Period with respect thereto. If Borrower fails to
specify a Type of Committed Loan in a Committed Loan Notice or if Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable Committed Loans shall be made
as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans. If Borrower requests a Borrowing of, conversion to, or continuation of
Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period,
it will be deemed to have specified an Interest Period of one month.



(b) Following receipt of a Committed Loan Notice, Agent shall promptly notify each Lender of
the amount of its Applicable Percentage of the applicable Committed Loans, and if no timely notice
of a conversion or continuation is provided by Borrower, Agent shall notify each Lender of the
details of any automatic conversion to Base Rate Loans described in the preceding subsection. In
the case of a Committed Borrowing, each Lender shall make the amount of its Committed Loan
available to Agent in immediately available funds at Agent’s Office not later than 1:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if such
Borrowing is the initial Credit Extension, Section 4.01), Agent shall make all funds so
received available to Borrower in like funds as received by Agent either by (i) crediting the
account of Borrower on the books of Bank of America with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided to (and reasonably
acceptable to) Agent by Borrower; provided, however, that if, on the date the
Committed Loan Notice with respect to such Borrowing is given by Borrower, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing first, shall be applied, to the payment in
full of any such L/C Borrowings, and second, shall be made available to Borrower as
provided above.


 


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(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders.



(d) Agent shall promptly notify Borrower and Lenders of the interest rate applicable to any
Interest Period for Eurodollar Rate Loans upon determination of such interest rate.



(e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from
one Type to the other, and all continuations of Committed Loans as the same Type, there shall not
be more than ten Interest Periods in effect with respect to Eurodollar Rate Loans.




2.03 Letters of Credit.




(a) The Letter of Credit Commitment.




(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Effective Date until the L/C
Expiration Date, to issue Letters of Credit for the account of Borrower, and to amend
Letters of Credit previously issued by it, in accordance with subsection (b) below,
and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree
to participate in Letters of Credit issued for the account of Borrower and any drawings
thereunder; provided that after giving effect to any L/C Credit Extension with
respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Available
Amount, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Commitment, or (z) the Outstanding
Amount of the L/C Obligations shall not exceed the L/C Sublimit. Each request by Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to be a representation
by Borrower that the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to
the terms and conditions hereof, Borrower’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly Borrower may, during the foregoing period, obtain Letters
of Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed. All Existing Letters of Credit shall be deemed to have
been issued pursuant hereto, and from and after the Effective Date shall be subject to
and governed by the terms and conditions hereof.


 


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(ii) The L/C Issuer shall not issue any Letter of Credit, if:




(A) the expiry date of such requested Letter of Credit would occur more than
twelve months after the date of issuance, unless the Required Lenders have approved
such expiry date; or




(B) the expiry date of such requested Letter of Credit would occur after the
date that is more than twelve months after the L/C Expiration Date.




Prior to the L/C Expiration Date, the Borrower shall Cash Collateralize all Letters
of Credit having an expiry date after the L/C Expiration Date and failure to do so
within 10 days after the L/C Expiration Date shall constitute an Event of Default
under Section 9.01(a).




(iii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:




(A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon the L/C Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the L/C Issuer is
not otherwise compensated hereunder) not in effect on the Effective Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Effective Date and which the L/C Issuer in good faith deems
material to it;




(B) the issuance of such Letter of Credit would violate one or more policies of
the L/C Issuer;




(C) except as otherwise agreed by Agent and the L/C Issuer, such Letter of
Credit is in an initial stated amount less than $100,000, in the case of a
commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;




(D) such Letter of Credit is to be denominated in a currency other than
Dollars;




(E) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with Borrower or such Lender to
eliminate the L/C Issuer’s risk with respect to such Lender; or


 


39









 






(F) unless specifically provided for in this Agreement, such Letter of Credit
contains any provisions for automatic reinstatement of the stated amount after any
drawing thereunder.




(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.




(vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer shall have
all of the benefits and immunities (A) provided to Agent in Article X with respect
to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term “Administrative Agent” or “Agent” as used in
Article X included the L/C Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to the L/C Issuer.




(b) Procedures for Issuance and Amendment of Letters of Credit.




(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of Borrower delivered to the L/C Issuer (with a copy to Agent) in the form of a L/C
Application, appropriately completed and signed by a Responsible Officer of Borrower. Such
L/C Application must be received by the L/C Issuer and Agent not later than 11:00 a.m. at
least four Business Days (or such later date and time as Agent and the L/C Issuer may agree
in a particular instance in their sole discretion) prior to the proposed issuance date or
date of amendment, as the case may be. In the case of a request for an initial issuance of
a Letter of Credit, such L/C Application shall specify in form and detail satisfactory to
the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and (G) such other matters
as the L/C Issuer may require. In the case of a request for an amendment of any outstanding
Letter of Credit, such L/C Application shall specify in form and detail satisfactory to the
L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D)
such other matters as the L/C Issuer may require. Additionally, Borrower shall furnish to
the L/C Issuer and Agent such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or
Agent may require.


 


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(ii) Promptly after receipt of any L/C Application at the address set forth on
Schedule 11.02 for receiving L/C Applications and related correspondence, the L/C
Issuer will confirm with Agent (by telephone or in writing) that Agent has received a copy
of such L/C Application from Borrower and, if not, the L/C Issuer will provide Agent with a
copy thereof. Unless the L/C Issuer has received written notice from any Lender, Agent or
any Loan Party, at least one Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable conditions in
Article IV shall not then be satisfied, then, subject to the terms and conditions
hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of Borrower or enter into the applicable amendment, as the case may be, in each case
in accordance with the L/C Issuer’s usual and customary business practices. Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation
in such Letter of Credit in an amount equal to the product of such Lender’s Applicable
Percentage times the amount of such Letter of Credit.




(iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to Borrower and Agent a true and complete copy of such Letter of
Credit or amendment.




(c) Drawings and Reimbursements; Funding of Participations.




(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify Borrower and Agent thereof.
Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an “Honor Date”), Borrower shall reimburse the L/C Issuer
through Agent in an amount equal to the amount of such drawing. If Borrower fails to so
reimburse the L/C Issuer by such time, Agent shall promptly notify each Lender of the Honor
Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the
amount of such Lender’s Applicable Percentage thereof. In such event, Borrower shall be
deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the
Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but
subject to the amount of the unutilized portion of the Available Amount and the conditions
set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any
notice given by the L/C Issuer or Agent pursuant to this Section 2.03(c)(i) may be
given by telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding effect of such
notice.




(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to Agent for the account of the L/C Issuer at the Administrative Agent’s
Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later
than 1:00 p.m. on the Business Day specified in such notice by Agent, whereupon, subject to
the provisions of Section 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to Borrower in such
amount. Agent shall remit the funds so received to the L/C Issuer.


 


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(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed Borrowing of Base Rate Loans because the conditions set forth in Section
4.02 cannot be satisfied or for any other reason, Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that
is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment
to Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall constitute an
L/C Advance from such Lender in satisfaction of its participation obligation under this
Section 2.03.




(iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be
solely for the account of the L/C Issuer.




(v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Committed Loans
pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by Borrower of a Committed Loan Notice). No such
making of an L/C Advance shall relieve or otherwise impair the obligation of Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.




(vi) If any Lender fails to make available to Agent for the account of the L/C Issuer
any amount required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.03(c) by the time specified in Section 2.03(c)(ii), the L/C Issuer
shall be entitled to recover from such Lender (acting through Agent), on demand, such amount
with interest thereon for the period from the date such payment is required to the date on
which such payment is immediately available to the L/C Issuer at a rate per annum equal to
the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance
with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the LC/ Issuer in connection with the
foregoing. A certificate of the L/C Issuer submitted to any Lender (through Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive absent manifest
error.


 


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(d) Repayment of Participations.




(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if Agent receives for the account of the L/C Issuer
any payment in respect of the related Unreimbursed Amount or interest thereon (whether
directly from Borrower or otherwise, including proceeds of Cash Collateral applied thereto
by Agent), Agent will distribute to such Lender its Applicable Percentage thereof
(appropriately adjusted, in the case of interest payments, to reflect the period of time
during which such Lender’s L/C Advance was outstanding) in the same funds as those received
by Agent.




(ii) If any payment received by Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(i) is required to be returned under any of the circumstances
described in Section 11.05 (including pursuant to any settlement entered into by the
L/C Issuer in its discretion), each Lender shall pay to Agent for the account of the L/C
Issuer its Applicable Percentage thereof on demand of Agent, plus interest thereon from the
date of such demand to the date such amount is returned by such Lender, at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The obligations of Lenders
under this clause shall survive the payment in full of the Obligations and the termination
of this Agreement.



(e) Obligations Absolute. The obligation of Borrower to reimburse the L/C Issuer for
each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:




(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




(ii) the existence of any claim, counterclaim, setoff, defense or other right that
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




(iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




(iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any arising in
connection with any proceeding under any Debtor Relief Law; or


 


43









 






(v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, Borrower or any Subsidiary, other than actual repayment.



Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with Borrower’s
instructions or other irregularity, Borrower will immediately notify the L/C Issuer. Borrower
shall be conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.



(f) Role of L/C Issuer. Each Lender and Borrower agree that, in paying any drawing
under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by the Letter of Credit)
or to ascertain or inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer, Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable to any Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Letter of
Credit or Issuer Document. Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the L/C Issuer, Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of the L/C Issuer, shall be liable or responsible
for any of the matters described in clauses (i) through (v) of Section
2.03(e); provided, however, that anything in such clauses to the contrary
notwithstanding, Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable
to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by Borrower which Borrower proves were caused by the L/C Issuer’s
willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter
of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice or information to
the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.



(g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer
and Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each
standby Letter of Credit (including any such agreement applicable to an Existing Letter of
Credit), and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as
most recently published by the International Chamber of Commerce at the time of issuance shall
apply to each commercial Letter of Credit.


 


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(h) L/C Fees. Borrower shall pay to Agent for the account of each Lender in
accordance with its Applicable Percentage a Letter of Credit fee (the “L/C Fee”) for each
Letter of Credit equal to the Applicable Rate times the daily amount available to be drawn under
such Letter of Credit. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.06. L/C Fees shall be (i) computed on a quarterly basis in arrears and (ii) due
and payable on the first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter of Credit, on the
L/C Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during
any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed
and multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all L/C Fees shall accrue at
the Default Rate.



(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee (i) with respect
to each commercial Letter of Credit, at the rate specified in the Fee Letter, computed on the
amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any
amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a
rate separately agreed between Borrower and the L/C Issuer, computed on the amount of such
increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each
standby Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the daily
amount available to be drawn under such Letter of Credit and on a quarterly basis in arrears;
provided, however, that, notwithstanding the foregoing, such fronting fee shall be
not less than $500 per annum. Such fronting fee shall be due and payable on the tenth Business Day
after the end of each March, June, September and December, in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment), commencing with the first
such date to occur after the issuance of such Letter of Credit, on the L/C Expiration Date and
thereafter on demand. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.07. In addition, Borrower shall pay directly to the L/C Issuer for its own
account the customary issuance, presentation, amendment and other processing fees, and other
standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in
effect. Such individual customary fees and standard costs and charges are due and payable on
demand and are nonrefundable.



(j) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.


 


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2.04 Swing Line Loans.



(a) The Swing Line. Subject to the terms and conditions set forth herein, Swing Line
Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section
2.04, to make loans (each such loan, a “Swing Line Loan”) to Borrower from time to time
on any Business Day during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line
Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans
and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such
Lender’s Commitment; provided, however, that after giving effect to any Swing Line
Loan, (i) the Total Outstandings shall not exceed the Available Amount, and (ii) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Commitment, and provided, further, that the Borrower shall not use the proceeds of
any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, Borrower may borrow under this Section
2.04, prepay under Section 2.05 and reborrow under this Section 2.04. Each
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of
such Lender’s Applicable Percentage times the amount of such Swing Line Loan.



(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon Borrower’s
irrevocable notice to Swing Line Lender and Agent, which may be given by telephone. Each such
notice must be received by Swing Line Lender and Agent not later than 11:00 a.m. on the requested
borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of
$100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such
telephonic notice must be confirmed promptly by delivery to Swing Line Lender and Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of
Borrower. Promptly after receipt by Swing Line Lender of any telephonic Swing Line Loan Notice,
Swing Line Lender will confirm with Agent (by telephone or in writing) that Agent has also received
such Swing Line Loan Notice and, if not, Swing Line Lender will notify Agent (by telephone or in
writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from Agent (including at the request of any Lender) prior to 2:00 p.m. on the date
of the proposed Swing Line Borrowing (A) directing Swing Line Lender not to make such Swing Line
Loan as a result of the limitations set forth in the proviso to the first sentence of Section
2.04(a), or (B) that one or more of the applicable conditions specified in Article IV
is not then satisfied, then, subject to the terms and conditions hereof, Swing Line Lender will,
not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to Borrower at its office by crediting the account of
Borrower on the books of Swing Line Lender in immediately available funds. Lenders agree that
Swing Line Lender may agree to modify the borrowing procedures used in connection with the Swing
Line in its discretion and without affecting any of the obligations of Lenders hereunder other than
notifying Agent of a Swing Line Loan Notice.


 


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(c) Refinancing of Swing Line Loans.




(i) Swing Line Lender at any time in its sole and absolute discretion may request, on
behalf of Borrower (which hereby irrevocably authorizes Swing Line Lender to so request on
its behalf), that each Lender make a Base Rate Committed Loan in an amount equal to such
Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a Committed
Loan Notice for purposes hereof) and in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the Available Amount and
the conditions set forth in Section 4.02. Swing Line Lender shall furnish Borrower
with a copy of the applicable Committed Loan Notice promptly after delivering such notice to
Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount
specified in such Committed Loan Notice available to Agent in immediately available funds
for the account of Swing Line Lender at the Administrative Agent’s Office not later than
1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to
Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Committed Loan to Borrower in such amount. Agent shall remit the
funds so received to Swing Line Lender.




(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Committed
Loans submitted by Swing Line Lender as set forth herein shall be deemed to be a request by
Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing
Line Loan and each Lender’s payment to Agent for the account of Swing Line Lender pursuant
to Section 2.04(c)(i) shall be deemed payment in respect of such participation.




(iii) If any Lender fails to make available to Agent for the account of Swing Line
Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of
this Section 2.04(c) by the time specified in Section 2.04(c)(i), Swing Line
Lender shall be entitled to recover from such Lender (acting through Agent), on demand, such
amount with interest thereon for the period from the date such payment is required to the
date on which such payment is immediately available to Swing Line Lender at a rate per annum
equal to the greater of the Federal Funds Rate and a rate determined by Swing Line Lender in
accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by the Swing Line Lender in
connection with the foregoing. If such Lender pays such amount (with interest and fees as
foresaid), the amount so paid shall constitute such Lender’s Committed Loan included in the
relevant Committed Borrowing or funded participation in the relevant Swing Line Loan, as the
case may be. A certificate of the Swing Line Lender submitted to any Lender (through Agent)
with respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.


 


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(iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such Lender may have
against Swing Line Lender, Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of Borrower to repay Swing
Line Loans, together with interest as provided herein.




(d) Repayment of Participations.




(i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if Swing Line Lender receives any payment on account of such Swing Line
Loan, Swing Line Lender will distribute to such Lender its Applicable Percentage of such
payment (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Lender’s risk participation was funded) in the same funds as those
received by Swing Line Lender.




(ii) If any payment received by Swing Line Lender in respect of principal or interest
on any Swing Line Loan is required to be returned by Swing Line Lender under any of the
circumstances described in Section 11.05 (including pursuant to any settlement
entered into by Swing Line Lender in its discretion), each Lender shall pay to Swing Line
Lender its Applicable Percentage thereof on demand of Agent, plus interest thereon from the
date of such demand to the date such amount is returned, at a rate per annum equal to the
Federal Funds Rate. Agent will make such demand upon the request of Swing Line Lender. The
obligations of Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.



(e) Interest for Account of Swing Line Lender. Swing Line Lender shall be responsible
for invoicing Borrower for interest on the Swing Line Loans. Until each Lender funds its Base Rate
Committed Loan or risk participation pursuant to this Section 2.04 to refinance such
Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable
Percentage shall be solely for the account of Swing Line Lender.



(f) Payments Directly to Swing Line Lender. Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to Swing Line Lender.


 


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2.05 Prepayments. (a) Borrower may, upon notice to Agent, at any time or from time to time
voluntarily prepay Committed Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by Agent not later than 11:00 a.m. (A) three Business Days
prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base
Rate Committed Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount
of $1,000,000 or a whole multiple of $100,000 in excess thereof; and (iii) any prepayment of Base
Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Committed Loans to be prepaid and, if Eurodollar Rate Loans are
to be repaid, the Interest Period(s) of such Loans. Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such
prepayment. If such notice is given by Borrower, Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount
prepaid, together with any additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Committed Loans of Lenders in accordance with their respective
Applicable Percentages.



(b) Borrower may, upon notice to Swing Line Lender (with a copy to Agent), at any time or from
time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by Swing Line Lender and Agent not later
than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum
principal amount of $100,000. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by Borrower, Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified therein.



(c) If for any reason the Total Outstandings at any time exceed the Available Amount then in
effect, Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess; provided, however, that Borrower shall not
be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c)
unless after the prepayment in full of the Loans the Total Outstandings exceed the Available Amount
then in effect.



2.06 Termination or Reduction of Commitments. Borrower may, upon notice to Agent, terminate
the Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments;
provided that (i) any such notice shall be received by Agent not later than 11:00 a.m. five
Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall
be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof,
(iii) Borrower shall not terminate or reduce the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the
Available Amount, and (iv) if, after giving effect to any reduction of the Aggregate Commitments,
the L/C Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such
Sublimit shall be automatically reduced by the amount of such excess. Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Aggregate Commitments. Any
reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according
to its Applicable Percentage. All fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.



2.07 Repayment of Loans. (a) Borrower shall repay to Lenders on the Maturity Date the
aggregate principal amount of Committed Loans outstanding on such date.


 


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(b) Borrower shall repay to Swing Line Lender each Swing Line Loan on the earlier to occur of
(i) the date which is five Business Days after such Loan is made and (ii) the Maturity Date.



2.08 Interest. (a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period
plus the Applicable Rate; (ii) each Base Rate Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal
to the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall bear
interest on the outstanding principal amount thereof from the applicable borrowing date at a rate
per annum equal to the Base Rate plus the Applicable Rate.




(i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.




(ii) If any amount (other than principal of any Loan) payable by Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest
at a fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws, unless waived by the Required Lenders.




(iii) Upon the request of the Required Lenders, while any Event of Default exists,
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder
at a fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.




(iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



(b) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.


 


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2.09 Fees. In addition to certain fees described in subsections (i) and (j)
of Section 2.03:



(a) Unused Fee. Borrower shall pay to Agent for the account of each Lender in
accordance with its Applicable Percentage an unused fee (the “Unused Fee”) equal to (i) on
each day that the Total Outstandings are less than 50% of the amount of the Aggregate Commitments
then in effect (or, if terminated, in effect immediately prior to such termination), 0.500%
times the actual daily amount by which the Aggregate Commitments exceed the Total
Outstandings
and (ii) on each day that the Total Outstandings equal or exceed 50% of the amount of the
Aggregate Commitments then in effect (or, if terminated, in effect immediately prior to such
termination), 0.400% times the actual daily amount by which the Aggregate Commitments
exceed the Total Outstandings, subject to adjustments as provided in Section 2.17. The
Unused Fee shall be due and payable quarterly in arrears on the last Business Day of each March,
June, September and December, commencing with the first such date to occur after the Effective
Date, and on the Maturity Date (and, if applicable, thereafter on demand). The Unused Fee shall be
calculated quarterly in arrears. The Unused Fee shall accrue at all times following the Effective
Date, including at any time during which one or more of the conditions in Article IV is not
met. For purposes of calculating Total Outstandings under this Section 2.09(a), the Total
Outstandings shall not include the Outstanding Amount of all Swing Line Loans.



(b) Other Fees. Borrower shall pay (i) each Arranger and Agent for their own
respective accounts and (ii) to Agent, for the account of each Lender in accordance with their
respective Applicable Percentages, fees in the amounts and at the times specified in the Fee
Letter. All such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.



2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All
computations of interest for Base Rate Loans when the Base Rate is determined by Bank of America’s
“prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made on the basis of a
360-day year and actual days elapsed (which results in more fees or interest, as applicable, being
paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day
on which the Loan or such portion is paid, provided that any Loan that is repaid on the
same day on which it is made shall, subject to Section 2.12(a), bear interest for one day.
Each determination by Agent of an interest rate or fee hereunder shall be conclusive and binding
for all purposes, absent manifest error.



(b) If, as a result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the Total
Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a
proper calculation of the Total Leverage Ratio would have resulted in higher pricing for such
period, the Borrower shall immediately and retroactively be obligated to pay to the Agent for the
account of the applicable Lenders, promptly on demand by the Agent (or, after the occurrence of an
actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy
Code of the United States, automatically and without further action by the Agent, any Lender or the
L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been
paid for such period over the amount of interest and fees actually paid for such period. This
paragraph shall not limit the rights of the Agent, any Lender or the L/C Issuer, as the case may
be, under Section 2.03(c)(iii), 2.03(i) or 2.08(a) or under Article
XI. The Borrower’s obligations under this paragraph shall survive the termination of the
Aggregate Commitments and the repayment of all other Obligations hereunder.


 


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2.11 Evidence of Debt. (a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by Agent in the
ordinary course of business. The accounts or records maintained by Agent and each Lender
shall be conclusive absent manifest error of the amount of the Credit Extensions made by Lenders to
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of Agent in respect of such
matters, the accounts and records of Agent shall control in the absence of manifest error. Upon
the request of any Lender made through Agent, Borrower shall execute and deliver to such Lender
(through Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.



(b) In addition to the accounts and records referred to in subsection (a), each Lender
and Agent shall maintain in accordance with its usual practice accounts or records evidencing the
purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In
the event of any conflict between the accounts and records maintained by Agent and the accounts and
records of any Lender in respect of such matters, the accounts and records of Agent shall control
in the absence of manifest error.




2.12 Payments Generally; Agent’s Clawback.



(a) General. All payments to be made by Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by Borrower hereunder shall be made to Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars
and in immediately available funds not later than 2:00 p.m. on the date specified herein. Agent
will promptly distribute to each Lender its Applicable Percentage (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to such Lender’s
Lending Office. All payments received by Agent after 2:00 p.m. shall be deemed received on the
next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any
payment to be made by Borrower shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.



(b) (i) Funding by Lenders; Presumption by Agent. Unless Agent shall have received
notice from a Lender prior to the proposed date of any Committed Borrowing of Eurodollar Rate Loans
(or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the date of
such Committed Borrowing) that such Lender will not make available to Agent such Lender’s share of
such Committed Borrowing, Agent may assume that such Lender has made such share available on such
date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate
Loans, that such Lender has made such share available in accordance with and at the time required
by Section 2.02) and may, in reliance upon such assumption, make available to Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Committed Borrowing available to Agent, then the applicable Lender and Borrower severally agree to
pay to Agent forthwith on demand such corresponding amount in immediately available funds with
interest thereon, for each day from and including the date such amount is made available to
Borrower to but excluding the date
of payment to Agent, at (A) in the case of a payment to be made by such Lender, the greater of
the Federal Funds Rate and a rate determined by Agent in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees customarily
charged by Agent in connection with the foregoing and (B) in the case of a payment to be made by
Borrower, the interest rate applicable to Base Rate Loans. If Borrower and such Lender shall pay
such interest to Agent for the same or an overlapping period, Agent shall promptly remit to
Borrower the amount of such interest paid by Borrower for such period. If such Lender pays its
share of the applicable Committed Borrowing to Agent, then the amount so paid shall constitute such
Lender’s Committed Loan included in such Committed Borrowing. Any payment by Borrower shall be
without prejudice to any claim Borrower may have against a Lender that shall have failed to make
such payment to Agent.


 


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(ii) Payments by Borrower; Presumptions by Agent. Unless Agent shall have
received notice from Borrower prior to the date on which any payment is due to Agent for the
account of the Lenders or the L/C Issuer hereunder that Borrower will not make such payment,
Agent may assume that Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if Borrower has not in fact made such payment, then
each of Lenders or the L/C Issuer, as the case may be, severally agrees to repay to Agent
forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in
immediately available funds with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to Agent, at the
greater of the Federal Funds Rate and a rate determined by Agent in accordance with banking
industry rules on interbank compensation.



A notice of Agent to any Lender or Borrower with respect to any amount owing under this
subsection (b) shall be conclusive, absent manifest error.



(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to Agent
funds for any Loan to be made by such Lender as provided in the foregoing provisions of this
Article II, and such funds are not made available to Borrower by Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not satisfied or
waived in accordance with the terms hereof, Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.



(d) Obligations of Lenders Several. The obligations of Lenders hereunder to make
Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender
to make any Committed Loan, to fund any such participation or to make any payment under Section
11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Committed Loan, purchase its participation or to make its payment under
Section 11.04(c).



(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.


 


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2.13 Sharing of Payments. If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the
Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by
it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such
Committed Loans or participations and accrued interest thereon greater than its pro
rata share thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify Agent of such fact, and (b) purchase (for cash at face value) participations in
the Committed Loans and subparticipations in L/C Obligations and Swing Line Loans of the other
Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Committed Loans and other amounts owing them,
provided that:




(i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




(ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by Borrower pursuant to and in accordance with the express terms of this Agreement or
(y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than to Borrower or any Subsidiary thereof
(as to which the provisions of this Section shall apply).



Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against such Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of
such participation.




2.14 Increase in Commitments.



(a) Request for Increase. Provided there exists no Default, upon notice to Agent
(which shall promptly notify the Lenders), Borrower may from time to time request an increase in
the Aggregate Commitments by an amount (for all such requests) not exceeding $150,000,000 in the
aggregate; provided that any such request for an increase shall be in a minimum amount of
$10,000,000. At the time of sending such notice, Borrower (in consultation with Agent) shall
specify the time period within which each Lender is requested to respond (which shall in no event
be less than ten Business Days from the date of delivery of such notice to the Lenders).



(b) Lender Elections to Increase. Each Lender shall notify the Agent within such time
period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal
to, greater than, or less than its Applicable Percentage of such requested increase. Any
Lender not responding within such time period shall be deemed to have declined to increase its
Commitment.


 


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(c) Notification by Agent; Additional Lenders. The Agent shall notify Borrower and
each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount
of a requested increase and subject to the approval of Agent, the L/C Issuer and the Swing Line
Lender (each of which approvals shall not be unreasonably withheld), Borrower may also invite
additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to Agent and its counsel.



(d) Effective Date and Allocations. If the Aggregate Commitments are increased in
accordance with this Section, Agent and Borrower shall determine the effective date (the
“Increase Effective Date”) and the final allocation of such increase. Agent shall promptly
notify Borrower and the Lenders of the final allocation of such increase and the Increase Effective
Date.



(e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, Borrower shall deliver to Agent at Borrower’s expense, (I) updated appraisals meeting the
Appraisal Requirements for each Borrowing Base Property as may be requested by the Agent, (II)
documents required under Section 5A.04(e), including Mortgage modifications and (III) a
certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for
each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) in the
case of Borrower, certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article VI and the other Loan Documents are
true and correct on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this Section 2.14, the
representations and warranties contained in subsections (a) and (b) of Section
6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 7.01, and (B) no Default exists.
Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent necessary to keep the
outstanding Committed Loans ratable with any revised Applicable Percentages arising from any
nonratable increase in the Commitments under this Section.



(f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.13 or 11.01 to the contrary.




2.15 Extension of Maturity Date.



(a) Requests for Extension. Borrower may, by notice to Agent (who shall promptly
notify the Lenders), extend the Maturity Date for a year from the Maturity Date not earlier than
the date that is 90 days prior to Maturity Date and not later than the date that is 30 days prior
to Maturity Date.


 


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(b) Minimum Extension Requirement. If Borrower has made a request pursuant to
Section 2.15(a) to extend the Maturity Date, then, effective as of the Maturity Date, the
Maturity Date of each Lender shall be extended to the date falling one year after the Maturity Date
(except that, if such date is not a Business Day, such Maturity Date as so extended shall be the
next preceding Business Day).



(c) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, each
extension of the Maturity Date pursuant to this Section shall not be effective with respect to any
Lender unless:




(i) no Default or Event of Default shall have occurred and be continuing on the date of
such extension and after giving effect thereto;




(ii) the representations and warranties contained in this Agreement are true and
correct in all material respects on and as of the date of such extension and after giving
effect thereto, as though made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of such specific
date), provided that the representations and warranties contained in subsections
(a) and (b) of Section 6.05 shall be deemed to refer to the most recent
financial statements furnished pursuant to clauses (a) and (b),
respectively, of Section 7.01 and the representation and warranty contained in
Section 6.05 shall be deemed to refer to the most recent financial statements
furnished pursuant to clause (a) or clause (b) of Section 7.01;




(iii) Borrower shall have delivered to Agent a certificate certifying and attaching the
resolutions adopted by Borrower approving or consenting to such extension (which such
resolutions may be certified in, and attached to, the certificate certifying to resolutions
of Borrower delivered on or prior to the Effective Date pursuant to Section
4.01(a)(iii));




(iv) Borrower shall have delivered to Agent, at Borrower’s expense, appraisals meeting
the Appraisal Requirements for each Borrowing Base Property in order for the Agent to
confirm a Total Collateral Value of not less than $100,000,000; and




(v) Borrower shall have paid to Agent for the account of each Lender in accordance with
its Applicable Percentage a fee equal to 0.350% times the Aggregate Commitments then
in effect.



(d) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 11.01 to the contrary.


 


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2.16 Cash Collateral.



(a) Certain Credit Support Events. If the L/C Issuer has honored any full or
partial drawing request under any Letter of Credit and such drawing has resulted in an L/C
Borrowing that remains unpaid, then, the L/C Issuer may, and at the request of the Required Lenders
shall, demand that the Borrower immediately Cash Collateralize all or a portion of the then
Outstanding Amount of all L/C Obligations, such amount to be determined by Required Lenders
in their discretion, or the L/C Issuer, in its sole discretion, as the case may be. In
addition, if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, upon the request of the Agent or the L/C Issuer, the Borrower shall immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. At any time that there shall
exist a Defaulting Lender, promptly upon the written request of the Agent, the L/C Issuer or the
Swing Line Lender, the Borrower shall deliver to Agent Cash Collateral in an amount sufficient to
cover all Fronting Exposure (after giving effect to Section 2.17(a)(iv) and any Cash
Collateral provided by the Defaulting Lender) in the case of clause (ii) above.



(b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America. The Borrower, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Agent, for the benefit of the Agent, the L/C
Issuer and the Lenders (including the Swing Line Lender), and agrees to maintain, a first priority
security interest in all such cash, deposit accounts and all balances therein, and all other
property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as
security for the obligations to which such Cash Collateral may be applied pursuant to Section
2.16(c). If at any time the Agent determines that Cash Collateral is subject to any right or
claim of any Person other than the Agent as herein provided, or that the total amount of such Cash
Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the
Borrower or the relevant Defaulting Lender will, promptly upon demand by the Agent, pay or provide
to the Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after
giving effect to any Cash Collateral previously provided).



(c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.16 or Sections
2.03, 2.04, 2.05, 2.17 or 9.02 in respect of Letters of Credit
or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations,
Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for
which the Cash Collateral was so provided, prior to any other application of such property as may
be provided for herein.



(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with Section 11.06(b))) or (ii) the Agent’s good faith determination
that there exists excess Cash Collateral; provided, however, (x) that Cash Collateral
furnished by or on behalf of a Loan Party shall not be released during the continuance of a Default
or Event of Default (and following application as provided in this Section 2.16 may be
otherwise applied in accordance with Section 9.03), and (y) the Person providing Cash
Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral
shall not be released but instead held to support future anticipated Fronting Exposure or other
obligations.


 


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2.17 Defaulting Lenders.



(a) Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no
longer a Defaulting Lender, to the extent permitted by applicable Law:




(i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 11.01.




(ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Agent for the account of that Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Article IX or otherwise, and
including any amounts made available to the Agent by that Defaulting Lender pursuant to
Section 11.08), shall be applied at such time or times as may be determined by the
Agent as follows: first, to the payment of any amounts owing by that Defaulting
Lender to the Agent hereunder; second, to the payment on a pro rata basis of any
amounts owing by that Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder;
third, if so determined by the Agent or requested by the L/C Issuer or Swing Line
Lender, to be held as Cash Collateral for future funding obligations of that Defaulting
Lender of any participation in any Swing Line Loan or Letter of Credit; fourth, as
the Borrower may request (so long as no Default or Event of Default exists), to the funding
of any Loan in respect of which that Defaulting Lender has failed to fund its portion
thereof as required by this Agreement, as determined by the Agent; fifth, if so
determined by the Agent and the Borrower, to be held in a non-interest bearing deposit
account and released in order to (x) satisfy such Defaulting Lender’s potential future
funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize
the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with
respect to future Letters of Credit issued under this Agreement, in accordance with
Section 2.16; sixth, to the payment of any amounts owing to the Lenders, the
L/C Issuer or Swing Line Lender as a result of any judgment of a court of competent
jurisdiction obtained by any Lender, the L/C Issuer or Swing Line Lender against that
Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; seventh, so long as no Default or Event of Default exists, to the
payment of any amounts owing to the Borrower as a result of any judgment of a court of
competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result
of that Defaulting Lender’s breach of its obligations under this Agreement; and
eighth, to that Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (x) such payment is a payment of the principal amount
of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully
funded its appropriate share and (y) such Loans or L/C Borrowings were made at a time when
the conditions set forth in Section 4.02 were satisfied or waived, such payment
shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting
Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C
Borrowings owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid
or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(a)(ii)
shall be deemed paid to and redirected by that Defaulting Lender, and each Lender
irrevocably consents hereto.


 


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(iii) Certain Fees. That Defaulting Lender (x) shall be not be entitled to
receive any Unused Fee pursuant to Section 2.09(a) for any period during which that
Lender is a Defaulting Lender (and the Borrower shall (A) not be required to pay any such
fee that otherwise would have been required to have been paid to that Defaulting Lender and
(B) not be required to pay the remaining amount of such fee that otherwise would have been
required to have been paid to that Defaulting Lender) and (y) shall be limited in its right
to receive Letter of Credit Fees as provided in Section 2.03(h).




(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03
and 2.04, the “Applicable Percentage” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender;
provided, that, (i) each such reallocation shall be given effect only if, at the
date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default
exists; and (ii) the aggregate obligation of each non-Defaulting Lender to acquire,
refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed
the positive difference, if any, of (1) the Commitment of that non-Defaulting Lender
minus (2) the aggregate Outstanding Amount of the Committed Loans of that Lender.




(v) Replacement of Lenders. During any period in which there is a Defaulting
Lender, the Borrower may, pursuant to Section 11.13, require such Defaulting Lender
to assign and delegate all of its interest, rights and obligations under this Agreement and
the related Loan Documents to an assignee that shall assume such obligations.



(b) Defaulting Lender Cure. If the Borrower, the Agent, Swing Line Lender and the L/C
Issuer agree in writing in their sole discretion that a Defaulting Lender should no longer be
deemed to be a Defaulting Lender (or if a Defaulting Lender takes such action necessary so that it
would no longer be characterized as a Defaulting Lender), the Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any conditions
set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or
take such other actions as the Agent may determine to be necessary to cause the Committed Loans and
funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro
rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to
Section 2.17(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no
adjustments will be made retroactively with respect to fees accrued or payments made by or on
behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that
except to the extent otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lender’s having been a Defaulting Lender.


 


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ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY





3.01 Taxes.



(a) Payments Free of Taxes. Any and all payments by Borrower to or on account of any
obligation of Borrower hereunder or under any other Loan Document shall be made free and clear of
and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided
that if Borrower shall be required by any applicable law to deduct any Indemnified Taxes (including
any Other Taxes) from such payments, then, (i) 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), Agent, Lender or L/C Issuer, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii) Borrower shall make
such deductions, and (iii) Borrower shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.



(b) Payment of Other Taxes by Borrower. Without limiting the provisions of subsection
(a) above, Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.



(c) Indemnification by Borrower. Borrower shall indemnify Agent, each Lender and the
L/C Issuer, within 10 days after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) paid by Agent, such Lender or the L/C Issuer, as the case may
be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to Borrower by a Lender or the L/C Issuer (with a copy to Agent), or by Agent
on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest
error.



(d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by Borrower to a Governmental Authority, Borrower shall deliver to Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to Agent.



(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which Borrower is resident for
tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to Borrower (with a copy to Agent), at the
time or times prescribed by applicable law or reasonably requested by Borrower or Agent (but in no
event later than the date on which any amounts are payable under this Agreement), 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 of withholding. In addition, any Lender, if
requested by Borrower or Agent, shall deliver such other documentation prescribed by applicable law
or reasonably requested by Borrower or Agent as will enable
Borrower or Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.


 


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Without limiting the generality of the foregoing, in the event that Borrower is resident for
tax purposes in the United States, any Foreign Lender shall deliver to Borrower and Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the
request of Borrower or Agent, but only if such Foreign Lender is legally entitled to do so),
whichever of the following is applicable:




(i) two duly completed and properly executed copies of Internal Revenue Service Form
W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States
and the country of such Foreign Lender are parties,




(ii) two duly completed and properly executed copies of Internal Revenue Service Form
W-8ECI,




(iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of Borrower within the meaning of section 881(c)(3)(B)
of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of
the Code and (y) two duly completed and properly executed copies of Internal Revenue Service
Form W-8BEN, or




(iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed and properly executed
together with such supplementary documentation as may be prescribed by applicable law to
permit Borrower to determine the withholding or deduction required to be made.



(f) Treatment of Certain Refunds. If Agent, any Lender or the L/C Issuer determines,
in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it
has been indemnified by Borrower or with respect to which Borrower has paid additional amounts
pursuant to this Section, it shall pay to Borrower an amount equal to such refund (but only to the
extent of indemnity payments made, or additional amounts paid, by Borrower under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses
of Agent, such Lender or the L/C Issuer, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund), provided
that Borrower, upon the request of Agent, such Lender or the L/C Issuer, agrees to repay the amount
paid over to Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to Agent, such Lender or the L/C Issuer in the event Agent, such Lender or
the L/C Issuer is required to repay such refund to such Governmental Authority. This subsection
shall not be construed to require Agent, any Lender or the L/C Issuer to make available its tax
returns (or any other information relating to its taxes that it deems confidential) to Borrower or
any other Person.


 


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3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on
the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to Borrower through Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Committed Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies Agent and Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice,
Borrower shall, upon demand from such Lender (with a copy to Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate
Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, Borrower shall also pay accrued
interest on the amount so prepaid or converted and all amounts due under Section 3.05 in
accordance with the terms thereof due to such prepayment or conversion.



3.03 Inability to Determine Rates. If the Required Lenders determine in connection with any
request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the London interbank eurodollar market for the
applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurodollar Base Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Base Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, Agent will promptly so notify Borrower and
each Lender. Thereafter, the obligation of Lenders to make or maintain Eurodollar Rate Loans shall
be suspended until Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, Borrower may revoke any pending request for a Borrowing of, conversion to
or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Committed Borrowing of Base Rate Loans in the amount specified
therein.




3.04 Increased Costs.




(a) Increased Costs Generally. If any Change in Law shall:




(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate) or the L/C Issuer;




(ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any
change in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or


 


62









 






(iii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
the L/C Issuer, Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.



(b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on
the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C
Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with
respect to capital adequacy), then from time to time Borrower will pay to such Lender or the L/C
Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the
L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.



(c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to Borrower shall be conclusive absent manifest error. Borrower shall pay such Lender or
the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.



(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies
Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the nine-month
period referred to above shall be extended to include the period of retroactive effect thereof).


 


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3.05 Compensation for Losses. Upon demand of any Lender (with a copy to Agent) from time to
time, Borrower shall promptly compensate such Lender for and hold such Lender harmless from any
loss, cost or expense incurred by it as a result of:



(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise); or



(b) any failure by Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by Borrower; or



(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefore as a result of a request for the Borrower pursuant to Section 11.13;



including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. Borrower shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing. For purposes of calculating amounts
payable by Borrower to Lenders under this Section 3.05, each Lender shall be deemed to have
funded each Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.




3.06 Mitigation Obligations; Replacement Lenders.



(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable costs
and expenses incurred by any Lender in connection with any such designation or assignment.



(b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, Borrower may replace such
Lender in accordance with Section 11.13.


 


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3.07 Survival. All of Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




4.01 Conditions of Effective Date. This Agreement shall be effective subject to the
satisfaction of the following conditions precedent:



(a) Agent’s receipt of the following, each of which shall be originals or telecopies (followed
promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer
of the signing Loan Party, each dated the Effective Date or such other date as may be acceptable to
the Agent, and each in form and substance satisfactory to Agent and each of the Lenders:




(i) fully executed counterparts of this Agreement, the Mortgages, the Lease Party
Documents, the Guaranty and the other Loan Documents, together with all schedules and
exhibits thereto, sufficient in number for distribution to Agent, each Lender and Borrower;




(ii) a Note executed by Borrower in favor of each Lender requesting a Note;




(iii) resolutions of the boards of directors or other appropriate governing body (or of
the appropriate committee thereof) of each Loan Party certified by its secretary or
assistant secretary as of the Effective Date, approving and adopting the Loan Documents to
be executed by such Person, and authorizing the execution and delivery thereof;




(iv) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each of CSI, the Borrower, CS Business Trust
I, CS Business Trust II and each Subsidiary Guarantor as Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other Loan Documents to which
such Loan Party is a party;




(v) the Organization Documents of each of the Loan Parties certified as of a date not
more than 60 days prior to the Effective Date by the Secretary of State or comparable
official of its state of organization or by the secretary or assistant secretary of such
Loan Party, as applicable;




(vi) such documents and certifications as Agent may reasonably require to evidence that
each of CSI, the Borrower, CS Business Trust I, CS Business Trust II and each Subsidiary
Guarantor is duly organized or formed, and that each such Loan Party is validly existing, in
good standing and qualified to engage in business in each jurisdiction where its ownership,
lease or operation of properties or the conduct of its business requires such qualification,
except to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect;


 


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(vii) a favorable opinion of counsel to the Loan Parties addressed to Agent and each
Lender, as to the matters concerning CSI, the Borrower, CS Business Trust I, CS Business
Trust II and each Subsidiary Guarantor and the Loan Documents in form and substance
reasonably satisfactory to Agent;




(viii) the favorable written opinions with respect to the Mortgages and related UCC
financing statements for each of the Borrowing Base Properties of special local counsel to
the Loan Parties dated the Effective Date, addressed to the Agent and the Lenders, and
satisfactory to McGuireWoods LLP, counsel to the Agent, substantially in the form of
Exhibit K;




(ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the execution,
delivery and performance by such Loan Party and the validity against such Loan Party of the
Loan Documents to which it is a party, and such consents, licenses and approvals shall be in
full force and effect, or (B) stating that no such consents, licenses or approvals are so
required;




(x) a certificate signed by a Responsible Officer of Borrower certifying (A) that the
conditions specified in Sections 4.02(a) and (b) have been satisfied, and
(B) that there has been no event or circumstance since the date of the Audited Financial
Statements and there are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of CSI and Borrower after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or
against CSI or any of its Subsidiaries, that has had or could be reasonably expected to
have, either individually or in the aggregate, a Material Adverse Effect;




(xi) a duly completed pro forma Compliance Certificate as of December 31, 2010, signed
by a Responsible Officer of Borrower or CSI;




(xii) evidence that all insurance required to be maintained pursuant to the Loan
Documents has been obtained and is in effect;




(xiii) a Borrowing Notice, and if elected by the Borrower, an Interest Rate Selection
Notice;




(xiv) an Available Amount Certificate (“Available Amount Certificate”) and an
Eligible Property Compliance Certificate, each dated as of the Effective Date, in the form
of Exhibits D and H, respectively, together with all exhibits thereto




(xv) evidence of the filing of Uniform Commercial Code financing statements reflecting
the filing in all places required by applicable law to perfect the Liens of the Agent under
the Security Instruments as to items of Collateral in which a security interest may be
perfected by the filing of financing statements, and such other documents and/or evidence of
other actions, if any, as may be necessary under applicable law to perfect the Liens of the
Agent under the Security Instruments as a first priority Lien in and to such other
Collateral as the Agent may require in its reasonable discretion;


 


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(xvi) with respect to each Eligible Property identified as constituting a part of the
Borrowing Base on the Effective Date, delivery or satisfaction of each of the requirements
in Section 5A.04 applicable to such Eligible Property, as may be necessary to
include such Eligible Property in the Borrowing Base as set forth therein;




(xvii) Uniform Commercial Code search results showing only those Liens as are
reasonably acceptable to the Lenders; and




(xviii) such other assurances, certificates, documents, consents or opinions as Agent,
the L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.




(b) Any fees required to be paid on or before the Effective Date shall have been paid.



(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and
disbursements of counsel to Agent to the extent invoiced prior to or on the Effective Date, plus
such additional amounts of such fees, charges and disbursements as shall constitute its reasonable
estimate of such fees, charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter preclude a final
settling of accounts between Borrower and Agent).



Without limiting the generality of the provisions of Section 10.03, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless Agent shall have received notice from such Lender
prior to the Effective Date specifying its objection thereto.



4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request
for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed
Loans from one Type to the other, or a continuation of Eurodollar Rate Loans) is subject to the
following conditions precedent:



(a) The representations and warranties of Borrower and each other Loan Party contained in
Article VI or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct in all material
respects on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they shall be
true and correct in all material respects as of such earlier date, and except that for purposes of
this Section 4.02, the representations and warranties contained in subsections (a)
and (b) of Section 6.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 7.01.



(b) No Default shall exist, or would result from such proposed Credit Extension or from the
application of the proceeds thereof.



(c) Agent and, if applicable, the L/C Issuer or Swing Line Lender shall have received a
Request for Credit Extension in accordance with the requirements hereof.


 


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Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate
Loans) submitted by Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of
the date of the applicable Credit Extension.



ARTICLE V.

REAFFIRMATION OF CSI GUARANTY




5.01 CSI Guaranty. CSI hereby unconditionally, absolutely, continually and irrevocably
reaffirms its guarantee to Agent, for the benefit of the Benefited Parties, the payment and
performance in full of (a) Borrower’s prompt payment in full, when due or declared due and at all
such times, of all Obligations and all other amounts pursuant to the terms hereof, the Notes, and
all other Loan Documents and all Secured Cash Management Agreements and Secured Hedge Agreements
heretofore, now or at any time or times hereafter owing, arising, due or payable from Borrower to
any one or more of the Benefited Parties, including without limitation principal, interest, premium
or fee (including, but not limited to, loan fees and attorneys’ fees and expenses); and (b)
Borrower’s prompt, full and faithful performance, observance and discharge of each and every
agreement, undertaking, covenant and provision to be performed, observed or discharged by Borrower
hereunder and under all other Loan Documents (collectively, the “Guarantor’s Obligations”).



5.02 Payment. If Borrower shall default in payment or performance of any of the Obligations,
whether principal, interest, premium, fee (including, but not limited to, loan fees and attorneys’
fees and expenses), or otherwise, when and as the same shall become due, whether according to the
terms hereof, by acceleration, or otherwise, or upon the occurrence of any Event of Default
hereunder that has not been cured or waived, then CSI shall, upon demand thereof by Agent or its
successors or assigns as of the date of such demand, (i) fully pay to Agent, for the benefit of the
Benefited Parties, an amount equal to all of the Guarantor’s Obligations then due and owing or
declared to be due and owing, including for this purpose, in the event of any Event of Default
under Section 9.01(f) hereof (irrespective of the applicability of any restriction on
acceleration or other action as against any other Loan Party under any Debtor Relief Laws), the
entire outstanding or accrued amount of all Obligations or (ii) perform such Guaranteed
Liabilities, as applicable. For purposes of this Section 5.02, CSI acknowledges and
agrees that the “Guarantor’s Obligations” shall be deemed to include any amount (whether principal,
interest, premium, fees) which would have been accelerated in accordance with Section 9.02
hereof but for the fact that such acceleration could be unenforceable or is not allowed under any
Debtor Relief Law.



5.03 Guaranty Absolute. The Guarantee made under this Article V is a Guarantee of
payment and not of collection. The Guarantor’s Obligations shall be absolute and unconditional
irrespective of, and CSI hereby expressly waives, to the extent permitted by law, any defense to
its obligations under this Guarantee by reason of:



(a) any lack of legality, validity or enforceability of this Agreement, of any of the Notes,
of any other Loan Document, or of any other agreement or instrument creating, providing security
for, or otherwise relating to any of the Guarantor’s Obligations or any other guaranty of
any of Borrower’s Obligations (the Loan Documents and all such other agreements and
instruments being collectively referred to as the “Related Agreements”);


 


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(b) any action taken under any of the Related Agreements, any exercise of any right or power
therein conferred, any failure or omission to enforce any right conferred thereby, or any waiver of
any covenant or condition therein provided;



(c) any acceleration of the maturity of any of Borrower’s Obligations or of any other
obligations or liabilities of any Person under any of the Related Agreements;



(d) any release, exchange, non-perfection, lapse in perfection, disposal, deterioration in
value, or impairment of any security for any of Borrower’s Obligations or for any other obligations
or liabilities of any Person under any of the Related Agreements;



(e) any dissolution of Borrower or any other party to a Related Agreement, or the combination
or consolidation of Borrower or any other party to a Related Agreement into or with another entity
or any transfer or disposition of any assets of Borrower or any other party to a Related Agreement;



(f) any extension (including without limitation extensions of time for payment), renewal,
amendment, restructuring or restatement of, any acceptance of late or partial payments under, or
any change in the amount of any borrowings or any credit facilities available under, this
Agreement, any of the Notes or any other Loan Document or any other Related Agreement, in whole or
in part;



(g) the existence, addition, modification, termination, reduction or impairment of value, or
release of any other guaranty (or security therefor) of Borrower’s Obligations (including without
limitation obligations arising under any other Guarantee now or hereafter in effect);



(h) any waiver of, forbearance or indulgence under, or other consent to any change in or
departure from any term or provision contained in this Agreement, any other Loan Document or any
other Related Agreement, including without limitation any term pertaining to the payment or
performance of any of Borrower’s Obligations or any of the obligations or liabilities of any party
to any other Related Agreement;



(i) any other circumstance whatsoever (with or without notice to or knowledge of CSI) which
may or might in any manner or to any extent vary the risks of CSI, or might otherwise constitute a
legal or equitable defense available to, or discharge of, a surety or a guarantor, including
without limitation any right to require or claim that resort be had to Borrower or any other Loan
Party or to any collateral in respect of the Borrower’s Obligations or Guarantor’s Obligations,
other than actual repayment in full of the Borrower’s Obligations or the Guarantor’s Obligations.



It is the express purpose and intent of the parties hereto that the Guarantee made under this
Article V shall be absolute and unconditional under any and all circumstances and shall not
be discharged except by payment as herein provided.


 


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5.04 Reinstatement. CSI agrees that the Guarantee made under this Article V shall
continue to be effective or be reinstated, as the case may be, at any time payment received by
Agent under this Agreement is rescinded or must be restored for any reason, or is repaid by any
Benefited Party in whole or in part in good faith settlement of any pending or threatened avoidance
claim.




5.05 Waiver; Subrogation.



(a) CSI hereby waives notice of the following events or occurrences: (i) the Lenders
heretofore, now or from time to time hereafter making Credit Extensions and issuing Letters of
Credit and otherwise loaning monies or giving or extending credit to or for the benefit of
Borrower, whether pursuant to this Agreement or the Notes or any other Loan Document or any
amendments, modifications, or supplements thereto, or replacements or extensions thereof; (ii) the
Benefited Parties or Borrower heretofore, now or at any time hereafter, obtaining, amending,
substituting for, releasing, waiving or modifying this Agreement, the Notes or any other Loan
Documents; (iii) presentment, demand, default, non-payment, partial payment and protest; (iv) any
Benefited Party heretofore, now or at any time hereafter granting to Borrower (or any other party
liable to the Benefited Parties on account of Borrower’s Obligations) or to any other Guarantor any
indulgence or extensions of time of payment of Borrower’s Obligations, and (v) any Benefited Party
heretofore, now or at any time hereafter accepting from Borrower, any other Guarantor or any other
Person, any partial payment or payments on account of Borrower’s Obligations or any collateral
securing the payment thereof or Agent settling, subordinating, compromising, discharging or
releasing the same. CSI agrees that each Benefited Party may heretofore, now or at any time
hereafter do any or all of the foregoing in such manner, upon such terms and at such times as each
Benefited Party, in its sole and absolute discretion, deems advisable, without in any way or
respect impairing, affecting, reducing or releasing CSI from its Guarantor’s Obligations, and CSI
hereby consents to each and all of the foregoing events or occurrences.



(b) CSI hereby agrees that payment or performance by CSI of the Guarantee made under this
Article V may be enforced by Agent on behalf of the Benefited Parties upon demand by Agent
to CSI without Agent being required, and CSI expressly waives any right it may have to require
Agent, to (i) prosecute collection or seek to enforce or resort to any remedies against Borrower or
any other Guarantor, or (ii) seek to enforce or resort to any remedies with respect to any security
interests, Liens or encumbrances granted to Agent by Borrower, any other Guarantor or any other
Person on account of Borrower’s Obligations or any Guarantee thereof, IT BEING EXPRESSLY
UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY CSI THAT DEMAND UNDER THIS ARTICLE V MAY BE MADE
BY AGENT, AND THE PROVISIONS HEREOF ENFORCED BY AGENT, EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF
DEFAULT OCCURS AND IS CONTINUING UNDER THIS AGREEMENT. Neither Agent nor any Lender shall have any
obligation to protect, secure or insure any of the foregoing security interests, Liens or
encumbrances on the properties or interests in properties subject thereto.


 


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(c) CSI further agrees that it shall have no right of subrogation (unless and until the
occurrence of the Facility Termination Date), reimbursement or indemnity, nor any right of recourse
to security for Borrower’s Obligations. This agreement is expressly intended to prevent
the existence of any claim in respect to such reimbursement by CSI against the estate of
Borrower within the meaning of Section 101 of the Bankruptcy Code of the United States, and to
prevent CSI from constituting a creditor of Borrower in respect of such reimbursement within the
meaning of Section 547(b) of the Bankruptcy Code of the United States in the event of a subsequent
case involving Borrower. If an amount shall be paid to CSI on account of such subrogation rights
at any time prior to termination of this Agreement in accordance with the provisions herein, such
amount shall be held in trust for the benefit of the Benefited Parties and shall forthwith be paid
to Agent, for the benefit of the Benefited Parties, to be credited and applied upon Guarantor’s
Obligations, whether matured or unmatured, in accordance with the terms of this Agreement.



5.06 Waiver of Set-Off. CSI waives any right to assert against Agent or any Lender as a
defense, counterclaim, set-off, recoupment or cross claim in respect of the Guarantor’s
Obligations, any defense (legal or equitable) or other claim which CSI may now or at any time
hereafter have against Borrower or the Benefited Parties without waiving any additional defenses,
set-offs, counterclaims or other claims otherwise available to CSI. If at any time hereafter the
Benefited Parties employ counsel for advice or other representation to enforce any of the
Guarantor’s Obligations that arise out of an Event of Default, then, in any of the foregoing
events, all of the reasonable attorneys’ fees arising from such services and all expenses, costs
and charges in any way or respect arising in connection therewith or relating thereto shall be paid
by CSI to Agent, for the benefit of the Benefited Parties, on demand.



ARTICLE VA.

SECURITY




5A.01 Security. As security for the full and timely payment and performance of all
Obligations, the Loan Parties shall do or cause to be done all things necessary in the reasonable
opinion of the Agent to grant to the Agent for the benefit of the Lenders, a duly perfected first
priority mortgage and assignment of leases and rents on each Pledged Property (and all
improvements, fixtures, and other appurtenances thereto in which the applicable Loan Party has an
interest, as may be provided in the Mortgage for such Pledged Property) and a duly perfected first
priority security interest in all of the applicable Loan Party’s now owned or hereafter acquired
personal property related to such Pledged Property (as may be provided in the Mortgage for such
Pledged Property), subject in each case to no prior Lien or other encumbrance or restriction on
transfer (other than restrictions on transfer imposed by applicable securities laws), other than
Permitted Encumbrances.



5A.02 Further Assurances. At the request of the Agent, the Borrower will or will cause any
Guarantor, as the case may be to execute, by its duly authorized officers, alone or with the Agent,
any certificate, instrument, statement or document, or to procure any such certificate, instrument,
statement or document, or to take such other action (and pay all connected costs) which the Agent
reasonably deems necessary from time to time to create, continue or preserve the liens and security
interests in the Collateral (and the perfection and priority thereof) of the Agent contemplated
hereby and by the other Loan Documents.


 


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5A.03 Information Regarding Collateral. The Borrower represents, warrants and covenants that
the chief executive office of the Borrower and each other Person providing Collateral pursuant to
any of the Security Instruments (each, a “Grantor”) at the Effective Date is located at the
address or addresses specified on Schedule 5A.03. The Borrower shall not change, or permit
any other Grantor to change, the location of its chief executive office except upon giving not less
than thirty (30) days’ prior written notice to the Agent and taking or causing to be taken all such
action at the Borrower’s or such other Grantor’s expense as may be reasonably requested by the
Agent to perfect or maintain the perfection of the Lien of the Agent in any Collateral.



5A.04 Borrowing Base. (a) Any Eligible Property may become a Pledged Property and be included
in the Borrowing Base as of the Effective Date upon receipt by the Agent of an executed Mortgage
encumbering such Eligible Property and (A) a pro forma Compliance Certificate giving effect to the
inclusion of such Eligible Property in the Borrowing Base, including a calculation of annualized
Net Operating Income for such Property; (B) an Available Amount Certificate; (C) historical (to the
extent such Property has been operational for a calendar quarter or more) and pro forma operating
statements and occupancy reports (to the extent such statements or reports exist, the Borrower
hereby acknowledging that the absence of such statements or reports may impair the ability to
obtain Required Lender approval) with respect to such Eligible Property; (D) a Phase I
environmental assessment (and, if required or recommended by the results of the Phase I
environmental assessment, a Phase II environmental assessment) with respect to such Eligible
Property provided, however, with respect to each of the Existing Eligible
Properties, the previously approved Phase I environmental assessment shall be satisfactory to the
Agent if supplemented by an environmental questionnaire delivered by the owner or ground lessee of
such Existing Eligible Property, in form and substance reasonably satisfactory to the Agent and
dated not earlier than six months prior to the Effective Date; (E) a site plan and current as-built
survey (or, with respect to an Existing Eligible Property, the previously delivered survey and
title insurance covering over matters that would be disclosed by a current survey to be provided in
the form of updated access, survey and comprehensive endorsements, in form and substance
satisfactory to the Agent), and certificates as to federally designated flood zones with respect to
such Eligible Property; (F) a title insurance commitment for an ALTA loan title insurance policy
with respect to such Eligible Property (or, with respect to each of the Existing Eligible
Properties, an endorsement to the existing title insurance policy updating the title and policy
coverage) in an amount acceptable to the Agent insuring the first priority lien of the Mortgage
encumbering such Eligible Property, or the Ground Lease leasehold estate of the Grantor in the
Eligible Property, as applicable, and reflecting no title exceptions other than the Permitted
Encumbrances; (G) an appraisal of such Eligible Property by a Qualified Appraiser, which appraisal
shall be prepared in accordance with the requirements set forth in Schedule 5A.04(a)
hereto, ordered by the Agent (in the name of and at the sole expense of the Borrower); (H) an
Eligible Property Compliance Certificate for such Eligible Property, satisfactory to the Agent; (I)
evidence of insurance for such Eligible Property as required under the Mortgage for such Eligible
Property; (J) a general description of such Eligible Property’s location and features; (K) a
Uniform Commercial Code search showing no Liens on such Eligible Property other than the Permitted
Encumbrances; and (L) any other Real Property Support Documents for such Eligible Property as may
be required by Agent. In the case of Eligible Properties requested to be included in the Borrowing
Base after the Effective Date, the Agent shall make its determination as to the


 


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 inclusion in the
Borrowing Base of such Eligible Property qualifying as such by compliance with items (a)-(f) of the
definition of “Eligible Property” within 10 Business Days of receipt by the Agent of the Borrower’s
request therefor together with the documentation described in this Section 5A.04. The
Required Lenders shall make their determination as to the inclusion in the Borrowing Base of any
such Eligible Property qualifying as such under item (g) of the definition of “Eligible Property”
within 15 Business Days of receipt from the Agent of copies of the Borrower’s request therefor
together with the documentation described in this Section 5A.04. Upon the approval by the
Agent (or the Required Lenders, as applicable) of the inclusion of such Eligible Property in the
Borrowing Base, the Borrower or applicable Loan Party shall execute or cause to be executed the
Mortgage with respect to such Eligible Property. Upon (a) execution, delivery and recordation, as
applicable, of the Mortgage and the Lease Party Documents relating to such Eligible Property and
any other documents required by the Agent, (b) delivery of a loan title insurance policy in form
and substance reasonably satisfactory to Agent and insuring the lien of the Mortgage as described
above, (c) delivery of a favorable opinion of local counsel to the Grantor under the Mortgage in
the state where such Eligible Property is located, in the form of Exhibit K and addressed
to the Agent and each Lender, as to such matters concerning such Grantor and the Loan Documents as
the Agent may reasonably request, (d) delivery of Uniform Commercial Code financing statements and
fixture filings suitable in form and substance for filing in all places required by applicable Law
to perfect the Liens of the Agent under such Mortgage and other Security Instruments related to
such Eligible Property as a first priority Lien (subject only to Permitted Encumbrances) as to
items of Collateral in which a security interest may be perfected by the filing of financing
statements or fixture filings, and such other documents and/or evidence of other actions as may be
necessary under applicable Law to perfect the Liens of the Agent under the Mortgage and other
Security Instruments related to such Eligible Property as a first priority Lien in and to such
other Collateral as the Agent may require, and (e) delivery of the Grantor Authority Documents for
the Grantor executing such Mortgage, such Eligible Property shall become a part of the Borrowing
Base (for so long as it maintains the criteria of eligibility set forth in the definition of
“Eligible Property”) and the Borrower shall deliver to the Agent an updated Schedule
5A.04(b) reflecting such additional Pledged Property.



(b) Upon request of the Borrower, the Mortgage for any Pledged Property may be terminated and
discharged and such Pledged Property released provided that: (i) funds are delivered to the
Agent for the prepayment of Loans as provided in Section 2.05(a); (ii) the Borrower
delivers to the Agent a pro forma Compliance Certificate and a pro forma Available Amount
Certificate giving effect to such release; (iii) the Borrower delivers to the Agent an updated
Schedule 5A.04(b) reflecting the release of such Pledged Property; and (iv) no Default or
Event of Default has occurred or is continuing. All reasonable costs, expenses and attorneys’ fees
incurred by the Agent or the Trustee under the Mortgage in connection with the release of any
Pledged Property pursuant to this Section 5A.04(b) shall be reimbursed by the Borrower
pursuant to Section 11.04(a) hereof. No Pledged Property will be released from the
applicable Mortgage until the Agent has received the amount of funds, if any, required by this
Section 5A.04(b), together with any amounts required, if any, owing under Section
3.05.


 


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(c) In the event that there shall be made any Additions or Enhancements to a Borrowing Base
Property, which Additions or Enhancements have a cost or value (as evidenced in writing in a form
and manner satisfactory to the Agent) in excess of the lesser of (i) $2,500,000 or (ii) 20% of the
Appraised Value (without giving effect to such Additions or
Enhancements) of such Borrowing Base Property, the Borrower shall deliver to the Agent, not
later than 30 Business Days after completion of such Addition or Enhancement, (A)(i) if the
Additions or Enhancements include additional real property (either leased or in fee), a
modification to the related Mortgage amending the legal description of such Borrowing Base Property
to include such additional real property, (ii) a new appraisal meeting the Appraisal Requirements
for such Borrowing Base Property if the Borrower intends to include such Addition or Enhancement in
the Borrowing Base and (iii) a new or updated survey with respect to such Borrowing Base Property
if either the Additions or Enhancements include additional real property (either leased or in fee)
or the footprint of the Improvements (as defined in the applicable Mortgage) changes, (B) an
endorsement to the existing title insurance policy covering such Borrowing Base Property adding the
Additions or Enhancements to the description of the insured property (if the Additions or
Enhancements include additional real property), increasing the amount of such title insurance to
reflect the increase in value and updating the time and date of such policy to the time and date of
recording of the modification to the related Mortgage described in (A) above and reflecting no
title exceptions other than Permitted Encumbrances.



(d) For purposes of calculating the Appraised Value of the Pledged Properties included in the
Borrowing Base, the Borrower shall comply with the Appraisal Requirements set forth in Schedule
5A.04(a) attached hereto. The Lenders agree that the Agent and the Borrower may from time to
time modify or amend the Appraisal Requirements so long as such modification or amendment does not
adversely affect the interest of the Lenders hereunder.



(e) Prior to any increase, through the operation of Section 2.14, in the Aggregate
Commitments that would cause the Aggregate Commitments to exceed $200,000,000, the Borrower (i)
shall cause to be recorded Mortgage modifications increasing the maximum amount secured under the
Security Instruments to such increased amount; provided, however, that, with
respect to any Mortgage filed in a state with significant tax or recording costs or other expenses,
then, in the Agent’s sole discretion, the Mortgage modification may provide for a lesser maximum
amount secured so long as such maximum amount secured is at least equal to 120% of the Appraised
Value of the property subject to such Mortgage, (ii) shall obtain either (A) new title insurance
policies insuring such Mortgages reflecting the appropriate coverage and insuring the first
priority of such Mortgage, subject only to Permitted Encumbrances or (B) endorsements to each of
the original title insurance policies insuring such Mortgages updating the time and date of
coverage to the date and time of recording such Mortgage modification and insuring the continued
first priority of such Mortgage, subject only to the Permitted Encumbrances and (iii) shall deliver
to the Agent such other documents (including title endorsements and Grantor Authority Documents) as
may be reasonably required by the Agent and the title insurer.



ARTICLE VI.

REPRESENTATIONS AND WARRANTIES





Each of CSI and Borrower represent and warrant to Agent and the Lenders that:



6.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each
Subsidiary thereof (a) is duly organized or formed, validly existing and in good standing under the
Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and
authority and all requisite governmental licenses, authorizations, consents
and approvals to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly
qualified and is licensed and in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all Laws; except in each case referred to
in clause (b)(i), (c) or (d), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


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6.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to be made under (i)
any Contractual Obligation to which such Person is a party or affecting such Person or the
properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree
of any Governmental Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law. Each Loan Party and each Subsidiary thereof is in compliance with
all Contractual Obligations referred to in clause (b)(i), except to the extent that failure
to do so could not reasonably be expected to have a Material Adverse Effect.



6.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, any Loan Party of this Agreement or any other Loan Document except for
filings and recordings necessary to perfect the Liens created under the Security Instruments.



6.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms.



6.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements
(i) were prepared in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition
of CSI and its Subsidiaries as of the date thereof and their results of operations for the period
covered thereby in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of CSI and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness.



(b) The unaudited consolidated balance sheets of CSI and its Subsidiaries dated December 31,
2010 and the related consolidated statements of income or operations, shareholders’ equity and cash
flows for the fiscal year ended on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (ii) fairly present the financial condition of CSI and
its Subsidiaries as of the date thereof and their results of operations for the period covered
thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes
and to normal year-end audit adjustments.


 


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(c) [Reserved.]



(d) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.



6.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of CSI and Borrower after due and diligent investigation, threatened or contemplated,
at law, in equity, in arbitration or before any Governmental Authority, by or against CSI or any of
its Subsidiaries or against any of their properties or revenues that (a) purport to affect or
pertain to this Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) except as specifically disclosed in Schedule 6.06, either individually or in
the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse
Effect, and there has been no adverse change in the status, or financial effect on any Loan Party
or any Subsidiary thereof, of the matters described on Schedule 6.06.



6.07 No Default. Neither CSI, Borrower nor any Subsidiary is in default under or with respect
to any Contractual Obligation that could, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. No Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this Agreement or any other Loan
Document.



6.08 Ownership of Property; Liens. Each of CSI, Borrower and each Subsidiary has good record
and marketable title in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by
Section 8.01.



6.09 Environmental Compliance. CSI, Borrower and each Subsidiary conduct in the ordinary
course of business a review of the effect of existing Environmental Laws and claims alleging
potential liability or responsibility for violation of any Environmental Law on their respective
businesses, operations and properties, and as a result thereof Borrower has reasonably concluded
that, except as specifically disclosed in Schedule 6.09, such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.



6.10 Insurance. The properties of CSI, Borrower and each Subsidiary are insured with
financially sound and reputable insurance companies not Affiliates of CSI, in such amounts (after
giving effect to any self-insurance compatible with the following standards), with such deductibles
and covering such risks (including any and all acts of terrorism) as are customarily
carried by companies engaged in similar businesses and owning similar properties in localities
where Borrower or the applicable Subsidiary operates.


 


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6.11 Taxes. CSI, Borrower and each Subsidiary have filed all United States Federal and state
income and other material tax returns and reports required to be filed, and have paid all United
States Federal and state income and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets otherwise due and
payable, except those which are being contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves have been provided in accordance with GAAP. There is no
proposed tax assessment against CSI, Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect.



6.12 ERISA Compliance. (a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other United States Federal or state Laws. Each Plan
that is intended to qualify under Section 401(a) of the Code has received a favorable determination
letter from the IRS or an application for such a letter is currently being processed by the IRS
with respect thereto and, to the best knowledge of CSI and Borrower, nothing has occurred which
would prevent, or cause the loss of, such qualification. CSI, Borrower and each ERISA Affiliate
have made all required contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period pursuant to Section 412
of the Code has been made with respect to any Plan.



(b) There are no pending or, to the best knowledge of CSI and Borrower, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.



(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither CSI, Borrower nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
CSI, Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (v) neither CSI, Borrower nor any ERISA Affiliate has engaged in a transaction that could
be subject to Sections 4069 or 4212(c) of ERISA, except, to the extent, with respect to clauses
(i) through (v) collectively, as could not reasonably be expected to have a Material
Adverse Effect.



6.13 Subsidiaries. As of the Effective Date, neither CSI nor Borrower has any Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 6.13, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by a Loan Party in the amounts specified on Part (a) of Schedule
6.13 free and clear of all Liens. Neither CSI nor Borrower has any equity investments in any
other corporation or entity other than those specifically disclosed in Part (b) of Schedule
6.13. All of the outstanding Partnership Units in Borrower have been validly issued and are
fully paid
and nonassessable. As of the Effective Date, the Excluded Subsidiaries are those entities
described in Part (c) of Schedule 6.13.


 


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6.14 Margin Regulations; Investment Company Act. Neither CSI nor Borrower is engaged nor will
engage, principally or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit
for the purpose of purchasing or carrying margin stock.



6.15 Disclosure. Each of CSI and Borrower have disclosed to Agent and Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No report, financial statement, certificate or
other information furnished (whether in writing or orally) by or on behalf of any Loan Party to
Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of
this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with respect to
projected financial information, Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.



6.16 Compliance with Laws. Each of CSI, Borrower and each Subsidiary is in compliance in all
material respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.



6.17 Intellectual Property; Licenses, Etc. CSI, Borrower and each Subsidiary owns, or
possesses the right to use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights that are reasonably
necessary for the operation of their respective businesses, without conflict with the rights of any
other Person. To the best knowledge of CSI and Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now contemplated to be
employed, by CSI, the Borrower or any Subsidiary infringes upon any rights held by any other
Person. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge
of CSI or Borrower, threatened, which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.



6.18 Solvency. On and after the Effective Date, Borrower, individually, and the Borrower and
the Guarantors, taken as a whole, are Solvent, measured after giving effect to all Borrowings under
this Agreement on the Effective Date and all Borrowings thereafter.



6.19 REIT Status. CSI has done all things necessary to qualify as a REIT, has been organized
in conformity with the requirements for qualification as a REIT and its method of
operation as described in the Registration Statement will permit it to meet the requirements
for qualification and taxation as an REIT.


 


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6.20 Ground Leases; Appraised Value; Net Operating Income; Existing Surveys. (a) Each of the
Ground Leases is in full force and effect and the Borrower, CSI and each Guarantor is in compliance
with all of the terms and conditions of such Ground Leases; none of the Ground Leases have been
amended or modified, except as expressly permitted under the applicable Ground Lessor Agreement or
this Agreement, or as otherwise permitted by the Agent, since the date of the Eligible Property
Compliance Certificate for the Pledged Property to which it relates; and neither the Borrower nor
CSI has any information which leads it to believe that the Appraised Value of the Pledged
Properties as set forth on Schedule 5A.04(a) is higher than it should be; and



(b) To the best knowledge of CSI, the Borrower and each Subsidiary, with respect to each
Borrowing Base Property, since the date of the most recent Available Amount Certificate, no event
has occurred or condition exists that could reasonably be expected to have a material adverse
effect upon the Appraised Value or Net Operating Income of such Borrowing Base Property.



(c) For each of the surveys previously delivered to the Agent for the Existing Eligible
Properties described on Schedule 6.20, as of the Effective Date, there are no buildings or
other material exterior improvements or changes to the boundary lines that are not depicted on such
surveys.



ARTICLE VII.

AFFIRMATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, CSI
and Borrower, as applicable, shall, and shall (except in the case of the covenants set forth in
Sections 7.01, 7.02, 7.03 and 7.12) cause each Subsidiary (other
than Excluded Subsidiaries) to:



7.01 Financial Statements. Deliver to Agent a sufficient number of copies for delivery by
Agent to each Lender, in form and detail satisfactory to Agent and the Required Lenders:



(a) not later than five days following the filing of CSI’s Form 10-K with the SEC for each
fiscal year of CSI, but in any event within 90 days after the end of each fiscal year of CSI, a
consolidated balance sheet of CSI and its Subsidiaries as at the end of such fiscal year, and the
related consolidated statements of income or operations, shareholders’ equity and cash flows for
such fiscal year, certified by the chief executive officer or the chief financial officer of CSI as
fairly presenting the financial condition of CSI and its Subsidiaries and setting forth in each
case in comparative form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent
certified public accounting firm of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit; and


 


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(b) not later than five days following the filing of CSI’s Form 10-Q with the SEC for the
first three fiscal quarters of each fiscal year of CSI, but in any event within 45 days after the
end of each of the first three fiscal quarters of each fiscal year of CSI, a consolidated balance
sheet of CSI and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal quarter and for the portion of CSI’s fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and
the corresponding portion of the previous fiscal year, all in reasonable detail, certified by the
chief executive officer or the chief financial officer of CSI as fairly presenting the financial
condition, results of operations, shareholders’ equity and cash flows of CSI and its Subsidiaries
in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.



As to any information contained in materials furnished pursuant to Section 7.02(d),
neither CSI nor the Borrower shall be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation of the
obligation of CSI and the Borrower to furnish the information and materials described in
clauses (a) and (b) above at the times specified therein.



7.02 Certificates; Other Information. Deliver to Agent a sufficient number of copies for
delivery by Agent to each Lender, in form and detail satisfactory to Agent and the Required
Lenders:



(a) concurrently with the delivery of the financial statements referred to in Section
7.01(a), (i) a certificate of CSI’s independent certified public accountants certifying such
financial statements and stating that in making the examination necessary therefor no knowledge was
obtained of any Default under the financial covenants set forth herein or, if any such Default
shall exist, stating the nature and status of such event and (ii) an annual forecast of the
consolidated statements of income and operations and cash flows for CSI and its Subsidiaries;



(b) concurrently with the delivery of the financial statements referred to in Sections
7.01(a) and (b):




(i) a duly completed Compliance Certificate and a duly completed Available Amount
Certificate, each signed by the chief financial officer of CSI;




(ii) a duly completed statement of Funds From Operations of Borrower; and




(iii) a duly completed report of newly acquired Properties by Borrower and any
Subsidiary, including each such Property’s net operating income, cost, and mortgage debt, if
any;



(c) promptly after any request by Agent or any Lender, copies of any detailed audit reports,
management letters or recommendations submitted to the board of directors (or the audit committee
of the board of directors) of CSI by independent accountants in connection with the accounts or
books of CSI or any Subsidiary, or any audit of any of them;


 


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(d) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of CSI, and copies of all
annual, regular, periodic and special reports and registration statements which CSI may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and
not otherwise required to be delivered to Agent pursuant hereto;



(e) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 7.01 or any other clause of this Section 7.02;



(f) promptly, and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice or other correspondence received from the
SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or
possible investigation or other inquiry by such agency regarding financial or other operational
results of any Loan Party or any Subsidiary thereof;



(g) promptly, such additional information regarding the business, financial or corporate
affairs of Borrower, any Loan Party or any Subsidiary, or compliance with the terms of the Loan
Documents, as Agent or any Lender may from time to time reasonably request; and



(h) promptly upon commencement of any Addition or Enhancement, information regarding the
Borrowing Base Property to which such Addition or Enhancement relates, the expected cost and
completion date of such Addition or Enhancement and such other information regarding such Addition
or Enhancement or the Agent may reasonably request.



Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(a), (b) or (d) (to the extent any such documents are included
in materials otherwise filed with the SEC) may be delivered electronically and if so delivered,
shall be deemed to have been delivered on the date (i) on which CSI posts such documents, or
provides a link thereto on CSI’s website on the Internet at the website address listed on
Schedule 11.02; or (ii) on which such documents are posted on CSI’s behalf on an Internet
or intranet website, if any, to which each Lender and the Agent have access (whether a commercial,
third-party website or whether sponsored by the Agent); provided that CSI shall deliver
paper copies of such documents to the Agent or any Lender that requests CSI to deliver such paper
copies until a written request to cease delivering paper copies is given by the Agent or such
Lender. Notwithstanding anything contained herein, in every instance CSI shall be required to
provide paper copies of the Compliance Certificates required by Section 7.02(b) to the
Agent. Except for such Compliance Certificates, the Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by CSI with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.


 


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Borrower hereby acknowledges that (a) Agent and/or Arrangers will make available to the
Lenders and the L/C Issuer materials and/or information provided by or on behalf of Borrower
hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on IntraLinks
or another similar electronic system (the “Platform”) and (b) certain of the Lenders
may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to Borrower or its securities) (each, a “Public Lender”).
Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” so long as Borrower is the issuer of any
outstanding debt or equity securities that are registered or issued pursuant to a private offering
or is actively contemplating issuing any such securities which, at a minimum, shall mean that the
word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC”, Borrower shall be deemed to have authorized Agent, Arrangers, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material non-public information with
respect to Borrower or its securities for purposes of United States Federal and state securities
laws (provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 11.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Investor”; and (z) Agent and Arrangers shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not designated “Public Investor”. Notwithstanding the foregoing, Borrower shall be under
no obligation to mark any Borrower Materials “PUBLIC”.




7.03 Notices. Promptly notify Agent and each Lender:




(a) of the occurrence of any Default;



(b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of CSI, Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between CSI, Borrower or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or proceeding affecting
CSI, Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws;




(c) of the occurrence of any ERISA Event; and



(d) of any material change in accounting policies or financial reporting practices by CSI,
Borrower or any Subsidiary.



Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer
of Borrower setting forth details of the occurrence referred to therein and stating what action
Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section
7.03(a) shall describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.



7.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its obligations and liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by CSI, Borrower or such Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property; and (c) all Indebtedness,
as and when due and payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.


 


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7.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 8.04 or 8.05; (b) take all reasonable
action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.



7.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation
and maintenance of its facilities.



7.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies that are not Affiliates of CSI, insurance with respect to its properties and business
against loss or damage (including loss or damage resulting from any and all acts of terrorism) of
the kinds customarily insured against by Persons engaged in the same or similar business of such
types and in such amounts (after giving effect to any self-insurance compatible with the following
standards) as are customarily carried under similar circumstances by such other Persons, and each
such insurance policy shall provided for not less than (i) 30 days’ prior notice to Agent of
cancellation of such insurance due to (1) physical changes in the properties, which increase the
likelihood of a covered loss, (2) a material increase in the likelihood of a covered loss or (3)
loss or decrease of the applicable insurance company’s reinsurance covering the insurance provided
by such insurance policy and (ii) 10 days’ prior notice to Agent of cancelation of such insurance
for any reason other than those listed in the foregoing clause (i).



7.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, write, injunction or decree
is being contested in good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.



7.09 Books and Records. (a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of CSI, Borrower or such Subsidiary, as
the case may be; and (b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory jurisdiction over CSI,
Borrower or such Subsidiary, as the case may be.


 


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7.10 Inspection Rights. Permit representatives and independent contractors of Agent,
including upon the request of the Required Lenders, to visit and inspect any of its properties, to
examine its corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, all at the expense of and at such reasonable times during normal
business hours Borrower (but no more than two times during any 12 month period so long as no Event
of Default shall have occurred and be continuing), upon reasonable advance notice to Borrower;
provided, however, that when an Event of Default exists Agent or any Lender (or any
of their respective representatives or independent contractors) may do any of the foregoing at the
expense of Borrower at any time during normal business hours and without advance notice, subject to
the terms of any tenant leases and Lease Party Documents applicable to such property.



7.11 Use of Proceeds. Use the proceeds of the Credit Extensions for (a) working capital and
general corporate purposes, including financing acquisitions and development activity, and (b) to
refinance existing and future indebtedness.




7.12 Financial Covenants.



(a) Total Leverage Ratio. Maintain at all times during any period set forth below a
Total Leverage Ratio of no greater than the ratio set forth below opposite such period. Unless
otherwise requested by the Agent, this ratio will be calculated for reporting purposes at the end
of each reporting period for which this Agreement requires delivery of financial statements.



	 	 	 	 	 
	 	 	Maximum Total	 
	Applicable Period	 	Leverage Ratio	 
	 
	 	 	 
	Effective Date through March 31, 2013
	 	 	0.65 to 1.00	 
	April 1, 2013 and thereafter
	 	 	0.60 to 1.00	 






(b) Secured Recourse Indebtedness. Maintain at all times a ratio of Secured Recourse
Indebtedness of CSI and its Subsidiaries (excluding Indebtedness incurred under the Loan Documents)
to Consolidated Total Asset Value of 0.20 to 1.00 or less. Unless otherwise requested by the
Agent, this ratio will be calculated for reporting purposes at the end of each reporting period for
which this Agreement requires delivery of financial statements.



(c) Fixed Charge Coverage Ratio. Maintain as of the end of each fiscal quarter of CSI
a ratio of Consolidated Adjusted EBITDA to Consolidated Fixed Charges of no less than the ratio set
forth below opposite such fiscal quarter. This ratio will be calculated at the end of each
reporting period for which this Agreement requires delivery of financial statements, using the
results of the four consecutive fiscal quarter period of CSI ending with that reporting period.



	 	 	 	 	 
	 	 	Minimum Fixed Charge	 
	Four Fiscal Quarters Ending	 	Coverage Ratio	 
	 
	 	 	 	 
	Effective Date through March 31, 2012
	 	 	1.35 to 1.00	 
	April 1, 2012 and thereafter
	 	 	1.50 to 1.00	 





 


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(d) Consolidated Tangible Net Worth. Maintain at all times Consolidated Tangible Net
Worth equal to at least the sum of the following:




(i) $237,105,600.00; plus




(ii) 80% of Net Proceeds of Equity Issuances issued after the Effective Date.



(e) Facility Interest Coverage. Maintain at all times a ratio of Net Operating Income
from Borrowing Base Properties to Facility Interest Expense of 1.50 to 1.00 or greater. This ratio
will be calculated for reporting purposes at the end of each reporting period for which this
Agreement requires delivery of financial statements, using the results of the four consecutive
fiscal quarter period of CSI ending with that reporting period.



7.13 Additional Guarantors. Notify Agent at the time that any Person becomes a Material
Subsidiary, and promptly thereafter (and in any event within 30 days, cause such Person to (a)
become a Guarantor by executing and delivering to Agent a counterpart of the Guaranty Joinder
Agreement or such other document as Agent shall deem appropriate for such purpose, and (b) deliver
to Agent documents of the types referred to in clauses (iii) and (iv) of
Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability of the documentation
referred to in clause (a) against such Person), all in form, content and scope reasonably
satisfactory to Agent.



7.14 REIT Qualification; Listing on Securities Exchange. Subject to the limitations set forth
in Section 8.06, with respect to CSI, do all things required or necessary to (a) qualify as
and maintain its qualification as a REIT and obtain, at Agent’s request but only to the extent that
an Event of Default has occurred and is continuing, an opinion of counsel acceptable to Agent as to
CSI’s status as a REIT and as to CSI’s power and authority to conduct its business as a REIT and
(b) maintain a listing on the New York Stock Exchange (NYSE) or NASDAQ.



7.15 Ownership of Borrower. With respect to CSI, (a) ensure that CS Business Trust I (unless
CSI (or a successor to CS Business Trust I that is wholly-owned by CSI and is a Guarantor) is the
sole general partner of the Borrower) remains the sole general partner of Borrower and owns not
less than 1% of the Partnership Units of Borrower, and (b) ensure that CSI Controls the Borrower.



7.16 Borrowing Base Requirements. Cause the Borrowing Base Properties to at all times
maintain a minimum aggregate Occupancy Rate of not less than 80%, and the Borrowing Base to consist
of not less than ten Borrowing Base Properties that are not Development Properties (i) having an
aggregate Occupancy Rate of not less than 80%, (ii) having an aggregate Appraised Value of not less
than $100,000,000 and (iii) which have a loan to value ratio (which such ratio shall include the
Outstanding Amount of all Loans and L/C Obligations) of no more than (a) from the Effective Date
until March 1, 2013, 70% and (b) from March 1, 2013 and each date thereafter, 65%.


 


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7.17 Post-closing Surveys. Not later than the 90th day following the Effective Date, deliver
to the Administrative Agent a new survey for each Borrowing Base Property listed on
Schedule 7.17 and updated insurance coverage as to survey matters for each such
property, including a comprehensive endorsement, in form and substance satisfactory to the Agent
(collectively, “Insurance Coverage”); provided, however, if any such Insurance
Coverage is not delivered by such date because of a survey or other title issue with respect to the
related Borrowing Base Property, the Borrower shall use its commercially reasonable efforts
(including but not limited to remediating such title or survey issues) to cause such Insurance
Coverage to be issued prior to the 180th day following the Effective Date; provided,
further, that if, in the Administrative Agent’s reasonable discretion, (i) the
Borrower is diligently pursuing remediation to any such title or survey problem, the Administrative
Agent may grant the Borrower an additional period following such 180 day period (such extension not
to exceed 90 days) to deliver such Insurance Coverage or (ii) such title or survey issue does not
materially affect the use and value of the related Borrowing Base Property, the Administrative
Agent may waive the requirement that Insurance Coverage be delivered with respect to such Borrowing
Base Property. If the new survey for any Borrowing Base Property reveals a change in the boundary
lines for such property, Borrower further agrees to promptly execute a Mortgage modification to
modify the Mortgage for such Borrowing Base Property to correct the legal description thereof and
to obtain an endorsement to the existing title policy insuring such Mortgage, updating the time
and date of coverage through the time and date of recording such Mortgage modification and insuring
the continued first priority of such Mortgage, subject only to the Permitted Encumbrances.



7.18 Post-Effectiveness Obligations. The Borrower hereby agrees to deliver, or cause to be
delivered, to the Administrative Agent, no later than 30 days after the Effective Date, (i) a
favorable opinion of counsel to Erdman, addressed to the Administrative Agent and each Lender, as
to the due authorization of the Guaranty, and any other Loan Document to which Erdman is a party,
by Erdman and (ii) a copy of the Articles of Incorporation of Erdman, certified to as of a date no
more than 30 days prior to the Effective Date by the Wisconsin Secretary of State, each in form and
substance reasonably satisfactory to the Administrative Agent.



ARTICLE VIII.

NEGATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, CSI
and Borrower, as applicable, shall not, nor shall they permit any Subsidiary (other than Excluded
Subsidiaries) to, directly or indirectly:



8.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:




(a) Liens pursuant to any Loan Document;



(b) Liens existing on the date hereof and listed on Schedule 8.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the
amount secured or benefited thereby is not increased, (iii) the direct or any contingent obligor
with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured
or benefited thereby is permitted by Section 8.03(b);



(c) Liens for taxes not yet due or payable or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;


 


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(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;



(e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;



(f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;



(g) with respect to any real property which is not a Pledged Property, easements,
rights-of-way, restrictions and other similar encumbrances affecting real property which, in the
aggregate, are not substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person or are otherwise disclosed on the applicable title commitment and
acceptable to the Agent;



(h) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 9.01(h);



(i) Liens securing Indebtedness permitted under Section 8.03(e); provided that
(i) such Liens do not at any time encumber any property other than the property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition;




(j) Liens securing Non-recourse Indebtedness permitted under Section 8.03(g); and



(k) with respect to any real property which is a Pledged Property, Permitted Liens and
Permitted Encumbrances.




8.02 Investments. Make any Investments, except:



(a) Investments held by CSI, Borrower or any Subsidiary in the form of cash equivalents or
short-term investment grade marketable debt securities;



(b) advances to officers, directors and employees of CSI, Borrower and Subsidiaries in an
aggregate amount not to exceed $500,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;



(c) (i) Investments of CSI in CS Business Trust I or CS Business Trust II, (ii) Investments by
CSI, CS Business Trust I and CS Business Trust II in Borrower, (iii) Investments by Borrower in any
Subsidiary of Borrower and (iv) Investments of any Subsidiary in Borrower or in any other
Subsidiary of the Borrower;


 


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(d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;




(e) Guarantees permitted by Section 8.03;




(f) Investments in Swap Contracts permitted under Section 8.03(d);




(g) Permitted Acquisitions;



(h) Investments by the Borrower or any of its Subsidiaries in income-producing Properties not
constituting (i) Unimproved Land, (ii) Mortgage Receivables or (iii) Development Properties; and



(i) other Investments by the Borrower or any of its Subsidiaries, provided that
Investments in:




(i) Mortgage Receivables shall not exceed, in the aggregate at any time, 20% of the
Consolidated Total Asset Value;




(ii) Unimproved Land shall not exceed, in the aggregate at any time, 5% of the
Consolidated Total Asset Value;




(iii) Development Property shall not exceed, in the aggregate at any time, 35% of the
Consolidated Total Asset Value; and




(iv) Unconsolidated Affiliates and all other Investments not covered by the foregoing
clauses (i), (ii), or (iii) or Sections 8.02(a) through
(h) shall not exceed, in the aggregate at any time, 10% of the Consolidated Total
Asset Value;



provided, further, however, that the Investments permitted under
clauses (i) through (iv) of this paragraph (i) above shall not exceed, in
the aggregate at any time, 35% of the Consolidated Total Asset Value.



For purposes of this Section 8.02, the value of any Investment in Development Property not
yet completed shall be measured as the total cost to develop the real property under construction,
including the acquisition of land, as reasonably determined by Borrower in good faith, and not as
expenditures to date.




8.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



(a) Indebtedness under the Loan Documents;



(b) (i) Indebtedness outstanding on the date hereof and listed on Schedule 8.03 and
(ii) any refinancings, refundings, renewals or extensions of such Indebtedness (including
subsequent refinancings, refundings, renewals and extensions), provided that no Default
would result therefrom.


 


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(c) Guarantees of CSI, Borrower or any Subsidiary in respect of Indebtedness otherwise
permitted hereunder of CSI, Borrower or any Subsidiary;



(d) obligations (contingent or otherwise) of CSI or Borrower or any Subsidiary existing or
arising under any Swap Contract, provided that (i) such obligations are (or were) entered
into by such Person in the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person, and not
for purposes of speculation or taking a “market view”; and (ii) such Swap Contract does not contain
any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;



(e) Indebtedness of CSI, Borrower or any Subsidiary in respect of capital leases, Synthetic
Lease Obligations and purchase money obligations for fixed or capital assets within the limitations
set forth in Section 8.01(i); provided, however, that the aggregate amount
of all such Indebtedness at any one time outstanding shall not exceed $10,000,000;




(f) other Recourse Indebtedness of the Borrower or any of its Subsidiaries;



(g) Non-recourse Indebtedness of the Borrower or any of its Subsidiaries (other than Erdman or
any Subsidiary thereof); and



(h) intercompany Indebtedness that would constitute an Investment permitted under Section
8.02(c).



8.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:



(a) any Subsidiary may merge with (i) Borrower, provided that Borrower shall be the
continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that
when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary
shall be the continuing or surviving Person, and, provided, further, that if a
Guarantor is merging with another Subsidiary that is not a Guarantor, the Guarantor shall be the
surviving Person; and



(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to CSI or to another Subsidiary (other than an Excluded Subsidiary);
provided that if the transferor in such a transaction is a wholly-owned Subsidiary, then
the transferee must either be CSI, the Borrower or any other wholly-owned Subsidiary and,
provided, further, that if the transferor of such assets is a Guarantor, the
transferee must be CSI, the Borrower or any other Guarantor.



8.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition,
except:



(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business;


 


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(b) Dispositions of inventory in the ordinary course of business;



(c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;



(d) Dispositions of property by any Subsidiary to CSI, the Borrower or to a wholly-owned
Subsidiary (other than an Excluded Subsidiary unless the Disposing Party is also an Excluded
Subsidiary); provided that if the transferor of such property is a Guarantor, the
transferee thereof must either be CSI, Borrower or any other Guarantor;




(e) Dispositions permitted by Section 8.04;



(f) Dispositions by CSI and its Subsidiaries of property pursuant to sale-leaseback
transactions, provided that the book value of all property so Disposed of shall not exceed
$10,000,000 in any fiscal year; and



(g) non-exclusive licenses of intellectual property rights in the ordinary course of business
and substantially consistent with past practice for terms not exceeding five years;



(h) subject to Section 8.08, and provided that at the time of such Disposition and
after giving effect thereto no Default or Event of Default exists or would result therefrom, any
other Disposition;



provided, however, that any Disposition pursuant to clauses (a) through
(h) above shall be for fair market value.



8.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that:



(a) so long as no Default shall have occurred and be continuing at the time of any action
described below or would result therefrom, CSI may declare and make any cash dividends or make any
other payment or distribution of cash to its shareholders on account of its capital stock;
provided that, beginning with the fiscal quarter period ending March 31, 2012 and for each
fiscal quarter period thereafter, the aggregate amount of such distributions for the four fiscal
quarter period then ended shall not exceed the greater of (i) the Permitted Distribution Amount and
(ii) the aggregate minimum amount required during such period for CSI to qualify as and maintain
its qualification as a REIT; provided further, in determining compliance with the
preceding proviso, and, in each case, notwithstanding the actual amount of cash dividends and
distributions declared and made during any of the following periods: (A) for the fiscal quarter
period ending March 31, 2012, the aggregate amount of such dividends and distributions for the
four fiscal quarter period then ended shall be deemed to be equal to the product of (x) the
sum of (1) Preferred Dividends accrued during and attributable to such fiscal quarter and (2) all
other cash dividends and distributions declared during such fiscal quarter, multiplied by (y) 4.0;
(B) for the two fiscal quarter period ending June 30, 2012, the aggregate amount of such dividends
and distributions for the four fiscal quarter period then ended shall be deemed to be equal to the
product of (x) the sum of (1) Preferred Dividends accrued during and attributable to such two
fiscal quarters and (2) all other cash dividends and distributions declared during such two fiscal
quarters, multiplied by (y) 2.0; and (C) for the three fiscal quarter period ending September 30,
2012, the aggregate amount of such dividends and distributions for the four fiscal quarter period
then ended shall be deemed to be equal to the product of (x) the sum of (1) Preferred Dividends
accrued during and attributable to such three fiscal quarters and (2) all other cash dividends and
distributions declared during such three fiscal quarters, multiplied by (y) 1.33;


 


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(b) so long as no Default shall have occurred and be continuing at the time of any action
described below or would result therefrom, each Subsidiary may make Restricted Payments to
Borrower, Guarantors and any other Person that owns an Equity Interest in such Subsidiary, ratably
according to their respective holdings of the type of Equity Interest in respect of which such
Restricted Payment is being made;



(c) so long as no Default shall have occurred and be continuing at the time of any action
described below or would result therefrom, Borrower and each Subsidiary may purchase, redeem or
otherwise acquire Equity Interests issued by it with the proceeds received from the substantially
concurrent issue of new shares of its common stock or other common Equity Interests; and



(d) notwithstanding clauses (a) and (b) above, CSI may, during any relevant
period, make cash distributions to its shareholders in the minimum amount required during such
period for CSI to qualify as and maintain its qualification as a REIT; provided,
however, that notwithstanding the foregoing, if (i) an Event of Default under Section
9.01(a), (f) or (g)(1) shall have occurred and be continuing, or (ii) any other
Event of Default shall have occurred and as a result thereof the Obligations have been accelerated,
CSI shall not make or declare any dividends or other cash distributions.



8.07 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by CSI and its Subsidiaries on the date hereof or
any business substantially related or incidental thereto.



8.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of CSI, whether or not in the ordinary course of business, other than on fair and reasonable terms
substantially as favorable to CSI or such Subsidiary as would be obtainable by CSI or such
Subsidiary at the time in a comparable arm’s length transaction with a Person other than an
Affiliate, provided that the foregoing restriction shall not apply to transactions between
or among Borrower and any Guarantor or between and among Guarantors.



8.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to Borrower or any Guarantor or to otherwise transfer property to Borrower
or any Guarantor, (ii) of any Subsidiary (other than an Excluded Subsidiary) or CSI to
Guarantee the Indebtedness of Borrower, (iii) of the Borrower to prepay or refinance the
Obligations hereunder or (iv) of CSI or any Subsidiary to create, incur, assume or suffer to exist
Liens on property of such Person; or (b) requires the grant of a Lien to secure an obligation of
such Person (other than an Excluded Subsidiary) if a Lien is granted to secure another obligation
of such Person.


 


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8.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.



8.11 Amendments to Organization Documents. Amend, restate, supplement or otherwise modify the
Organization Documents of CSI or any Subsidiary if such amendment, restatement, supplement or
modification could reasonably be expected to result in a Material Adverse Effect on (a) the rights
and remedies of the Lenders and Agent or (b) the ability of Borrower and the Guarantors to perform
their respective obligations under this Agreement and any other Loan Document.



ARTICLE IX.

EVENTS OF DEFAULT AND REMEDIES





9.01 Events of Default. Any of the following shall constitute an Event of Default:



(a) Non-Payment. Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii)
within three days after the same becomes due, any interest on any Loan or on any L/C Obligation, or
any fee due hereunder, or (iii) within five days after the same becomes due, any other amount
payable hereunder or under any other Loan Document; or



(b) Specific Covenants. Borrower fails to perform or observe any term, covenant or
agreement contained in any of Section 7.01, 7.02, 7.03, 7.05 (with
respect to any Loan Party), 7.10, 7.11, 7.12 or 7.17 or Article
VIII, or any Guarantor fails to perform or observe any term, covenant or agreement contained in
any Facility Guaranty; or



(c) Other Defaults. The occurrence of an Event of Default under any Mortgage which is
not cured. Any Loan Party fails to perform or observe any other covenant or agreement (not
specified in subsection (a) or (b) above) contained in any other Loan Document on
its part to be performed or observed and such failure continues for 30 days or any default or Event
of Default occurs under any other Loan Document; or



(d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of CSI, the Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material respect when made or deemed made; or


 


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(e) Cross-Default. (i) CSI, Borrower or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect any Recourse Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $25,000,000, (B) fails to make any payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect
of any Non-recourse Indebtedness or Guarantee (other than Non-recourse Indebtedness hereunder and
Non-recourse Indebtedness under Swap Contracts) having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than $50,000,000, or (C) fails to observe or
perform any other agreement or condition relating to any such Recourse or Non-recourse Indebtedness
or Guarantee having an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated credit arrangement)
of more than $25,000,000, or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which default or other event is to
cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries
of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or
to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or
an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded;
or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract as to which Borrower or
any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which Borrower or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap Termination Value owed by Borrower or
such Subsidiary as a result thereof is greater than $25,000,000; or (iii) Borrower or any
Subsidiary fails to make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in excess of $25,000,000 in the aggregate under any Swap
Contract; or



(f) Insolvency Proceedings, Etc. Any Loan Party, or any of its Subsidiaries whose
total assets comprises at least $25,000,000 of Consolidated Total Asset Value, institutes or
consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment
for the benefit of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent of such Person and
the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under
any Debtor Relief Law relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; or



(g) Inability to Pay Debts; Attachment. (i) CSI, Borrower or any Subsidiary becomes
unable or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar process is
issued or levied against all or any material part of the property of any such Person and is not
released, vacated or fully bonded within 30 days after its issue or levy; or


 


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(h) Judgments. There is entered against CSI, Borrower or any Subsidiary (i) a final
judgment or order for the payment of money in an aggregate amount exceeding $25,000,000 (to the
extent not covered by independent third-party insurance as to which the insurer does not dispute
coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case,
(A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there
is a period of 30 consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, is not in effect; or



(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of CSI or Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of $25,000,000, or (ii) CSI, Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of $25,000,000; or



(j) Invalidity of Loan Documents. Any Loan Document or any provision thereof, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force
and effect; or any Loan Party or any other Person contests in any manner the validity or
enforceability of any Loan Document or any provision thereof; or any Loan Party denies that it has
any or further liability or obligation under any Loan Document, or purports to revoke, terminate or
rescind any Loan Document or any provision thereof; or




(k) Change of Control. There occurs any Change of Control.



9.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, Agent
shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the
following actions:



(a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;



(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by Borrower;



(c) require that Borrower Cash Collateralize the L/C Obligations (in an amount equal to the
then Outstanding Amount thereof); and



(d) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents;


 


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provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically
become effective, in each case without further act of Agent or any Lender.



9.03 Application of Funds. After the exercise of remedies provided for in Section
9.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 9.02), any amounts received on account of the Obligations shall, subject to the
provisions of Sections 2.16 and 2.17, be applied by Agent in the following order:




First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and disbursements of
counsel to Agent and amounts payable under Article III) payable to Agent in its
capacity as such;




Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to Lenders and the
L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer (including fees and time charges for attorneys who may be employees of
any Lender or the L/C Issuer), amounts comparable to the foregoing in respect of Secured
Cash Management Agreements and Secured Hedge Agreements and amounts payable under
Article III), ratably among them in proportion to the respective amounts described
in this clause Second payable to them;




Third, to payment of that portion of the Obligations constituting accrued and
unpaid L/C Fees and interest on the Loans, L/C Borrowings and other Obligations (excluding
Secured Cash Management Agreements and Secured Hedge Agreements), ratably among Lenders and
the L/C Issuer in proportion to the respective amounts described in this clause
Third payable to them;




Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings and Obligations arising under Secured Hedge
Agreements and Secured Cash Management Agreements, ratably among Lenders, the L/C Issuer,
the Hedge Banks and the Cash Management Banks in proportion to the respective amounts
described in this clause Fourth held by them;




Fifth, to Agent for the account of the L/C Issuer, to Cash Collateralize that
portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to
the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections
2.03 and 2.16; and




Last, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to Borrower or as otherwise required by Law.



Subject to Sections 2.03(c) and 2.17, amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the order set forth
above.


 


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Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements
and Secured Hedge Agreements shall be excluded from the application described above if the Agent
has not received written notice thereof, together with such supporting documentation as the Agent
may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash
Management Bank or Hedge Bank not a party to this Agreement that has been given the notice
contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and
accepted the appointment of the Agent pursuant to the terms of Article X hereof for itself
and its Affiliates as if a “Lender” party hereto.



ARTICLE X.

ADMINISTRATIVE AGENT




10.01 Appointment and Authorization of Administrative Agent. Each of the Lenders (including
in its capacities as a potential Hedge Bank and potential Cash Management Bank) and the L/C Issuer
hereby irrevocably appoints Bank of America to act on its behalf as Agent hereunder and under the
other Loan Documents and authorizes Agent to take such actions on its behalf and to exercise such
powers as are delegated to Agent by the terms hereof and thereof, together with such actions and
powers as are reasonably incidental thereto. The provisions of this Article are solely for the
benefit of Agent, the Lenders and the L/C Issuer, and neither Borrower nor any other Loan Party
shall have rights as a third party beneficiary of any of such provisions.



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



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



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



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


 


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



(d) Agent shall not be liable for any action taken or not taken by it (i) with the consent or
at the request of the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary, or as Agent shall believe in good faith shall be necessary, under the circumstances
as provided in Sections 9.02 and 11.01) or (ii) in the absence of its own gross
negligence or willful misconduct. Agent shall be deemed not to have knowledge of any Default
unless and until written notice describing such Default is given to Agent by Borrower, a Lender or
the L/C Issuer. Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this Agreement or any
other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to Agent.



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



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


 


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10.06 Resignation of Agent. Agent may at any time give notice of its resignation to Lenders,
the L/C Issuer and Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with Borrower, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may on behalf of Lenders and the L/C Issuer, appoint a successor Agent
meeting the qualifications set forth above; provided that if Agent shall notify Borrower
and the Lenders that no qualifying Person has accepted such appointment, then such resignation
shall nonetheless become effective in accordance with such notice and (a) the retiring Agent shall
be discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by Agent on behalf of the Lenders or the L/C
Issuer under any of the Loan Documents, the retiring Agent shall continue to hold such collateral
security until such time as a successor Agent is appointed) and (b) all payments, communications
and determinations provided to be made by, to or through Agent shall instead be made by or to each
Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor
Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as
Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by Borrower
to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed
between Borrower and such successor. After the retiring Agent’s resignation hereunder and under
the other Loan Documents, the provisions of this Article and Section 11.04 shall continue
in effect for the benefit of such retiring Agent, its sub agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.



Any resignation by Bank of America as Agent pursuant to this Section shall also constitute its
resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a successor’s appointment
as Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring
L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall
issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time
of such succession or make other arrangements satisfactory to the retiring L/C Issuer to
effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of
Credit.



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


 


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10.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Arrangers, Book Managers, Syndication Agent or Documentation Agent listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.



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



(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
Lenders, the L/C Issuer and Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of Lenders, the L/C Issuer and Agent and their respective agents and
counsel and all other amounts due Lenders, the L/C Issuer and Agent under Sections 2.03(i)
and (j), 2.09 and 11.04) allowed in such judicial proceeding; and



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



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to Agent and, in the event that Agent shall consent to the making of such payments
directly to Lenders and the L/C Issuer, to pay to Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Agent and its agents and counsel, and any
other amounts due Agent under Sections 2.09 and 11.04. Nothing contained herein
shall be deemed to authorize Agent to authorize or consent to or accept or adopt on behalf of any
Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or the L/C Issuer or to authorize Agent to
vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.



10.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize
the Agent, at its option and in its discretion,



(a) to release any Lien on any property granted to or held by the Agent for the benefit of the
Secured Parties under any Loan Document (i) upon termination of the Aggregate Commitments and
payment in full of all Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is sold or to be sold as part of or
in connection with any sale permitted hereunder or under any other Loan Document, or (iii) subject
to Section 11.01, if approved, authorized or ratified in writing by the Required Lenders;


 


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(b) to subordinate any Lien on any property granted to or held by the Agent under any Loan
Document to the holder of any Lien on such property that is permitted by Section 8.01(i);
and



(c) to release any Subsidiary Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder (ii) to release CS
Business Trust I or CS Business Trust II, respectively, from its obligations under the Guaranty if
(x) such Person ceases to be a Subsidiary of CSI and (y) the Borrower becomes a direct Subsidiary
of CSI in a transaction not prohibited by the terms hereof (unless, with respect to this clause
(y), such replacement direct owner(s) of Borrower execute a Guaranty Joinder Agreement). Upon
request by Agent at any time, each Lender and the L/C Issuer will confirm in writing Agent’s
authority to release any Guarantor from its obligations under the Guaranty pursuant to this
Section 10.10.



Upon request by the Agent at any time, the Required Lenders will confirm in writing the
Agent’s authority to release or subordinate its interest in particular types or items of property,
or to release any Guarantor from its obligations under the Guaranty pursuant to this Section
10.10.



10.11 Secured Cash Management Agreements and Secured Hedging Agreements. No Cash Management
Bank or Hedge Bank who obtains the benefit of the provisions of Section 9.03, Article
V, the Facility Guaranty or any Collateral by virtue of the provisions hereof or of the
Facility Guaranty or any Security Instrument shall have any right to notice of any action or to
consent to, direct or object to any action hereunder or under any other Loan Document or otherwise
in respect of the Collateral (including the release or impairment of any Collateral) other than in
its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan
Documents. Notwithstanding any other provision of this Article X to the contrary, the
Agent shall be required to verify the payment of, or that other satisfactory arrangements have been
made with respect to, Obligations arising under Secured Cash Management Agreements and Secured
Hedge Agreements only if the Agent has received written notice of such Obligations, together with
such supporting documentation as the Agent may request, from the applicable Cash Management Bank or
Hedge Bank, as the case may be.



ARTICLE XI.

MISCELLANEOUS




11.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by Borrower or any other Loan Party therefrom, shall
be effective unless in writing signed by the Required Lenders and Borrower or the other applicable
Loan Parties, as the case may be, and acknowledged by Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:



(a) waive any condition set forth in Section 4.01(a) or Section 11.06(d)
without the written consent of each Lender; provided, however, in the sole
discretion of Agent, only a waiver by Agent shall be required with respect to immaterial matters or
items specified in Section 4.01(a)(iii) or (iv) with respect to which Borrower has
given assurances satisfactory to Agent that such items shall be delivered promptly following the
Effective Date;



 


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(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 9.02) without the written consent of such Lender;



(c) postpone any date fixed by this Agreement or any other Loan Document for any payment
(excluding mandatory prepayments) of principal, interest, fees or other amounts due to Lenders (or
any of them) hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby;



(d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 11.01)
any fees or other amounts payable hereunder or under any other Loan Document, without the written
consent of each Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or
to waive any obligation of Borrower to pay interest or L/C Fees at the Default Rate or (ii) to
amend any financial covenant hereunder (or any defined term used therein) even if the effect of
such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce
any fee payable hereunder;



(e) change Section 2.13 or Section 9.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



(f) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;



(g) release any Guarantor from any Facility Guaranty except in accordance with the terms of
any Loan Document, without the written consent of each Lender; or



(h) release all or substantially all of the collateral in any transaction or series of related
transactions except in accordance with the terms of any Loan Document, without the written consent
of each Lender;



and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by Agent in addition to the Lenders required above, affect the rights
or duties of Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only by the parties
thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any
right to approve or disapprove any amendment, waiver or consent hereunder, except that, without the
consent of such Lender, (i) the Commitment of such Lender may not be increased or extended, (ii)
subject to Sections 2.17 and 11.13, the interest rate or fees payable to such
Lender may not be reduced, and (iii) subject to Section 2.17 and any others provisions
relating to the subordination of principal payments owed to a Defaulting Lender, the principal
amounts owed to such Lender may not be reduced.


 


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11.02 Notices; Effectiveness; Electronic Communications.



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




(i) if to Borrower, Agent, the L/C Issuer or Swing Line Lender, to the address,
telecopier number, electronic mail address or telephone number specified for such Person on
Schedule 11.02; and




(ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.



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



(b) Electronic Communications. Notices and other communications to Lenders and the
L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail
and Internet or intranet websites) pursuant to procedures approved by Agent, provided
that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to
Article II if such Lender or the L/C Issuer, as applicable has notified Agent that it is
incapable of receiving notices under such Article by electronic communication. Agent or Borrower
may, in its discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided that approval of
such procedures may be limited to particular notices or communications. Unless Agent otherwise
prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received
upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return
receipt requested” function, as available, return e-mail or other written acknowledgement),
provided that if such notice or other communication is not sent during the normal business
hours of the recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the website address
therefor.


 


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(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF BORROWER MATERIALS OR THE
ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH BORROWER
MATERIALS OR THE PLATFORM. In no event shall Agent or any of its Related Parties (collectively,
the “Agent Parties”) have any liability to Borrower, any Lender, the L/C Issuer or any
other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of Borrower’s or Agent’s transmission of Borrower Materials
through the Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment
to have resulted from the gross negligence or willful misconduct of such Agent Party;
provided, however, that in no event shall any Agent Party have any liability to
Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).



(d) Change of Address, Etc. Each of Borrower, Agent, the L/C Issuer and Swing Line
Lender may change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by notice to
Borrower, Agent, the L/C Issuer and Swing Line Lender. In addition, each Lender agrees to notify
Agent from time to time to ensure that Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each
Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at
all times have selected the “Private Side Information” or similar
designation on the content declaration screen of the Platform in order to enable such Public
Lender or its delegate, in accordance with such Public Lender’s compliance procedures and
applicable Law, including United States Federal and state securities Laws, to make reference to
Borrower Materials that are not made available through the “Public Side Information” portion of the
Platform and that may contain material non-public information with respect to the Borrower or its
securities for purposes of United States Federal or state securities laws.



(e) Reliance by Agent. L/C Issuer and Lenders. Agent, the L/C Issuer and Lenders
shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and
Swing Line Loan Notices) purportedly given by or on behalf of Borrower even if (i) such notices
were not made in a manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. Borrower shall indemnify Agent, the L/C Issuer, each Lender
and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting
from the reliance by such Person on each notice purportedly given by or on behalf of Borrower. All
telephonic notices to and other telephonic communications with Agent may be recorded by Agent, and
each of the parties hereto hereby consents to such recording.


 


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11.03 No Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer or Agent to
exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by law.




11.04 Expenses; Indemnity; Damage Waiver.



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



(b) Indemnification by Borrower. Borrower shall indemnify Agent (and any sub-agent
thereof), each Arranger, each Lender and the L/C Issuer, and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any Indemnitee) incurred
by any Indemnitee or asserted against any Indemnitee by any third party or by Borrower or any other
Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder, or the consummation of the transactions contemplated hereby or thereby or, in the case
of the Agent (and any sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed
use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for
payment under a Letter of Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN
PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by Borrower or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan Document, if Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction.


 


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(c) Reimbursement by Lenders. To the extent that Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing,
each Lender severally agrees to pay to Agent (or any such sub-agent), the L/C Issuer or such
Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against Agent (or any such
sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for Agent (or any such sub-agent) or L/C Issuer in connection with such capacity.
The obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.12(d).



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



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



(f) Survival. The agreements in this Section shall survive the resignation of Agent
and the L/C Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and
the repayment, satisfaction or discharge of all the other Obligations.


 


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11.05 Payments Set Aside. To the extent that any payment by or on behalf of Borrower is made
to Agent, the L/C Issuer or any Lender, or Agent, the L/C Issuer or any Lender exercises its right
of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any proceeding under any
Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the
L/C Issuer severally agrees to pay to Agent upon demand its applicable share (without duplication)
of any amount so recovered from or repaid by Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from
time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the termination of this
Agreement.




11.06 Successors and Assigns.



(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
Agent, the L/C Issuer and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section (and any
other attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby, the
Related Parties of each of Agent, the L/C Issuer and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.


 


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(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




(i) Minimum Amounts.




(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000
unless each of the Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent assignments
from members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met.




(ii) Proportionate Amounts. 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 with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of
Swing Line Loans.




(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:




(A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;




(B) the consent of the Agent (such consent not to be unreasonably withheld or
delayed) shall be required if such assignment is to be a Person that is not a
Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender;




(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and


 


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(D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment.




(iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Agent an Assignment and Assumption, together with a processing and
recordation fee in the amount of $3,500; provided, however, that the Agent
may, in its sole discretion, elect to waive such processing and recordation fee in the case
of any assignment. The assignee, if it is not a Lender, shall deliver to the Agent an
Administrative Questionnaire.




(v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




(vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.



(c) Register. Agent, acting solely for this purpose as an agent of Borrower, shall
maintain at Administrative Agent’s Office 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 and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and Borrower, 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 each of
Borrower and the L/C Issuer, at any reasonable time and from time to time upon reasonable prior
notice. In addition, at any time that a request for a consent for a material or substantive change
to the Loan Documents is pending, any Lender may request and receive from Agent a copy of the
Register.



Subject to acceptance and recording thereof by the Agent pursuant to subsection (c) of this
Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and
11.04 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection 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
subsection (d) of this Section.


 


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(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Agent, sell participations to any Person (other than a natural person or the
Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in
all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or
a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) the
Borrower, the Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement.



Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 11.01 that affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 11.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.13 as
though it were a Lender.



(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of Borrower, to comply with Section
3.01(e) as though it were a Lender.



(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.


 


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



(h) Deemed Consent of Borrower. If the consent of Borrower to an assignment to an
Eligible Assignee is required hereunder (including a consent to an assignment which does not meet
the minimum assignment threshold specified in clause (i) of the proviso to the first
sentence of Section 11.06(b)), Borrower shall be deemed to have given its consent five
Business Days after the date notice thereof has been delivered to Borrower by the assigning Lender
(through Agent) unless such consent is expressly refused by Borrower prior to such fifth Business
Day.



(i) Resignation as L/C Issuer or Swing Line Lender. Notwithstanding anything to the
contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans
pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’ notice to Borrower
and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to Borrower, resign as Swing
Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, Borrower
shall be entitled to appoint from among Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by Borrower to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding
as of the Effective Date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Committed Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America
resigns as Swing Line Lender, it shall retain all the rights of Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the Effective Date of
such resignation, including the right to require the Lenders to make Base Rate Committed Loans or
fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon
the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements satisfactory to Bank of America to effectively assume
the obligations of Bank of America with respect to such Letters of Credit.


 


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11.07 Treatment of Certain Information; Confidentiality. Each of Agent, Lenders and the L/C
Issuer agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b)
to the extent requested by any regulatory authority, purporting to have jurisdiction over it
(including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to Borrower and its obligations, (g) with
the consent of CSI or Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to Agent, any Lender,
the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other
than CSI or Borrower. For purposes of this Section, “Information” means all information
received from CSI or Borrower or any Subsidiary relating to CSI, Borrower or any Subsidiary or any
of their respective businesses, other than any such information that is available to Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by CSI, Borrower or any
Subsidiary, provided that, in the case of information received from CSI, Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information. Each of Agent, the Lenders and the L/C
Issuer acknowledges that (a) the Information may include material non-public information concerning
CSI, Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle such material
non-public information in accordance with applicable Law, including United States Federal and state
securities Laws.



11.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and
from time to time, after obtaining the prior written consent of the Administrative Agent, to the
fullest extent permitted by applicable law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such
Affiliate to or for the credit or the account of Borrower or any other Loan Party against any and
all of the obligations of Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the L/C Issuer or any such Affiliate,
irrespective of whether or not such Lender or the L/C Issuer shall have made any demand under this
Agreement or any other Loan Document and although such obligations of Borrower or such Loan Party
may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C
Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
Borrower and Agent promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and application.
Notwithstanding anything in any Loan Document to the contrary, at any time a property located
within the State of California, State of Washington, State of Oregon or any other state with a
“one-action” rule is indentified as a Borrowing Base Property hereunder, any set-off in violation
of this Section 11.08 shall be deemed invalid and such funds shall be deemed held in
constructive trust for the benefit of the Borrower.


 


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11.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal,
refunded to Borrower. In determining whether the interest contracted for, charged, or received by
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.



11.10 Counterparts; Integration; Effectiveness. This Agreement and the other Loan Documents
may be executed in counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement and the other Loan Documents constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement and the other Loan Documents shall become effective when they
shall have been executed by Agent and when Agent shall have received counterparts hereof that, when
taken together, bear the signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement or any other Loan Document by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement and the other Loan
Documents.



11.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by Agent and each Lender,
regardless of any investigation made by Agent or any Lender or on their behalf and notwithstanding
that Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit
Extension, and shall continue in full force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.



11.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


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11.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if Borrower is required to pay any additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting
Lender, then, in each case, Borrower may, at its sole expense and effort, upon notice to such
Lender and Agent, require such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions contained in, and consents required by, Section 11.06), all
of its interests, rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that:



(a) Borrower shall have paid to Agent the assignment fee specified in Section
11.06(b);



(b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or
Borrower (in the case of all other amounts);



(c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and




(d) such assignment does not conflict with applicable Laws.



A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require
such assignment and delegation cease to apply.




11.14 Governing Law; Jurisdiction; Etc.



(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



(b) SUBMISSION TO JURISDICTION. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK AND OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES
HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ANY
OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


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(c) WAIVER OF VENUE. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.



(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



11.15 Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



11.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower and each other Loan Party
acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the Agent and the Arrangers,
are arm’s-length commercial transactions between the Borrower and each other Loan Party and their
respective Affiliates, on the one hand, and the Agent and the Arrangers, on the other hand, (B)
each of the Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory
and tax advisors to the extent it has deemed appropriate, and (C) the Borrower and each other Loan
Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Agent and the
Arrangers each is and has been acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent
or fiduciary for the Borrower, any other Loan Party or any of their respective Affiliates or any
other Person and (B) neither the Agent nor any Arranger has any obligation to the Borrower, any
other Loan Party or any of their respective Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan
Documents and (iii) the Agent, the Arrangers and their respective Affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the Borrower, the
other Loan Parties and their respective Affiliates, and neither the Agent nor any Arranger has any
obligation to disclose any of such interests to the Borrower, any other Loan Party or any of their
respective Affiliates. To the fullest extent permitted by law, each of the Borrower and the other
Loan Parties hereby waives and releases any claims that it may have against the Agent and any
Arranger with respect to any breach or alleged breach of agency or fiduciary duty in connection
with any aspect of any transaction contemplated hereby.


 


114









 





11.17 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined)
and Agent (for itself and not on behalf of any Lender) hereby notifies 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
Borrower, which information includes the name and address of Borrower and other information that
will allow such Lender or Agent, as applicable, to identify Borrower in accordance with the Act.



11.18 Waiver of Appraisal Rights. The laws of South Carolina provide that in any real estate
foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within
thirty days after the sale of the Property apply to the court for an order of appraisal. The
statutory appraisal value as approved by the court would be substituted for the high bid and may
decrease the amount of any deficiency owing in connection with the transaction. THE BORROWER
HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE
JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE
PROPERTY.



[Signature pages follow.]



 


115









 





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	COGDELL SPENCER LP, a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	CS Business Trust I, a Maryland	 	 
	 	 	 	 	Statutory Trust, its General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By: 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	Name: 	Charles M. Handy	 	 
	 

	 	 	 	 	Title:	Chief Financial Officer and Trustee	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	COGDELL SPENCER INC., as Guarantor	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name: 	Charles M. Handy	 	 
	 

	 	 	 	Title:	Chief Financial Officer	 	 






COGDELL SPENCER LP

AMENDED AND RESTATED CREDIT AGREEMENT

Signature Page



 


 









 







	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as Administrative
Agent

 	 
	 	By:  	 	 
	 	 	Name:  	Jack Redhead 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	BANK OF AMERICA, N.A., as Swing Line

Lender, L/C Issuer and as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	Jack Redhead 	 
	 	 	Title:  	Senior Vice President 	 



COGDELL SPENCER LP

AMENDED AND RESTATED CREDIT AGREEMENT

Signature Page



 


 









 







	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	Daniel Stegemoeller 	 
	 	 	Title:  	Senior Banker 	 



COGDELL SPENCER LP

AMENDED AND RESTATED CREDIT AGREEMENT

Signature Page



 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	CITIBANK, N.A.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 






COGDELL SPENCER LP

AMENDED AND RESTATED CREDIT AGREEMENT

Signature Page



 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	BRANCH BANKING AND TRUST COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 
	 	 






COGDELL SPENCER LP

AMENDED AND RESTATED CREDIT AGREEMENT

Signature Page



 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 






COGDELL SPENCER LP

AMENDED AND RESTATED CREDIT AGREEMENT

Signature Page



 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	REGIONS BANK	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 






COGDELL SPENCER LP

AMENDED AND RESTATED CREDIT AGREEMENT

Signature Page



 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	RAYMOND JAMES BANK, FSB	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 






COGDELL SPENCER LP

AMENDED AND RESTATED CREDIT AGREEMENT

Signature Page



 


 









 








	 	 	 	 	 	 	 	 	 
	 	 	M&I MARSHALL & ILSLEY BANK	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 






COGDELL SPENCER LP

AMENDED AND RESTATED CREDIT AGREEMENT

Signature Page





 


 











 




Cogdell Spencer LP

AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of March 1, 2011




SCHEDULES




	 	 	 
	A

	 	Existing Loans
	1.01(a)

	 	Existing Borrowing Base Properties
	1.01(b)

	 	Existing Eligible Properties
	1.01(c)

	 	Existing Letters of Credit
	1.01(d)

	 	Existing Pledged Properties
	2.01

	 	Commitments and Applicable Percentages
	5A.03

	 	Collateral Information
	5A.04(a)

	 	Appraisal Requirements
	5A.04(b)

	 	Borrowing Base Properties
	6.06

	 	Litigation
	6.09

	 	Environmental Matters
	6.13

	 	Subsidiaries and Other Equity Investments
	6.20

	 	Existing Surveys
	7.17

	 	Post Closing Surveys
	8.01

	 	Existing Liens
	8.03

	 	Existing Indebtedness
	11.02

	 	Administrative Agent’s Office, Certain Addresses for Notices






EXHIBITS




	 	 	 
	Form of	 	 
	A

	 	Committed Loan Notice
	B

	 	Swing Line Loan Notice
	C-1

	 	Note
	C-2

	 	Amended and Restated Note
	D

	 	Available Amount Certificate
	E

	 	Compliance Certificate
	F

	 	Assignment and Assumption
	G

	 	Guaranty
	H

	 	Eligible Property Compliance Certificate
	I

	 	Estoppel Certificate
	J-1

	 	Subordination, Non-Disturbance and Attornment Agreement
	J-2

	 	Reaffirmation and Amendment to Subordination, Non-Disturbance and Attornment Agreement
	K

	 	Opinion of Special Counsel
	L-1

	 	Consent and Agreement Regarding Performance Under Ground Lease
	L-2

	 	Affirmation of, and Amendment to, Landlord’s Consent and Agreement Regarding Performance under Ground Lease
	M

	 	Environmental Indemnity Agreement
	N

	 	Mortgage






 


 









 







SCHEDULE A




EXISTING LOANS




	 	 	 	 	 	 	 	 	 
	 	 	Applicable	 	 	 	 
	Lender	 	Percentage	 	 	Amount	 
	 
	 	 	 	 	 	 	 	 
	Bank of America, N.A.
	 	 	21.000	%	 	$	11,550,000.00	 
	 
	 	 	 	 	 	 	 	 
	KeyBank National Association
	 	 	21.000	%	 	 	11,550,000.00	 
	 
	 	 	 	 	 	 	 	 
	Branch Banking and Trust Company
	 	 	21.000	%	 	 	11,550,000.00	 
	 
	 	 	 	 	 	 	 	 
	Wachovia Bank National Association
	 	 	21.000	%	 	 	11,550,000.00	 
	 
	 	 	 	 	 	 	 	 
	M&I Marshall & Ilsley Bank
	 	 	10.000	%	 	 	5,500,000.00	 
	 
	 	 	 	 	 	 	 	 
	Citicorp North America, Inc.
	 	 	6.000	%	 	 	3,300,000.00	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Total Existing Loans
	 	 	 	 	 	$	55,000,000.00	 
	 
	 	 	 	 	 	 	 






Schedule A






 


Page 1









 







SCHEDULE 1.01(a)




EXISTING BORROWING BASE PROPERTIES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Square	 
	Property	 	Owner of Property	 	Footage	 
	 
	 	 	 	 	 	 	 	 
	1

	 	Augusta POB I
	 	Augusta Medical Partners, LLC
	 	 	99,494	 
	2

	 	Augusta POB II
	 	Augusta Medical Partners, LLC
	 	 	125,634	 
	3

	 	Augusta POB III
	 	Augusta Medical Partners, LLC
	 	 	47,034	 
	4

	 	Augusta POB IV
	 	Augusta Medical Partners, LLC
	 	 	55,134	 
	5

	 	Birkdale Retail II
	 	Cogdell Investors (Birkdale II), LP
	 	 	8,269	 
	6

	 	East Rocky Mount Kidney Center
	 	East Rocky Mount Kidney Center
Associates, LP
	 	 	8,043	 
	7

	 	Mallard Crossing Medical Park
	 	Cogdell Investors (Mallard), LP
	 	 	52,540	 
	8

	 	Mt. Pleasant MOB
	 	Medical Investors III, LP
	 	 	38,735	 
	9

	 	Franciscan Dev ASC and MOB and Parking
	 	Franciscan Development Company, LLC
	 	 	46,907	 
	10

	 	West Medical I
	 	West Medical Office I, LP
	 	 	28,734	 
	11

	 	200 Andrews
	 	200 Andrews, LLC
	 	 	25,902	 
	12

	 	Mary Black Westside
	 	Mary Black Westside Medical Park I
Limited Partnership
	 	 	37,455	 
	13

	 	Carolina Forest Medical Plaza
	 	Carolina Forest Plaza, LLC
	 	 	38,902	 
	14

	 	Birkdale Medical Village
	 	Cogdell Investors (Birkdale), LP
	 	 	64,669	 
	15

	 	Gaston Professional Center
	 	Gaston MOB, LP
	 	 	103,787	 
	16

	 	Verdugo Professional Bldg 1
	 	Verdugo MOB, LP
	 	 	63,887	 
	17

	 	Verdugo Professional Bldg 2
	 	Verdugo MOB, LP
	 	 	42,697	 
	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Total
	 	 	887,823	 
	 

	 	 	 	 	 	 	 






Schedule 1.01(a)





 


Page 1









 







SCHEDULE 1.01(b)




EXISTING ELIGIBLE PROPERTIES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Square	 
	Property	 	Owner of Property	 	Footage	 
	 
	 	 	 	 	 	 	 	 
	1

	 	Augusta POB I
	 	Augusta Medical Partners, LLC
	 	 	99,494	 
	2

	 	Augusta POB II
	 	Augusta Medical Partners, LLC
	 	 	125,634	 
	3

	 	Augusta POB III
	 	Augusta Medical Partners, LLC
	 	 	47,034	 
	4

	 	Augusta POB IV
	 	Augusta Medical Partners, LLC
	 	 	55,134	 
	5

	 	Birkdale Retail II
	 	Cogdell Investors (Birkdale II), LP
	 	 	8,269	 
	6

	 	Copperfield MOB
	 	Copperfield MOB, LP
	 	 	61,789	 
	7

	 	East Rocky Mount Kidney Center
	 	East Rocky Mount Kidney Center
Associates, LP
	 	 	8,043	 
	8

	 	Mallard Crossing Medical Park
	 	Cogdell Investors (Mallard), LP
	 	 	52,540	 
	9

	 	Mt. Pleasant MOB
	 	Medical Investors III, LP
	 	 	38,735	 
	10

	 	Franciscan Dev ASC, MOB and Parking Deck
	 	Franciscan Development Company, LLC
	 	 	46,907	 
	11

	 	West Medical I
	 	West Medical Office I, LP
	 	 	28,734	 
	12

	 	Cabarrus POB
	 	Cabarrus POB, LP
	 	 	84,972	 
	13

	 	200 Andrews
	 	200 Andrews, LLC
	 	 	25,902	 
	14

	 	Mary Black Westside
	 	Mary Black Westside Medical Park I
Limited Partnership
	 	 	37,455	 
	15

	 	Carolina Forest Medical Plaza
	 	Carolina Forest Plaza, LLC
	 	 	38,902	 
	16

	 	Birkdale Medical Village
	 	Cogdell Investors (Birkdale), LP
	 	 	64,669	 
	17

	 	Gaston Professional Center, ASC and Parking Deck
	 	Gaston MOB, LP
	 	 	103,787	 
	18

	 	Verdugo Professional Bldg 1
	 	Verdugo MOB, LP
	 	 	63,887	 
	19

	 	Verdugo Professional Bldg 2
	 	Verdugo MOB, LP
	 	 	42,697	 
	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Total
	 	 	1,034,584	 
	 

	 	 	 	 	 	 	 






Schedule 1.01(b)





 


Page 1









 







SCHEDULE 1.01(c)




EXISTING LETTERS OF CREDIT




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicant	 	LC ID #	 	 	For Account Of	 	Beneficiary	 	Amount	 
	Cogdell Spencer LP

	 	 	3088800	 	 	Syracuse MOB, LLC
	 	Keybank National

Association
	 	$	486,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Cogdell Spencer LP

	 	 	3092388	 	 	Erdman Company (f/k/a
Marshall Erdman and
Associates)
	 	Arch Insurance

Company (Pennsylvania)
	 	 	6,500,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Cogdell Spencer LP

	 	 	3093006	 	 	Erdman Company (f/k/a
Marshall Erdman and
Associates)
	 	Arch Insurance

Company (New York)
	 	 	700,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Cogdell Spencer LP

	 	 	3095852	 	 	MEA Holdings, Inc. d/b/a
Erdman Company
	 	The Travelers Indemnity

Company
	 	 	42,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Cogdell Spencer LP

	 	 	3100397	 	 	MEA Holdings, Inc.
	 	Hartford Fire Insurance Company
	 	 	399,808.00	 
	 

	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total Existing Letters of Credit	 	 	 	 	 	$	8,127,808.00	 
	 

	 	 	 	 	 	 	 	 	 	 	 






Schedule 1.01(c)





 


Page 1









 







SCHEDULE 1.01(d)




EXISTING PLEDGED PROPERTIES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Square	 
	Property	 	Owner of Property	 	Footage	 
	 
	1

	 	Augusta POB I
	 	Augusta Medical Partners, LLC
	 	 	99,494	 
	2

	 	Augusta POB II
	 	Augusta Medical Partners, LLC
	 	 	125,634	 
	3

	 	Augusta POB III
	 	Augusta Medical Partners, LLC
	 	 	47,034	 
	4

	 	Augusta POB IV
	 	Augusta Medical Partners, LLC
	 	 	55,134	 
	5

	 	Birkdale Retail II
	 	Cogdell Investors (Birkdale II), LP
	 	 	8,269	 
	6

	 	Copperfield MOB
	 	Copperfield MOB, LP
	 	 	61,789	 
	7

	 	East Rocky Mount Kidney Center
	 	East Rocky Mount Kidney Center
Associates, LP
	 	 	8,043	 
	8

	 	Mallard Crossing Medical Park
	 	Cogdell Investors (Mallard), LP
	 	 	52,540	 
	9

	 	Mt. Pleasant MOB
	 	Medical Investors III, LP
	 	 	38,735	 
	10

	 	Franciscan Dev ASC, MOB and Parking Deck
	 	Franciscan Development Company, LLC
	 	 	46,907	 
	11

	 	West Medical I
	 	West Medical Office I, LP
	 	 	28,734	 
	12

	 	Cabarrus POB
	 	Cabarrus POB, LP
	 	 	84,972	 
	13

	 	200 Andrews
	 	200 Andrews, LLC
	 	 	25,902	 
	14

	 	Mary Black Westside
	 	Mary Black Westside Medical Park I
Limited Partnership
	 	 	37,455	 
	15

	 	Carolina Forest Medical Plaza
	 	Carolina Forest Plaza, LLC
	 	 	38,902	 
	16

	 	Birkdale Medical Village
	 	Cogdell Investors (Birkdale), LP
	 	 	64,669	 
	17

	 	Gaston Professional Center, ASC and Parking Deck
	 	Gaston MOB, LP
	 	 	103,787	 
	18

	 	
Verdugo Professional Bldg 1
	 	Verdugo MOB, LP
	 	 	63,887	 
	19

	 	Verdugo Professional Bldg 2
	 	Verdugo MOB, LP
	 	 	42,697	 
	 

	 	 	 	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	Total
	 	 	1,034,584	 
	 

	 	 	 	 	 	 	 






Schedule 1.01(d)





 


Page 1









 







SCHEDULE 2.01




COMMITMENTS AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 
	Lender	 	Commitment	 	 	Percentage	 
	Bank of America, N.A.
	 	$	35,000,000.00	 	 	 	17.500000000	%
	KeyBank National Association
	 	$	35,000,000.00	 	 	 	17.500000000	%
	Citibank, N.A.
	 	$	30,000,000.00	 	 	 	15.000000000	%
	Branch Banking and Trust Company
	 	$	30,000,000.00	 	 	 	15.000000000	%
	Wells Fargo Bank, N.A.
	 	$	30,000,000.00	 	 	 	15.000000000	%
	Regions Bank
	 	$	20,000,000.00	 	 	 	10.000000000	%
	Raymond James Bank, FSB
	 	$	10,000,000.00	 	 	 	5.000000000	%
	M&I Marshall & Ilsley Bank
	 	$	10,000,000.00	 	 	 	5.000000000	%
	 
	 	 	 	 	 	 
	Total
	 	$	200,000,000.00	 	 	 	100.000000000	%
	 
	 	 	 	 	 	 






Schedule 2.01





 


Page 1









 







SCHEDULE 5A.03




COLLATERAL INFORMATION




	 	 	 	 	 	 	 
	Legal Name	 	Physical Address	 	CEO/Contact Address	 	Tax ID #
	Cogdell Spencer LP

(Borrower)

	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	20-3648261
	200 Andrews, LLC

	 	200 Andrews Street

Greenville, SC 29601
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	56-2542172
	Augusta Medical Partners, LLC

	 	820 Sebastian Way

Augusta, GA 30901
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	56-2033434
	Cabarrus POB, LP

	 	200 Medical Park Drive

Concord, NC 28025
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	56-1949382
	Carolina Forest Plaza, LLC

	 	199 Village Center Blvd.

Myrtle Beach, SC 29579
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	75-3200838
	Cogdell Investors (Birkdale), LLC

	 	16639 Birkdale Commons Parkway

Huntersville, NC 28078
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	56-1998314
	Cogdell Investors (Birkdale II), LLC

	 	16639 Birkdale Commons Parkway

Huntersville, NC 28078
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	56-2160958
	Cogdell Investors (Mallard), LP

	 	10320 Mallard Creek Rd.

Charlotte, NC 28262
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	56-2262868
	Copperfield MOB, LP

	 	1085 NorthEast Gateway Court

Concord, NC 28025
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	30-0200695
	East Rocky Mount Kidney Center Associates, LP

	 	230 S. Fairview Rd.

Rocky Mount, NC 27801
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	56-2149090
	Franciscan Development Company, LLC

	 	1101 St. Christopher Drive

Ashland, KY 41101
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	56-2055471





Schedule 5A.03






 


Page 1










 





	 	 	 	 	 	 	 
	Legal Name	 	Physical Address	 	CEO/Contact Address	 	Tax ID #
	Gaston MOB, LP

	 	2555 Court Drive

Gastonia, NC 28054
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	56-1952401
	Mary Black Westside Medical Park I, LP

	 	2995 Reidville Rd.

Spartanburg, SC 29301
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	56-1676235
	Medical Investors III, LP

	 	570 Long Point Rd.

Charleston County, SC 29464
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	56-2183908
	West Medical Office I, LLC

	 	2145 Henry Tecklenburg Drive

Charleston, SC 29414
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	71-0911616
	Verdugo MOB, LP

	 	1808 Verdugo Blvd.

Glendale, CA 91208
	 	4401 Barclay Downs Drive, Suite 300

Charlotte, NC 28209
	 	71-1000713






Schedule 5A.03






 


Page 2











 





SCHEDULE 5A.04(a)




APPRAISAL REQUIREMENTS




Amended and Restated Credit Agreement among Cogdell Spencer LP (“Borrower”),

Bank of America, N.A., as Administrative Agent (“Agent”), and

the Lenders party thereto (“Credit Agreement”)



The following is a statement of the appraisal requirements relating to any Property which becomes
an Eligible Property and is included in the Borrowing Base. Capitalized terms used herein shall
have the meaning set forth in the Credit Agreement except that the following terms shall have the
following meanings:





“Appraisal” means a report made by a Qualified Appraiser setting forth such
Qualified Appraiser’s opinion as to the current market value (based upon modelings of the
“income approach”, the “sales approach” and the “cost approach” unless otherwise acceptable
to the Agent) of a Property and in form and content reasonably acceptable to the Agent;




“Validation” means a report by a Qualified Appraiser extending an original
Appraisal prepared by such Qualified Appraiser of an Eligible Property which validation
meets the following conditions: (i) the appraiser continues to be acceptable to the Agent,
(ii) the Property has not undergone a significant change since the original Appraisal, and
(iii) the original Appraisal is dated within three (3) years of the date of the Validation.
A Validation shall contain an opinion as to the current validity of the prior estimate of
market value for the subject property. If the Validation concludes that the prior value
conclusion is not significantly different from that set forth in the original report, then a
new appraisal is not necessary. If the Validation concludes that the prior value is
significantly different from that set forth in the original report, then a new appraisal is
necessary.



In order for a Property to become an Eligible Property the Appraisal furnished to the Agent must
meet the following requirements:





1. The Appraisal must be dated not more than six months prior to the date of delivery
to the Agent; or




2. If the Appraisal is dated earlier than six months prior to the date of delivery to
the Agent such Appraisal shall be accompanied by a Validation dated within thirty (30) days
of delivery to the Agent which Validation shall state that the then fair market value of the
Property is not significantly different from that set forth in the original Appraisal.



Schedule 5A.04(a)


 


Page 1









 





The Agent shall have the right to request (at the Borrower’s expense and subject to satisfactory
review and approval of the Agent) a new Appraisal with respect to each Borrowing Base Property once
during the initial term of the Agreement; provided, however, that a new Appraisal
may not be ordered during the six month period immediately preceding the initial Maturity Date
under the Agreement and provided, further, that at any time during the existence
and continuance of an Event of Default, a new Appraisal with respect to each Borrowing Base
Property may be requested by the Agent notwithstanding any previous new Appraisal previously having
been obtained with respect to such Property. In addition to the foregoing, if the Borrower has
requested an extension of the Maturity Date pursuant to Section 2.15, the Agent shall have
the right to request new Appraisals which meet the Appraisal Requirements.




The Borrower may request that the Agent initiate a new Appraisal with respect to any Borrowing Base
Property at any time.




All such Appraisals shall be engaged by the Agent (at the expense of the Borrower) and subject to
satisfactory review and approval of the Agent.




Schedule 5A.04(a)


 


Page 2









 





SCHEDULE 5A.04(b)




BORROWING BASE PROPERTIES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Square	 
	Property	 	Owner of Property	 	Footage	 
	1
	 	Augusta POB I	 	Augusta Medical Partners, LLC	 	 	99,494	 
	2
	 	Augusta POB II	 	Augusta Medical Partners, LLC	 	 	125,634	 
	3
	 	Augusta POB III	 	Augusta Medical Partners, LLC	 	 	47,034	 
	4
	 	Augusta POB IV	 	Augusta Medical Partners, LLC	 	 	55,134	 
	5
	 	Birkdale Retail II	 	Cogdell Investors (Birkdale II), LP	 	 	8,269	 
	6
	 	East Rocky Mount Kidney Center	 	East Rocky Mount Kidney Center Associates, LP	 	 	8,043	 
	7
	 	Mallard Crossing Medical Park	 	Cogdell Investors (Mallard), LP	 	 	52,540	 
	8
	 	Mt. Pleasant MOB	 	Medical Investors III, LP	 	 	38,735	 
	9
	 	Franciscan Dev ASC and MOB and Parking	 	Franciscan Development Company, LLC	 	 	46,907	 
	10
	 	West Medical I	 	West Medical Office I, LP	 	 	28,734	 
	11
	 	200 Andrews	 	200 Andrews, LLC	 	 	25,902	 
	12
	 	Mary Black Westside	 	Mary Black Westside Medical Park I Limited Partnership	 	 	37,455	 
	13
	 	Carolina Forest Medical Plaza	 	Carolina Forest Plaza, LLC	 	 	38,902	 
	14
	 	Birkdale Medical Village	 	Cogdell Investors (Birkdale), LP	 	 	64,669	 
	15
	 	Gaston Professional Center	 	Gaston MOB, LP	 	 	103,787	 
	16
	 	Verdugo Professional Bldg 1	 	Verdugo MOB, LP	 	 	63,887	 
	17
	 	Verdugo Professional Bldg 2	 	Verdugo MOB, LP	 	 	42,697	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	Total	 	 	887,823	 
	 
	 	 	 	 	 	 	 






Schedule 5A.04(b)


 


Page 1









 





SCHEDULE 6.06




LITIGATION




None.




Schedule 6.06


 


Page 1









 





SCHEDULE 6.09




ENVIRONMENTAL MATTERS




None.




Schedule 6.09


 


Page 1









 





SCHEDULE 6.13




SUBSIDIARIES AND OTHER

EQUITY SCHEDULE INVESTMENTS




Part (a). Subsidiaries.



Please see attached.




Part (b). Other Equity Investments.




All entities listed in Schedule 6.13, Part (a), above.


Part (c). Excluded Subsidiaries.





Anchor Cogdell, LLC

Baptist Northwest LP

Barclay Downs Associates, LP

Beaufort Medical Plaza, LLC

Bonney Lake MOB Investors, LLC

Brandon MOB Investors, LLC

Brunswick MOB, LLC

BSB Health/MOB Limited Partnership No. 2

Cabarrus Medical Partners, LP

Cogdell Duluth MOB, LLC

Cogdell Health Campus MOB, LP

Cogdell Investors (OSS), LLC

Cogdell Spencer Medical Partners, LLC

Cogdell Lancaster Rehab, LP

Cogdell Riverside Investors, LP

EA-BSB 2, L.L.C.

EA-BSD 1, L.L.C.

East Jefferson Medical Office Building LP

East Jefferson Medical Plaza, LLC

Genesis Property Holding, LLC

Good Sam MOB Investors, LLC

Hanover MOB, LLC

Healthpark MOB, LLC

HMOB Associates LP

Indianapolis MOB, LLC

Madison MOB Investors, LLC

McLeod Medical Partners, LLC

Mebane Medical Investors, LLC

Medical Investors I, LP

Medical Park Three LP



Schedule 6.13


 


Page 1









 






Mulberry Medical Park LP

Orangeburg Medical Office Building

Parkridge MOB, LLC

Peerless MOB, LLC

PMOB, LLC

River Hills Medical Associates, LLC

Rocky Mount Kidney Center Associates

Rocky Mount Medical Park LP

Rocky Mount MOB, LLC

Roper MOB, LLC

Rowan OSC Investors, LP

Shannon Health/MOB Limited Partnership No. 1

St. Francis Community MOB, LLC

St. Francis Medical Plaza, LLC

St. Cloud MOB, LLC

Syracuse MOB, LLC

Syracuse MOB SPE, LLC

Verdugo Management, LLC

West Tennessee Investors, LLC



Schedule 6.13


 


Page 2









 





SCHEDULE 6.13




SUBSIDIARIES

AND OTHER EQUITY INVESTMENTS




Part (a). Subsidiaries.




	 	 	 	 	 	 	 	 	 
	Name	 	Jurisdiction	 	Owner(s)	 	Ownership %	 
	200 Andrews, LLC
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.0000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.0000	 
	Anchor Cogdell, LLC
	 	Delaware	 	Cogdell Spencer LP	 	 	94.0000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.0000	 
	 
	 	 	 	Third Parties	 	 	5.0000	 
	Anchor Cogdell Florence, LLC
	 	Kentucky	 	Anchor Cogdell, LC	 	 	100.0000	 
	Augusta Medical Partners, LLC
	 	Georgia	 	Cogdell Spencer LP	 	 	99.4000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	0.6000	 
	Baptist Northwest, LP
	 	South Carolina	 	Cogdell Spencer LP	 	 	95.0000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	5.0000	 
	Barclay Downs Associates, LP
	 	North Carolina	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	Beaufort Medical Plaza, LLC
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	Bonney Lake MOB Investors LLC
	 	Washington	 	Cogdell Spencer LP	 	 	60.70000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	 
	 	 	 	Third Parties	 	 	38.30000	 
	Brandon MOB, LLC
	 	Mississippi	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	Brunswick MOB, LLC
	 	Georgia	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	BSG Erdman, LLC
	 	Wisconsin	 	Cogdell Spencer LP	 	 	99.00000	 
	(Holds land for potential future plant site)
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	BSB Health/MOB Limited Partnership No. 2
	 	Delaware	 	Consera Healthcare Real Estate, LLC	 	 	2.00000	 
	 
	 	 	 	Third Parties	 	 	98.00000	 
	Cabarrus Medical Partners, LP
	 	North Carolina	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	Cabarrus POB, LP
	 	North Carolina	 	Cogdell Spencer LP	 	 	99.50000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	0.50000	 







Schedule 6.13


 


Page 3









 






	 	 	 	 	 	 	 	 	 
	Name	 	Jurisdiction	 	Owner(s)	 	Ownership %	 
	Harrisburg Medical Clinic, LP
	 	North Carolina	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	Healthpark MOB, LLC
	 	Tennessee	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	HMOB Associates LP
	 	South Carolina	 	Cogdell Spencer LP	 	 	86.02100	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	13.97900	 
	Indianapolis MOB, LLC
	 	Indiana	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	JHL Associates, LLC
	 	South Carolina	 	Cogdell Spencer LP	 	 	100.00000	 
	Lexington MOB, LLC
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	Madison MOB Investors, LLC
	 	Mississippi	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	Marshall Erdman Development LLC
	 	Wisconsin	 	MEA Holdings, Inc.	 	 	100.00000	 
	Mary Black Westside Medical
Park I LP
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	McLeod Medical Partners, LLC
	 	South Carolina	 	Cogdell Spencer LP	 	 	0.65160	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	0.50760	 
	 
	 	 	 	Third Parties	 	 	98.84080	 
	MEA Holdings, Inc.
	 	Wisconsin	 	Cogdell Spencer TRS Holdings LLC	 	 	1.00000	 
	Mebane Medical Investors, LLC
	 	North Carolina	 	Cogdell Spencer LP	 	 	41.50000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	7.50000	 
	 
	 	 	 	Third Parties	 	 	51.00000	 
	Medical Investors I, LP
	 	North Carolina	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	Medical Investors III, LP
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	Medical Park Three LP
	 	South Carolina	 	Cogdell Spencer LP	 	 	93.28000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	6.72000	 
	Mulberry Medical Park LP
	 	North Carolina	 	Cogdell Spencer LP	 	 	96.50000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	3.50000	 







Schedule 6.13


 


Page 4









 





	 	 	 	 	 	 	 	 	 
	Name	 	Jurisdiction	 	Owner(s)	 	Ownership %	 
	Orangeburg Medical Office Building
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.31000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	0.69000	 
	Parkridge MOB, LLC
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	Peerless MOB, LLC
	 	Tennessee	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	PMOB, LLC
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	River Hills Medical Associates, LLC
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	Rocky Mount Kidney Center Associates
	 	North Carolina	 	Cogdell Spencer LP	 	 	96.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	4.00000	 
	Rocky Mount Medical Park LP
	 	North Carolina	 	Cogdell Spencer LP	 	 	95.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	5.00000	 
	Rocky Mount MOB, LLC
	 	North Carolina	 	Cogdell Spencer LP	 	 	33.45100	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	 
	 	 	 	Third Parties	 	 	65.54900	 
	Roper MOB, LLC
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.99000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	0.01000	 
	Rowan OSC Investors, LP
	 	North Carolina	 	Cogdell Spencer LP	 	 	99.99500	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	0.00500	 
	Shannon Health/MOB Limited
Partnership No. 1
	 	Delaware	 	Consera Healthcare Real Estate, LLC	 	 	2.00000	 
	 
	 	 	 	Third Parties	 	 	98.00000	 
	St. Cloud MOB, LLC
	 	Minnesota	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	St. Francis Community MOB, LLC
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.90000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	0.10000	 
	St. Francis Medical Plaza, LLC
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.99000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	0.01000	 







Schedule 6.13


 


Page 5









 





	 	 	 	 	 	 	 	 	 
	Name	 	Jurisdiction	 	Owner(s)	 	Ownership %	 
	St. Mary’s Investors, LLC
	 	Virginia	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	Syracuse MOB, LLC
	 	New York	 	Cogdell Spencer LP	 	 	98.00000	 
	 
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 
	 
	 	 	 	Syracuse MOB SPE, LLC	 	 	1.00000	 
	Syracuse MOB SPE, LLC
	 	Delaware	 	Cogdell Spencer LP	 	 	100.00000	 
	Verdugo Management, LLC
	 	California	 	Cogdell Spencer LP	 	 	100.00000	 
	Verdugo MOB, LP
	 	California	 	Cogdell Spencer LP	 	 	99.00000	 
	 
	 	 	 	Verdugo Management, LLC	 	 	1.00000	 
	West Medical Office I, LP
	 	South Carolina	 	Cogdell Spencer LP	 	 	99.93900	 
	 
	 	 	 	Cogdell Spencer Advisors	 	 	0.06100	 
	West Tennessee Investors, LLC
	 	Tennessee	 	Cogdell Spencer LP	 	 	99.00000	 
	(Future JV)
	 	 	 	Cogdell Spencer Advisors Management, LLC	 	 	1.00000	 







Schedule 6.13


 


Page 6









 





SCHEDULE 6.20




EXISTING SURVEYS




	 	 	 	 	 
	Owner	 	Date of Survey	 	Address
	Verdugo MOB, LP
	 	12/30/05	 	1808 & 1818 Verdugo
	 
	 	 	 	Boulevard, Glendale, CA
	Cogdell Investors (Birkdale), LP
	 	05/29/09	 	16623, 16627, 16633 & 16645
	 
	 	 	 	Birkdale Commons Parkway
	 
	 	 	 	Huntersville, NC
	Cogdell Investors (Birkdale II), LP
	 	09/07/01	 	16639 Birkdale Commons
	 
	 	 	 	Parkway, Huntersville, NC
	Cogdell Investors (Mallard), LP
	 	01/29/98	 	10310 & 10320 Mallard Creek
	 
	 	 	 	Charlotte, NC
	Copperfield MOB, LP
	 	02/25/04	 	1085 N.E. Gateway Court, N.E.
	 
	 	 	 	Concord, NC
	Mary Black Westside Medical Park I
	 	08/02/06	 	2995 Reidville Road
	Limited Partnership
	 	 	 	Spartanburg, SC
	Carolina Forest Plaza, LLC
	 	10/29/07	 	199 Village Center Boulevard
	 
	 	 	 	Myrtle Beach, SC







Schedule 6.20



 


Page 1









 





SCHEDULE 7.17




POST CLOSING SURVEYS




	 	 	 	 	 	 	 	 	 
	Owner	 	Estate	 	County	 	State	 	Address
	Augusta Medical Partners, LLC
	 	Fee	 	Richmond	 	GA	 	820 St. Sebastian Way
	 
	 	 	 	 	 	 	 	818 St. Sebastian Way
	 
	 	 	 	 	 	 	 	811 12th Street, and
	 
	 	 	 	 	 	 	 	1303 D’Antignac Street,
	 
	 	 	 	 	 	 	 	Augusta, GA
	Franciscan Development
	 	Ground Lease	 	Greenup	 	KY	 	1101 St. Christopher Drive and
	Company, LLC
	 	 	 	 	 	 	 	1102 St. Christopher Drive,
	 
	 	 	 	 	 	 	 	Ashland, KY
	Gaston MOB, LP
	 	Space Lease	 	Gaston	 	NC	 	2555 Court Drive,
	 
	 	 	 	 	 	 	 	Gastonia, NC







Schedule 7.17



 


Page 1











 




SCHEDULE 8.01




EXISTING LIENS




1) UCC Financing Statements




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	State and	 	 	 	 	 	 
	Debtor	 	Secured Party	 	County	 	File Number	 	File Date	 	Description
	Baptist Northwest LP

(Baptist Northwest Medical Park)

	 	Woodman of the World (Servicer)
	 	Lexington County SC
	 	2001004528, as continued by 2006005365
	 	1/30/01
	 	Equipment, accounts, fixtures and general intangibles
	Barclay Downs Associates, LP

	 	NCBT, NA
	 	NC
	 	20090092158H
	 	12/9/09
	 	Equipment, accounts, fixtures and general intangibles
	Bonney Lake MOB Investors LLC

	 	Bank of the West
	 	WA
	 	201021661915
	 	8/2/10
	 	Equipment, accounts, fixtures and general intangibles
	Bonney Lake MOB Investors LLC

	 	Bank of the West
	 	Pierce County, WA
	 	201007300587
	 	7/30/10
	 	DEED OF TRUST
	Brandon MOB Investors, LLC

	 	BankCorpSouth
	 	MS
	 	20090088250F
	 	5/11/09
	 	Equipment, accounts, fixtures and general intangibles
	Brunswick MOB, LLC

	 	Principal Commercial Funding, LLC
	 	GA
	 	63-2007-1881, as assigned by 63-2008-1566 and 63-2008-1734
	 	3/11/08
	 	Equipment, accounts, fixtures and general intangibles
	Brunswick MOB, LLC

	 	Principal Commercial Funding, LLC
	 	Glynn County, GA
	 	Book 2294, Page 224, as assigned by Book 2403, Page 136 and Book 2473, Page 231
	 	8/20/07
	 	Equipment, accounts, fixtures and general intangibles
	Cogdell Investors (OSS), LP

	 	Regions Bank
	 	NC
	 	20100092383K
	 	11/30/10
	 	Equipment, accounts, fixtures and general intangibles
	Cogdell Investors (OSS), LP

	 	Regions Bank
	 	Greenville County, NC
	 	F1 2010-1616
	 	11/29/10
	 	Equipment, accounts, fixtures and general intangibles
	Cogdell Lancaster Rehab, LP

	 	Manufacturers and Traders Trust Co.
	 	PA
	 	2009122905322
	 	12/28/09
	 	Equipment, accounts, fixtures and general intangibles
	Cabarrus Medical Partners, LP (Cabarrus Pediatrics, Copperfield Medical Mall, Harrisburg Medical Mall, Midland Medical Mall and Weddington Internal & Pediatric Medicine)

	 	First Citizens
	 	NC
	 	20040119075M
	 	12/10/04
	 	Equipment, accounts, fixtures and general intangibles





Schedule 8.01



 


 Page 1









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	State and	 	 	 	 	 	 
	Debtor	 	Secured Party	 	County	 	File Number	 	File Date	 	Description
	Cabarrus Medical Partners, LP (Cabarrus Pediatrics, Copperfield Medical Mall, Harrisburg Medical Mall, Midland Medical Mall and Weddington Internal & Pediatric Medicine)

	 	First Citizens
	 	Cabarrus County NC
	 	Book 5697, Page 140
	 	12/10/04
	 	Equipment, accounts, fixtures and general intangibles
	Cogdell Investors (Birkdale), LLC (Birkdale Medical Village)

	 	Bank of America (Servicer)
	 	NC
	 	19980065772, as assigned by 20000099474, as continued and amended by 200308442008
	 	9/15/98
	 	Equipment, accounts, fixtures and general intangibles
	Cogdell Investors (Birkdale), LLC (Birkdale Medical Village)

	 	Bank of America (Servicer)
	 	Mecklenburg County NC
	 	98-12923, as assigned by 283770, as continued by Book 16101, Page 934
	 	9/14/98
	 	Equipment, accounts, fixtures and general intangibles
	East Jefferson Medical Office Building Limited Partnership

	 	CW Capital LLC
	 	LA
	 	26282546, as assigned by 26285833, as continued by 26305990
	 	7/20/04
	 	Equipment, accounts, fixtures and general intangibles
	East Jefferson Medical Office Building Limited Partnership

	 	CW Capital LLC
	 	LA
	 	26282547, as assigned by 26305991, as continued by 26305992
	 	7/20/04
	 	Equipment, accounts, fixtures and general intangibles
	East Jefferson Medical Office Building Limited Partnership

	 	CW Capital, LLC
	 	LA
	 	26316642
	 	1/31/11
	 	Equipment, accounts, fixtures and general intangibles
	East Jefferson Medical Office Building Limited Partnership

	 	CW Capital, LLC
	 	LA
	 	26316643
	 	1/31/11
	 	Equipment, accounts, fixtures and general intangibles
	East Jefferson Medical Plaza, LLC

	 	Bank of America, N.A.
	 	LA
	 	26305149
	 	12/23/08
	 	Equipment, accounts, fixtures and general intangibles
	Genesis Property Holding, LLC

	 	Compass Bank
	 	FL
	 	200809298617
	 	10/6/08
	 	Equipment, accounts, fixtures and general intangibles
	Genesis Property Holding, LLC

	 	Compass Bank
	 	Escambia County, FL
	 	Book 6382, Page 1043
	 	10/2/08
	 	Equipment, accounts, fixtures and general intangibles
	Good Sam MOB Investors, LLC

	 	First-Citizens Bank & Trust Company
	 	WA
	 	201017666931
	 	6/25/10
	 	Equipment, accounts, fixtures and general intangibles
	Good Sam MOB Investors, LLC

	 	First Citizens Bank & Trust Company
	 	Pierce County, WA
	 	201006220449
	 	6/22/10
	 	DEED OF TRUST






Schedule 8.01




 


Page 2









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	State and	 	 	 	 	 	 
	Debtor	 	Secured Party	 	County	 	File Number	 	File Date	 	Description
	Hanover MOB, LLC

	 	Aviva Life and Annuity Company
	 	VA
	 	0910307103-7
	 	10/30/09
	 	Equipment, accounts, fixtures and general intangibles
	Hanover MOB, LLC

	 	Aviva Life and Annuity Company
	 	Hanover County, VA
	 	09-0049
	 	10/29/09
	 	Equipment, accounts, fixtures and general intangibles
	Health Park MOB, LLC

	 	Aviva Life and Annuity Company
	 	TN
	 	209055826
	 	11/10/09
	 	Equipment, accounts, fixtures and general intangibles
	Health Park MOB, LLC

	 	Aviva Life and Annuity Company
	 	Hamilton County, TN
	 	Book G19053, Page 355
	 	11/9/09
	 	Equipment, accounts, fixtures and general intangibles
	HMOB Associates, LP

(One Medical Park)

	 	Woodman of the World (Servicer)
	 	SC
	 	031022-1539343
	 	10/22/03
	 	Equipment, accounts, fixtures and general intangibles
	HMOB Associates, LP

(One Medical Park)

	 	Woodman of the World (Servicer)
	 	Richland County SC
	 	Book 00866-1306
	 	10/22/03
	 	Equipment, accounts, fixtures and general intangibles
	Indianapolis MOB, LLC

(Methodist Professional Center)

	 	Bank of America, N.A.
	 	IN
	 	200600010294529
	 	11/1/06
	 	Equipment, accounts, fixtures and general intangibles
	Indianapolis MOB, LLC

(Methodist Professional Center)

	 	Bank of America, N.A.
	 	Marion County IN
	 	002734
	 	11/2/06
	 	Equipment, accounts, fixtures and general intangibles
	Medical Investors I, LP

	 	Wachovia Bank NA
	 	Mecklenburg County NC
	 	Book 23476, Page 185
	 	3/7/08
	 	Equipment, accounts, fixtures and general intangibles
	Medical Park Three Limited Partnership

(Three Medical Park)

	 	Wachovia Securities (Servicer)
	 	SC
	 	040325-1419309, as assigned by 060406-1357155
	 	3/25/04
	 	Equipment, accounts, fixtures and general intangibles
	Medical Park Three Limited Partnership

(Three Medical Park)

	 	Wachovia Securities (Servicer)
	 	Richland County SC
	 	Book 00916-0397, as assigned by Book 1173, Page 1882
	 	3/25/04
	 	Equipment, accounts, fixtures and general intangibles
	Mulberry Medical Park LP

(Mulberry Medical Park)

	 	First Citizens
	 	NC
	 	19990101039, as continued by 20040077971J
	 	12/29/99
	 	Equipment, accounts, fixtures and general intangibles
	Parkridge MOB, LLC

(Parkridge Medical Office Building)

	 	Principal Commercial Funding, LLC
	 	SC
	 	070521-1034032
	 	5/21/07
	 	Equipment, accounts, fixtures and general intangibles






Schedule 8.01




 


Page 3









 








	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	State and	 	 	 	 	 	 
	Debtor	 	Secured Party	 	County	 	File Number	 	File Date	 	Description
	Parkridge MOB, LLC

(Parkridge Medical Office Building)

	 	Principal Commercial Funding, LLC
	 	Richland County SC
	 	Book 1314, Page 2694
	 	5/17/07
	 	Equipment, accounts, fixtures and general intangibles
	Peerless MOB, LLC

(Peerless Crossing Medical Center)

	 	SunTrust Bank
	 	TN
	 	306152830, as amended by 308-014733
	 	2/20/08 (amendment)
	 	Equipment, accounts, fixtures and general intangibles
	Peerless MOB, LLC

(Peerless Crossing Medical Center)

	 	SunTrust Bank
	 	Bradley County TN
	 	Book 1673, Page 70, as amended by Book 1804, Page 98
	 	12/28/07 (amendment)
	 	Equipment, accounts, fixtures and general intangibles
	PMOB, LLC

(Providence MOB I, II and III)

	 	Laureate Capital (Servicer)
	 	Richland County SC
	 	Book 00738, Page 0015, as continued by Book 1327, Page 446
	 	12/19/02
	 	Equipment, accounts, fixtures and general intangibles
	River Hills Medical Associates, LLC

(River Hills Medical Plaza)

	 	Bank of America
	 	SC
	 	060614-0844393
	 	6/14/06
	 	Equipment, accounts, fixtures and general intangibles
	River Hills Medical Associates, LLC

(River Hills Medical Plaza)

	 	Bank of America
	 	Horry County SC
	 	98-018795, as continued by Book 4539, Page 480, as amended by Book 4539, Page 486
	 	12/4/98
	 	Equipment, accounts, fixtures and general intangibles
	River Hills Medical Associates, LLC

(River Hills Medical Plaza)

	 	Bank of America
	 	Horry County SC
	 	Book 4594, Page 1016
	 	6/28/06
	 	Equipment, accounts, fixtures and general intangibles
	Rocky Mount Medical Park 

Limited Partnership

	 	Regions Bank
	 	NC
	 	20100083942M
	 	10/26/10
	 	Equipment, accounts, fixtures and general intangibles
	Rocky Mount Medical Park Limited Partnership

	 	Regions Bank
	 	Nash County, NC
	 	Book 2534, Page 727
	 	10/25/10
	 	Equipment, accounts, fixtures and general intangibles
	Roper MOB, LLC

	 	American Investors Life Insurance Company, Inc.
	 	SC
	 	090515-1201302
	 	5/15/09
	 	Equipment, accounts, fixtures and general intangibles
	Roper MOB, LLC

	 	American Investors Life Insurance Company, Inc.
	 	Charleston County, SC
	 	2009-10059
	 	5/14/09
	 	Equipment, accounts, fixtures and general intangibles
	Rowan OSC Investors, LP

(Rowan Outpatient Surgery Center)

	 	Farmers & Merchants Bank
	 	NC
	 	20040068562E, as amended by 20050105456K, as further amended by 20060048645G
	 	7/08/04
	 	Equipment, accounts, fixtures and general intangibles
	Rowan OSC Investors, LP

(Rowan Outpatient Surgery Center)

	 	Farmers & Merchants Bank
	 	Rowan County NC
	 	Book 1012, Page 170, as amended by Book 1050, Page 110, and further amended by Book 1065, Page 547
	 	7/8/04
	 	Equipment, accounts, fixtures and general intangibles





Schedule 8.01




 


Page 4









 








	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	State and	 	 	 	 	 	 
	Debtor	 	Secured Party	 	County	 	File Number	 	File Date	 	Description
	St. Cloud MOB, LLC

	 	Associated Bank, N.A.
	 	MN
	 	200916236033
	 	5/28/09
	 	Equipment, accounts, fixtures and general intangibles
	St. Francis Community MOB, LLC 

(St. Francis Community Medical Office Building/St. Francis MOB)

	 	Wachovia Bank NA
	 	SC
	 	000814-104949A, as amended by 050429-1010142, as continued by 050502-1040091
	 	8/10/00
	 	Equipment, accounts, fixtures and general intangibles
	St. Francis Community MOB, LLC 

(St. Francis Community Medical Office Building/St. Francis MOB)

	 	Wachovia Bank NA
	 	SC
	 	00814-105015A, as amended by 050429-1010471, as continued by 050502-1038406
	 	8/10/00
	 	Equipment, accounts, fixtures and general intangibles
	St. Francis Medical Plaza, LLC 

(St. Francis Medical Plaza/St. Francis Women’s Center)

	 	Wachovia Bank NA
	 	Greenville County SC
	 	Book 1997, Page 3581, as continued by Book 2002, Page 199, as continued by Book 2007, Page 1087
	 	9/24/97
	 	Equipment, accounts, fixtures and general intangibles
	St. Francis Medical Plaza, LLC

(St. Francis Medical Plaza/St. Francis Women’s Center)

	 	Wachovia Bank NA
	 	Greenville County SC
	 	Book 1997, Page 3583, as continued by Book 2002, Page 214, as continued by Book 2007, Page 968
	 	9/24/97
	 	Equipment, accounts, fixtures and general intangibles
	Syracuse MOB, LLC

(Central NY Medical Center)

	 	KeyBank National Association
	 	NY
	 	200707100568495
	 	7/10/07
	 	Equipment, accounts, fixtures and general intangibles
	Syracuse MOB, LLC

(Central NY Medical Center)

	 	KeyBank National Association
	 	Onondaga County NY
	 	00573
	 	6/29/07
	 	Equipment, accounts, fixtures and general intangibles
	West Tennessee Investors, LLC

	 	BankCorpSouth Bank
	 	TN
	 	110037950
	 	9/7/10
	 	Bank account, together with the proceeds thereof and any interest and/or income thereon.
	West Tennessee Investors, LLC

	 	BankCorpSouth Bank
	 	TN
	 	309011004
	 	3/11/09
	 	Equipment, accounts, fixtures and general intangibles
	West Tennessee Investors, LLC

	 	BankCorpSouth Bank
	 	Madison County, TN
	 	Book T1852, Page 353
	 	2/26/09
	 	Equipment, accounts, fixtures and general intangibles









Schedule 8.01





 


Page 5











 




Consolidated Joint Venture Properties




	 	 	 	 	 	 	 	 	 	 	 
	Debtor	 	Secured Party	 	State and County	 	File Number	 	File Date	 	Description
	Mebane Medical Investors, LLC

	 	Bank of America
	 	NC
	 	20070053063G
	 	5/31/07
	 	Equipment, accounts, fixtures and general intangibles
	Rocky Mount MOB, LLC

	 	Southern Bank & Trust Company
	 	NC
	 	20010059179, as continued
by 20060053453K
	 	6/22/01
	 	Equipment,
accounts, fixtures
and general
intangibles
	Rocky Mount MOB, LLC

	 	Southern Bank & Trust Company
	 	Nash County NC
	 	Book 2117, Page 441
	 	02/10/05
	 	Equipment,
accounts, fixtures
and general
intangibles
	Rocky Mount MOB, LLC

	 	Southern Bank & Trust Company
	 	Nash County NC
	 	Book 2237, Page 13
	 	6/13/06
	 	Equipment,
accounts, fixtures
and general
intangibles
	Cogdell Health Campus MOB, LP

	 	Manufacturers & Traders Trust Company
	 	PA
	 	200732202420
	 	3/13/07
	 	Equipment,
accounts, fixtures
and general
intangibles
	Cogdell Health Campus MOB, LP

	 	Manufacturers & Traders Trust Company
	 	PA
	 	2007032202595
	 	3/13/07
	 	Equipment,
accounts, fixtures
and general
intangibles
	Cogdell Health Campus MOB, LP

	 	Manufacturers & Traders Trust Company
	 	PA
	 	2007032205692
	 	3/14/07
	 	Equipment,
accounts, fixtures
and general
intangibles
	Cogdell Health Campus MOB, LP

	 	Manufacturers & Traders Trust Company
	 	Lancaster County PA
	 	5601312
	 	3/12/07
	 	Equipment,
accounts, fixtures
and general
intangibles






Schedule 8.01




 


Page 6









 







2) Mortgages/ Other Liens




	 	 	 	 	 	 	 	 	 	 	 
	Debtor	 	Secured Party	 	State	 	Loan Number	 	Maturity Date	 	Description
	Barclay Downs Associates, LP 

(Barclay Downs)

	 	First Citizens Bank
	 	NC
	 	1660711
	 	11/15/2012
	 	Secured mortgage
	Beaufort Medical Plaza, LLC 
(Beaufort Medical Plaza)

	 	Wachovia Bank NA
	 	SC
	 	41-05-8069622-8
	 	8/18/2011
	 	Secured mortgage
	Brandon MOB Investors, LLC 
 (University Physicians — Grants Ferry)

	 	Bancorpsouth Bank
	 	MS
	 	00888000700804
	 	4/20/2019
	 	Secured Mortgage
	Brunswick MOB, LLC 
(Summit Professional Center I & II)

	 	Principal Commercial Funding, LLC
	 	GA
	 	756188
	 	9/1/2017
	 	Secured mortgage
	Cabarrus Medical Partners, LP 
 (CabarrusPediatrics,Copperfield
Medical Mall, Harrisburg Medical Mall, Midland Medical Mall and
Weddington Internal & Pediatric Medicine)

	 	First Citizens
	 	NC
	 	1560192
	 	12/15/2014
	 	Secured mortgage
	Cogdell Investors (OSS), LLC
 (St. Francis Outpatient Surgery Center)

	 	Regions Bank
	 	SC
	 	0000281949
	 	11/28/2011
	 	Secured Mortgage
	Cogdell Lancaster Rehab, LP 
 (Lancaster Rehabilitation Hospital)

	 	M&T Bank
	 	PA
	 	000-00-0001-8 
&
000-00-0003-4
	 	6/26/2014
	 	Secured Mortgage
	East Jefferson Medical Office Building LP

(East Jefferson Medical Office Building)

	 	CW Capital (Servicer)
	 	LA
	 	3006
	 	8/10/2014
	 	Secured mortgage
	East Jefferson Medical Plaza, LLC 

(East Jefferson Medical Plaza)

	 	Bank of America
	 	LA
	 	008827604
	 	1/31/2012
	 	Secured Mortgage
	Hanover MOB, LLC

(Hanover Medical Office Building)

	 	Aviva Life/Medalist Capital
	 	VA
	 	20098875
	 	11/1/2014
	 	Secured mortgage
	Healthpark MOB, LLC

(Healthpark Medical Office Building)

	 	Aviva Life/Medalist Capital
	 	TN
	 	20098876
	 	12/1/2019
	 	Secured mortgage
	HMOB Associates LP 
 (One Medical Park)

	 	Woodman of the World (Servicer)
	 	SC
	 	00813A
	 	11/1/2013
	 	Secured mortgage
	Indianapolis MOB, LLC 

(Methodist Professional Center)

	 	Bank of America, N.A.
	 	IN
	 	007112107
	 	10/31/2011
	 	Secured mortgage
	Medical Arts Center of Orangeburg 

(Medical Arts of Orangeburg)

	 	South Carolina Bank & Trust
	 	SC
	 	10926608
	 	5/5/2014
	 	Secured mortgage
	Medical Investors I, LP

(Harrisburg Family Physicians Building Lincoln/Lakemont Family Practice
Center, Northcross Family Medical Practice Building and Randolph
Medical Park)

	 	First Citizens Bank
	 	NC
	 	1978766
	 	10/15/2014
	 	Secured mortgage






Schedule 8.01




 


Page 7









 





	 	 	 	 	 	 	 	 	 	 	 
	Debtor	 	Secured Party	 	State	 	Loan Number	 	Maturity Date	 	Description
	Medical Park Three LP 
 (Three Medical Park)

	 	Archon Financial/Wachovia Securities (Servicer)
	 	SC
	 	73-9000066
	 	4/1/2014
	 	Secured mortgage
	Mulberry Medical Park LP

(Mulberry Medical Park)

	 	First Citizens
	 	NC
	 	1018142
	 	9/15/2011
	 	Secured mortgage
	Parkridge MOB, LLC

(Parkridge Medical Office Building)

	 	Principal Commercial Funding, LLC
	 	SC
	 	755736
	 	6/1/2017
	 	Secured mortgage
	Peerless MOB, LLC 

(Peerless Crossing Medical Center)

	 	SunTrust Bank/Midland Loan Services
	 	TN
	 	30267109
	 	9/1/2016
	 	Secured mortgage
	PMOB, LLC

(Providence MOB I, II and III)

	 	Variable Annuity Life/Grandbridge
	 	SC
	 	718001419
	 	1/1/2013
	 	Secured mortgage
	River Hills Medical Associates, LLC 

(River Hills Medical Plaza)

	 	Bank of America
	 	SC
	 	006319574
	 	12/22/2011
	 	Secured mortgage
	Rocky Mount Kidney Center Associates 

(Rocky Mount Kidney Center)

	 	Southern Bank & Trust Company
	 	NC
	 	205062/777051
	 	8/21/2014
	 	Secured mortgage
	Rocky Mount Medical Park LP

(Rocky Mount Medical Park)

	 	Regions Bank
	 	NC
	 	277913
	 	10/22/2014
	 	Secured mortgage
	Roper MOB, LLC 

(Roper MOB)

	 	Aviva Life/Medalist Capital
	 	SC
	 	20098841
	 	6/1/2019
	 	unknown
	Rowan OSC Investors, LP

(Rowan ASC)

	 	Farmers & Merchants Bank
	 	NC
	 	234354
	 	7/6/14
	 	Secured mortgage
	St. Cloud MOB, LLC 

(HealthPartners Medical and Dental Clinics)

	 	Associated Bank
	 	MN
	 	87509120002
	 	11/1/2014
	 	Secured Mortgage
	St. Francis Community MOB, LLC

(St. Francis Community Medical Office Building/St. Francis MOB)

	 	Wachovia Bank NA
	 	SC
	 	41-84-8656042-2
	 	6/15/2011
	 	Secured mortgage
	St. Francis Medical Plaza, LLC 

(St. Francis Medical Plaza/St. Francis Women’s Center)

	 	Wachovia Bank NA
	 	SC
	 	41-84-8763678-3
	 	6/15/2011
	 	Secured mortgage
	Syracuse MOB, LLC 

(Central NY Medical Center)

	 	KeyBank National Association
	 	NY
	 	10037423
	 	7/1/2017
	 	Secured mortgage
	West Tennessee Investors, LLC 

(Medical Center Physicians Tower)

	 	Bancorpsouth Bank
	 	TN
	 	00102000691783
	 	3/1/2019
	 	Secured Mortgage






Schedule 8.01




 


Page 8









 





Consolidated Joint Venture Properties




	 	 	 	 	 	 	 	 	 	 	 
	Debtor	 	Secured Party	 	State	 	Loan Number	 	Maturity Date	 	Description
	Bonney Lake MOB Investors,
LLC 
(Bonney Lake Medical
Office Building)

	 	Bank of the West
	 	WA
	 	10-6016366-0 Ln 2-6
	 	2/5/2012
	 	Secured Mortgage

	Cogdell Health Campus MOB, LP

(Lancaster ASC MOB)

	 	M&T Bank
	 	PA
	 	000-0000-0026
	 	3/2/2015
	 	Secured mortgage
	Genesis Property Holdings,
LLC 
(Woodlands Center for
Specialized Medicine)

	 	Compass Bank
	 	TX
	 	42
	 	10/1/2018
	 	Secured Mortgage
	Good Sam MOB Investors, LLC

	 	First Citizens Bank
	 	WA
	 	2413763
	 	6/30/2015
	 	Secured Mortgage
	Mebane Medical Investors, LLC

(Primary Mortgage)

	 	Bank of America
	 	NC
	 	007587268
	 	5/15/2011
	 	Construction loan
	Mebane Medical Investors, LLC

(Mebane Medical Park Cancer
Center)

	 	Bank of America
	 	NC
	 	009231008
	 	5/15/2011
	 	Secured Mortgage
	Rocky Mount MOB, LLC 

(2 loans)

	 	Southern Bank and Trust Co.
	 	NC
	 	0000304634
	 	3/1/2012
	 	Secured mortgage






Schedule 8.01





 


Page 9











 




SCHEDULE 8.03




EXISTING INDEBTEDNESS




	 	 	 	 	 	 	 
	 	 	 	 	Amount of Debt	 
	 	 	 	 	at December 31,	 
	Entity Name	 	Property Name	 	2010	 
	 
	 	 	 	 	 	 
	Wholly Owned Properties:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Barclay Downs Associates, LP
	 	Barclay Downs	 	$	4,278,315	 
	Beaufort Medical Plaza, LLC
	 	Beaufort Medical Plaza	 	$	4,636,520	 
	Brandon MOB Investors, LLC
	 	University Physicians — Grants Ferry	 	$	10,407,748	 
	Brunswick MOB, LLC
	 	Summit Professional Center I & II	 	$	15,925,000	 
	Cabarrus Medical Partners, LP
	 	Cabarrus Pediatrics, Copperfield Medical Mall, Harrisburg Medical Mall, Midland Medical Mall and Weddington Internal & Pediatric Medicine	 	$	8,017,387	 
	Cogdell Investors (OSS), LLC
	 	St. Francis Outpatient Surgery Center	 	$	13,000,000	 
	Cogdell Lancaster Rehab, LP
	 	Lancaster Rehabilitation Hospital	 	$	11,547,042	 
	East Jefferson Medical Office Building LP
	 	East Jefferson MOB	 	$	8,734,545	 
	East Jefferson Medical Plaza, LLC
	 	East Jefferson Medical Plaza	 	$	11,600,000	 
	Hanover MOB, LLC
	 	Hanover MOB	 	$	5,905,136	 
	Health Park MOB, LLC
	 	Health Park Medical Office Building	 	$	6,900,886	 
	HMOB Associates LP
	 	One Medical Park	 	$	4,852,010	 
	Indianapolis MOB, LLC
	 	Methodist Professional Center	 	$	25,249,799	 
	Medical Arts Center of Orangeburg
	 	Medical Arts of Orangeburg	 	$	2,259,485	 
	Medical Investors I, LP
	 	Lincoln/Lakemont Family Practice Center, Northcross Family Medical Practice Building and Randolph Medical Park	 	$	7,302,646	 
	Medical Park Three LP
	 	Three Medical Park	 	$	7,454,871	 
	Mulberry Medical Park LP
	 	Mulberry Medical Park	 	$	862,958	 
	Parkridge MOB, LLC
	 	Parkridge MOB	 	$	13,500,000	 
	Peerless MOB, LLC
	 	Peerless Crossing Medical Center	 	$	7,252,880	 
	PMOB, LLC
	 	Providence MOB I, II and III	 	$	8,067,254	 
	River Hills Medical Associates, LLC
	 	River Hills Medical Plaza	 	$	3,444,546	 
	Rocky Mount Kidney Center Associates
	 	Rocky Mount Kidney Center	 	$	961,873	 
	Rocky Mount Medical Park LP
	 	Rocky Mount Medical Park	 	$	10,278,890	 
	Roper MOB, LLC
	 	Roper MOB	 	$	9,281,441	 
	Rowan OSC Investors, LP
	 	Rowan ASC	 	$	3,147,504	 
	St. Cloud MOB, LLC
	 	HealthPartners Medical & Dental Clinics	 	$	12,064,890	 
	St. Francis Community MOB, LLC
	 	St. Francis Community MOB / St. Francis MOB	 	$	6,687,874	 
	St. Francis Medical Plaza, LLC
	 	St. Francis Medical Plaza / St. Francis Women’s Center	 	$	7,183,950	 
	Syracuse MOB, LLC
	 	Central NY Medical Center	 	$	24,500,000	 
	West Tennessee Investors, LLC
	 	Medical Center Physicians Tower	 	$	14,706,784	 






Schedule 8.03



 


Page 1









 





	 	 	 	 	 	 	 
	 	 	 	 	Amount of Debt	 
	 	 	 	 	at December 31,	 
	Entity Name	 	Property Name	 	2010	 
	 
	 	 	 	 	 	 
	Consolidated Joint Venture
Properties:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Bonney Lake MOB Investors, LLC
	 	Bonney Lake Medical Office Building	 	$	2,936,572	 
	Cogdell Health Campus MOB, LP
	 	Lancaster ASC MOB	 	$	10,210,387	 
	Genesis Property Holdings, LLC
	 	Woodlands Center for Specialized Medicine	 	$	16,609,834	 
	Good Sam MOB Investors, LLC
	 	Good Samaritan Medical Office Building	 	$	—                   	*
	Mebane Medical Investors, LLC
	 	Alamance Regional Mebane Outpatient Center	 	$	12,308,158	 
	Rocky Mount MOB, LLC
	 	English Road Medical Center	 	$	5,161,625	 








	 	 	 
	*	 	A construction loan is in place for Good Sam MOB Investors, LLC. However, no amounts were drawn
as of December 31, 2010. The balance at February 28, 2011 was approximately $387,000.





Schedule 8.03



 


Page 2









 







SCHEDULE 11.02




ADMINISTRATIVE AGENT’S OFFICE,

CERTAIN ADDRESSES FOR NOTICES




BORROWER AND CSI:




Cogdell Spencer LP / Cogdell Spencer Inc.

4401 Barclay Downs Drive, Suite 300

Charlotte, North Carolina 28209-4670

Attention: Raymond W. Braun, President / Charles M. Handy, Chief Financial Officer

Telephone: 704.940.2900 / 704.940.2900

Telecopier: 704.940.2957 / 704.940.2959

Electronic Mail: rbraun@cogdell.com / chandy@cogdell.com

Website Address: www.cogdell.com

U.S. Taxpayer Identification Number: 20-3648261 / 20-3126457




ADMINISTRATIVE AGENT:




Administrative Agent’s Office (for payments):

Bank of America, N.A.

Southside Center

6000 Feldwood Road

Mail Code: GA4-004-04-14

College Park, Georgia 30349-3652

Attention: Diana A. Thompson Giles

Telephone: 404.607.3080

Telecopier: 404.607.3043

Electronic Mail: diane.a.giles@baml.com




Wiring Instructions:

Bank of America, N.A.

ABA No.: 0260-0959-3

GL No.: 1366211723000

Reference: Cogdell Spencer

Loan No: Obligor #673404 / CA #1731814

Advise: Diane Giles

Telephone: 404-607-3084




Schedule 11.02



 


Page 1









 





Other Notices and Requests for Credit Extensions as Administrative Agent:

Bank of America, N.A.

Commercial Real Estate Banking

100 North Tryon Street, 11th Floor

Mailcode: NC1-007-11-15

Charlotte, North Carolina 28255

Attention: Joy Auten

Telephone: 980.386.7524

Telecopier: 980.683.9480

Electronic Mail: Joy Auten@baml.com




L/C ISSUER (Standby Letters of Credit / Commercial Letters of Credit):




Bank of America, N.A.

Trade Operations-Los Angeles

L.A. Data Center Building, Suite — Level 7

Mail Code: CA9-705-07-05

Los Angeles, California 90012-1514

Telephone: 800.541.6096




SWING LINE LENDER (for payments):


Bank of America, N.A.

Southside Center

6000 Feldwood Road

Mail Code: GA4-004-04-14

College Park, Georgia 30349-3652

Attention: Diana A. Thompson Giles

Telephone: 404.607.3080

Telecopier: 404.607.3043

Electronic Mail: diane.a.giles@baml.com




Wiring Instructions:

Bank of America, N.A.

ABA No.: 0260-0959-3

GL No.: 1366211723000

Reference: Cogdell Spencer

Loan No: Obligor #673404 / CA #1731814

Advise: Diane Giles

Telephone: 404-607-3084




Schedule 11.02



 


Page 2









 





SWING LINE LENDER (other notices):


Bank of America, N.A.

Commercial Real Estate Banking

100 North Tryon Street, 11th Floor

Mailcode: NC1-007-11-15

Charlotte, North Carolina 28255

Attention: Joy Auten

Telephone: 980.386.7524

Telecopier: 980.683.9480

Electronic Mail: Joy Auten@baml.com




Schedule 11.02




 


Page 3









 







EXHIBIT A




FORM OF COMMITTED LOAN NOTICE




Date:                     ,                     




To: Bank of America, N.A., as Agent




Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 1,
2011 (as amended, amended and restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement”; the terms defined therein being used herein as therein
defined), among Cogdell Spencer LP, a Delaware limited partnership (the “Borrower”),
Cogdell Spencer Inc., a Maryland corporation, the Lenders from time to time party thereto, and Bank
of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.




The undersigned hereby requests (select one):




	 	o	 	A Borrowing of Committed Loans

	 
	 	o	 	A conversion or continuation of Committed Loans

	 
	 	1.	 	On
 _____ (a Business Day).

	 
	 	2.	 	In the amount of $_____.

	 
	 	3.	 	Comprised of
 _____________________________________.







[Type of Committed Loan requested

(i.e., Eurodollar Rate Loan or Base Rate Loan)]




	 	4.	 	For Eurodollar Rate Loans: with an Interest Period of
 _____ months.






The Committed Borrowing, if any, requested herein complies with the provisos to the first
sentence of Section 2.01 of the Agreement.



	 	 	 	 	 
	 	COGDELL SPENCER LP, as Borrower



By: CS Business Trust I, its General Partner

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Form of Committed Loan Notice




 


A-1









 





EXHIBIT B




FORM OF SWING LINE LOAN NOTICE




Date: ___________, _____





	To:	 	 Bank of America, N.A., as Swing Line Lender

Bank of America, N.A., as Administrative Agent






Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 1,
2011 (as amended, amended and restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement”; the terms defined therein being used herein as therein
defined), among Cogdell Spencer LP, a Delaware limited partnership (the “Borrower”),
Cogdell Spencer Inc., a Maryland corporation, the Lenders from time to time party thereto, and Bank
of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.




The undersigned hereby requests a Swing Line Loan:




	 	1.	 	On
 _____ (a Business Day).

	 
	 	2.	 	In the amount of $_____.






The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.04(a) of the Agreement.



	 	 	 	 	 
	 	COGDELL SPENCER LP, as Borrower



By: CS Business Trust I, its General Partner

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Form of Swing Line Loan Notice




 


B-1









 





EXHIBIT C-1




FORM OF NOTE





			
	 	 	 
	$ _____ 

	 	March 1, 2011








FOR VALUE RECEIVED, the undersigned (“Borrower”), hereby promises to pay to

 _____ or registered assigns (“Lender”), in accordance with the provisions
of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made
by the Lender to Borrower under that certain Amended and Restated Credit Agreement, dated as of
March 1, 2011 (as amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among the Borrower, the Lenders from time to time party thereto, and Bank of America,
N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.



The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. Except as otherwise provided in Section 2.04(f) of the
Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in Dollars in immediately available funds at
the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such
unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per annum rate set forth
in the Agreement. Attorneys’ fees in connection with collections hereunder shall be payable as
provided in the Agreement.



This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Facility Guaranty and the Guaranty.
Upon the occurrence and continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Loans made by the Lender shall be
evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course
of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount
and maturity of its Loans and payments with respect thereto.



The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



Form of Note



 


C-1-1









 





THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.



	 	 	 	 	 
	 	COGDELL SPENCER LP, as Borrower



By: CS Business Trust I, its General Partner

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Form of Note




 


C-1-2









 





LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	Outstanding	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	End of	 	 	Principal or	 	 	Principal	 	 	 	 
	 	 	 	 	Type of	 	 	Amount of	 	 	Interest	 	 	Interest Paid	 	 	Balance This	 	 	Notation	 
	Date	 	 	Loan Made	 	 	Loan Made	 	 	Period	 	 	This Date	 	 	Date	 	 	Made By	 





Form of Note



 


C-1-3









 







EXHIBIT C-2




FORM OF AMENDED AND RESTATED NOTE




			
	 	 	 
	$
 _____ 

	 	March 1, 2011








FOR VALUE RECEIVED, the undersigned (“Borrower”), hereby promises to pay to

 _____ or registered assigns (“Lender”), in accordance with the provisions
of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made
by the Lender to Borrower under that certain Amended and Restated Credit Agreement, dated as of
March 1, 2011 (as amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among the Borrower, the Lenders from time to time party thereto, and Bank of America,
N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.



The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. Except as otherwise provided in Section 2.04(f) of the
Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in Dollars in immediately available funds at
the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such
unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per annum rate set forth
in the Agreement. Attorneys’ fees in connection with collections hereunder shall be payable as
provided in the Agreement.



This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is issued in replacement of a Note dated March 10, 2008, issued to the Lender
pursuant to the Existing Credit Agreement (the “Original Note”), and does not effect any
refinancing or extinguishment of the indebtedness and obligations of such Original Note and is not
a novation but is a replacement of such Original Note. This Note is also entitled to the benefits
of the Facility Guaranty and the Guaranty. Upon the occurrence and continuation of one or more of
the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note
shall become, or may be declared to be, immediately due and payable all as provided in the
Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records
maintained by the Lender in the ordinary course of business. The Lender may also attach schedules
to this Note and endorse thereon the date, amount and maturity of its Loans and payments with
respect thereto.



The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



Form of Amended and Restated Note



 


C-2-1









 





THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.



	 	 	 	 	 
	 	COGDELL SPENCER LP, as Borrower



By: CS Business Trust I, its General Partner

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Form of Amended and Restated Note




 


C-2-2









 





LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	Outstanding	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	End of	 	 	Principal or	 	 	Principal	 	 	 	 
	 	 	 	 	Type of	 	 	Amount of	 	 	Interest	 	 	Interest Paid	 	 	Balance This	 	 	Notation	 
	Date	 	 	Loan Made	 	 	Loan Made	 	 	Period	 	 	This Date	 	 	Date	 	 	Made By	 





Form of Amended and Restated Note



 


C-2-3









 





EXHIBIT D




FORM OF AVAILABLE AMOUNT CERTIFICATE




Date: __________ _____, _______





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






Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 1,
2011 (as amended, amended and restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement”; the terms defined therein being used herein as therein
defined), among Cogdell Spencer LP, a Delaware limited partnership (the “Borrower”),
Cogdell Spencer Inc., a Maryland corporation (“CSI”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.



The undersigned hereby certifies as of the date hereof that he/she is the Chief Financial
Officer of CSI, and that, as such, he/she is authorized to execute and deliver this Certificate to
Agent on the behalf of CSI, and that analyses and information in determining the Available Amount
set forth on Exhibit 1 attached hereto are true and accurate on and as of the date of this
Certificate.



IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
 _____,

 _____.



	 	 	 	 	 
	 	COGDELL SPENCER INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	Chief Financial Officer 	 



Form of Available Amount Certificate




 


D-1









 





Date: ___________________ (“Determination Date”)




EXHIBIT 1

to the Available Amount Certificate




	 	 	 	 	 
	I. Total Collateral Value.
	 	 	 	 
	 
	 	 	 	 
	A. aggregate Appraised Value of each Borrowing Base
Property that is Stabilized, as determined by a FIRREA —
compliant appraisal (from Item A of Schedule A attached
hereto):
	 	$	                    	 
	 
	 	 	 	 
	B. Such aggregate Appraised Value (Line I.A.)
times (i) if the Determination Date is before March 1,
2013, 0.70 or (ii) if the Determination Date is on or after
March 1, 2013, 0.65:
	 	$	                    	 
	 
	 	 	 	 
	C. For each Borrowing Base Property that is a Development
Property and is at least 50% pre-leased1, the GAAP
book value of each such property times 0.50
minus the Remaining Development amount, if any,
required to complete such property:2
	 	$	                    	 
	 
	 	 	 	 
	D. Total Collateral Value (Line I.B. + I.C.)
	 	$	                    	 
	 
	 	 	 	 
	II. Synthetic DSCR Principal Amount.
	 	 	 	 
	 
	 	 	 	 
	A. aggregate Net Operating Income attributable to the
Borrowing Base Properties (excluding Net Operating Income, if
any, from Development Properties) for fiscal quarter of CSI
most recently ended (from Item B of Schedule A attached
hereto):
	 	$	                    	 
	 
	 	 	 	 
	B. Capital Reserves for Borrowing Base Properties for
fiscal quarter of CSI most recently ended (from Item C of
Schedule A attached hereto):
	 	$	                    	 
	 
	 	 	 	 
	C. Mortgageable Net Operating Income (Line II.A. — Line II.B.):
	 	$	                    	 
	 
	 	 	 	 
	D. Annualized Mortgageable Net Operating Income (Line II.C. times 4):
	 	$	                    	 





 






	 	 	 
	1	 	Only include each such Property until the earlier of
(i) the one year anniversary date of project completion or (ii) the first full
fiscal quarter after such Property becomes stabilized.

	 
	2	 	In no event shall this amount constitute more than 20%
of the Total Collateral Value.





Form of Available Amount Certificate




 


D-2









 










	 	 	 	 	 
	E. Per annum yield on United States Treasury securities
having a ten year maturity as of Determination Date
plus 2.50%:
	 	 	                    	%
	 
	 	 	 	 
	F. Synthetic DSCR Interest Rate: greater of (i) 7.00%
and (ii) Line II.E.:
	 	 	                    	%
	 
	 	 	 	 
	G. Annualized aggregate debt service on 30-year loan
bearing interest (365-6/360 basis) at Synthetic DSCR Interest
Rate (Line II.F.) assuming monthly, level-debt service
payments (Line II.D.  ̧ [_____]3):
	 	$	                    	 
	 
	 	 	 	 
	H. For each Development Property that is at least 50%
pre-leased4, the aggregate GAAP book value of such
properties times 0.50:5
	 	 	 	 
	 
	 	 	 	 
	I. Synthetic DSCR Principal Amount (principal amount of
loan that would result in debt service of Line II.G. + II.H.):
	 	$	                    	 
	 
	 	 	 	 
	III. Aggregate Commitments.
	 	 	 	 
	 
	 	 	 	 
	A. Commitments of all Lenders at Determination Date:
	 	$	                    	 
	 
	 	 	 	 
	Available Amount (the least of Lines I.B., II.I. and III.A.):
	 	$	                    	 





 







	 	 	 
	3	 	If the Determination Date is before March 1, 2013,
insert 1.30. If the Determination Date is on or after March 1, 2013, insert
1.50.

	 
	4	 	Only include each such property until the earlier of
(i) the one year anniversary date of project completion or (ii) the first full
fiscal quarter after such Property becomes Stabilized.

	 
	5	 	In no event shall this amount constitute more than 20%
of the Total Collateral Value.





Form of Available Amount Certificate





 


D-3









 







Schedule A to Exhibit I




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Net Operating Income	 	 	 	 
	Borrowing Base Property	 	Appraised Value	 	 	(FQ ended ______, 20___)	 	 	Capital Reserves	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	1.                     
	 	$	                    	 	 	$	                    	 	 	$	                    	 
	2.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	3.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	4.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	5.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	6.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	7.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	8.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	9.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	10.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	11.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	12.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	13.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	14.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	15.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	16.                     
	 	 	                    	 	 	 	                    	 	 	 	                    	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	AGGREGATE
	 	$	(A	)	 	$	(B	)	 	$	(C) 	 
	 
	 	 	 	 	 	 	 	 	 






Form of Available Amount Certificate



 


D-4









 





EXHIBIT E




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date: __________ ___, _______




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









Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 1,
2011 (as amended, amended and restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement”; the terms defined therein being used herein as therein
defined), among Cogdell Spencer LP, a Delaware limited partnership (the “Borrower”),
Cogdell Spencer Inc., a Maryland corporation (“CSI”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.



The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the

 _____6 of CSI, and that, as such, he/she is authorized to execute
and deliver this Certificate to Agent on the behalf of CSI, and that:



[Use following paragraph 1 for fiscal year-end financial statements]




1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 7.01(a) of the Agreement for the fiscal year of CSI ended as of the
above date, together with the report and opinion of an independent certified public accountant
required by such section.7



[Use following paragraph 1 for fiscal quarter-end financial statements]




1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 7.01(b) of the Agreement for the fiscal quarter of CSI ended as of the above date.
Such financial statements fairly present the financial condition, results of operations and cash
flows of CSI and its Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of footnotes.8



2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of CSI and its Subsidiaries during the accounting period covered
by the attached financial statements.


 






	 	 	 
	6	 	Officer executing certificate must be chief financial
officer of CSI.

	 
	7	 	Do not include such paragraph if financial statements
have been delivered electronically in accordance with the second paragraph of
Section 7.02 of the Agreement.

	 
	8	 	Do not include such paragraph if financial statements
have been delivered electronically in accordance with the second paragraph of
Section 7.02 of the Agreement.





Form of Compliance Certificate




 


E-1









 










3. A review of the activities of CSI during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period CSI and
its Subsidiaries performed and observed all their respective Obligations under the Loan Documents,
and



[select one:]




[to the best knowledge of the undersigned during such fiscal period, each of CSI and each of its
Subsidiaries performed and observed each covenant and condition of the Loan Documents applicable to
it, and no Default has occurred and is continuing.]



—or—




[the following covenants or conditions have not been performed or observed and the following is a
list of each such Default and its nature and status:]



4. The representations and warranties of CSI and Borrower contained in Article VI of
the Agreement, and/or any representations and warranties of CSI, Borrower or any other Loan Party
that are contained in any document furnished at any time under or in connection with the Loan
Documents, are true and correct in all material respects on and as of the date hereof, except to
the extent that such representations and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects as of such earlier date, and except that
for purposes of this Compliance Certificate, the representations and warranties contained in
subsections (a) and (b) of Section 6.05 of the Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 7.01 of the Agreement, including the statements in connection with
which this Compliance Certificate is delivered.



5. The financial covenant analyses and information set forth on Schedules 1 and
2 attached hereto are true and accurate on and as of the date of this Certificate.



IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
 _____,

 _____.



	 	 	 	 	 
	 	COGDELL SPENCER INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Form of Compliance Certificate



 


E-2









 





For the Quarter/Year ended ___________________ (“Statement Date”)




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




	 	 	 	 	 
	I. Section 7.12(a) —Total Leverage Ratio.
	 	 	 	 
	 
	 	 	 	 
	A. Consolidated Total Indebtedness at Statement Date:
	 	$	                    	 
	 
	 	 	 	 
	B. Consolidated Total Asset Value at Statement Date:
	 	 	 	 
	 
	 	 	 	 
	1. cash, cash equivalents and the value of
marketable securities, in each case of the Borrower and
its Subsidiaries:
	 	$	                    	 
	 
	 	 	 	 
	2. Adjusted Property EBITDA attributable
to each Property owned by the Borrower or any
Subsidiary (other than a Development Property or
Unimproved Land) for the fiscal quarter most recently
ended (attach schedule for each Property reflecting the
following):
	 	 	 	 
	 
	 	 	 	 
	a. net income (loss):
	 	$	                    	 
	 
	 	 	 	 
	[to the extent included in determination of
such net income (loss)]:
	 	 	 	 
	 
	 	 	 	 
	i.
depreciation and amortization expense:
	 	$	                    	 
	 
	 	 	 	 
	ii. interest
expense, including capitalized interest
not funded under a construction loan
interest reserve account:
	 	$	                    	 
	 
	 	 	 	 
	iii. income tax expense:
	 	$	                    	 
	 
	 	 	 	 
	iv. extraordinary or non-recurring gains and losses:
	 	$	                    	 
	 
	 	 	 	 
	v. Lines
I.B.2.a. — I.B.2.a.i. — I.B.2.a.ii. -
I.B.2.a.iii. — I.B.2.a.iv.:
	 	$	                    	 
	 
	 	 	 	 
	b. Capital Reserves:
	 	$	                    	 
	 
	 	 	 	 
	c. Adjusted Property EBITDA
(for all Properties) for the fiscal quarter most
recently ended (Lines I.B.2.a.v. — I.B.2.b.):
	 	$	                    	 
	 
	 	 	 	 
	d. Line I.B.2.c. times 4:
	 	$	                    	 
	 
	 	 	 	 
	e. Line I.B.2.d.  ̧ 0.080:
	 	$	                    	 





Form of Compliance Certificate



 


E-3









 





	 	 	 	 	 
	3. GAAP book value of Properties acquired
during the four consecutive fiscal quarters ending on
the Statement Date (the “Subject Period”):
	 	$	                    	 
	 
	 	 	 	 
	4. GAAP book value of all Development
Properties:
	 	$	                    	 
	 
	 	 	 	 
	5. The portion of Consolidated Adjusted
EBITDA attributable to Erdman and its Subsidiaries
applied on a consistent basis for the Subject Period
times 8:9
	 	$	                    	 
	 
	 	 	 	 
	6. GAAP book value of Unimproved Land,
Mortgage Receivables and other promissory notes:
	 	$	                    	 
	 
	 	 	 	 
	7. Consolidated Total Asset Value (Lines
I.B.1. + I.B.2.e. + I.B.3. + I.B.4. + I.B.5. + I.B.6.):
	 	$	                    	 
	 
	 	 	 	 
	C. Ratio (Line I.A.  ̧ Line I.B.7.):
	 	 	                     to 1.0
	 
	 	 	 	 
	Maximum Permitted:
	 	 	 	 






	 	 	 
	 	 	Maximum
	 	 	Consolidated
	Four Fiscal Quarters Ending	 	Leverage Ratio
	Effective Date through March 31, 2013
	 	0.65 to 1.00
	April 1, 2013 and thereafter
	 	0.60 to 1.00






	 	 	 	 	 
	II. Section 7.12(b) — Secured Recourse Indebtedness Ratio.
	 	 	 	 
	 
	 	 	 	 
	A. Secured Recourse Indebtedness (excluding Indebtedness
under the Credit Agreement) at Statement Date:
	 	$	                    	 
	 
	 	 	 	 
	B. Consolidated Total Asset Value at Statement Date (Line I.B.7.):
	 	$	                    	 
	 
	 	 	 	 
	C. Secured Recourse Indebtedness Ratio (Line II.A.  ̧ Line II.B.)
	 	 	                     to 1.0
	 
	 	 	 	 
	Maximum Permitted:
	 	0.20 to 1.00
	 
	 	 	 	 
	III. Section 7.12(c) — Fixed Charge Coverage Ratio.
	 	 	 	 
	 
	 	 	 	 
	A. Consolidated Adjusted EBITDA of CSI and its
Subsidiaries for Subject Period:
	 	 	 	 
	 
	 	 	 	 
	1. net income (loss):
	 	$	                    	 
	 
	 	 	 	 
	[to the extent included in determination of such net
income (loss)]:
	 	 	 	 
	 
	 	 	 	 
	a. depreciation and
amortization expense:
	 	$	                    	 




 




	 	 	 
	9	 	Shall not exceed 15% of consolidated Total Asset Value.





Form of Compliance Certificate



 


E-4









 





	 	 	 	 	 
	b. Consolidated Interest
Expense:
	 	$	                    	 
	 
	 	 	 	 
	c. income tax expense:
	 	$	                    	 
	 
	 	 	 	 
	d. extraordinary or
non-recurring losses:
	 	$	                    	 
	 
	 	 	 	 
	e. extraordinary or
non-recurring gains:
	 	$	                    	 
	 
	 	 	 	 
	f. Lines III.A.1. +
III.A.1.a. + III.A.1.b. + III.A.1.c. +
III.A.1.d. — III.A.1.e.:
	 	$	                    	 
	 
	 	 	 	 
	2. CSI’s pro rata share of net income
(loss) of Unconsolidated Affiliates for the Subject
Period:
	 	$	                    	 
	 
	 	 	 	 
	[to the extent included in determination of such net
income (loss)]:
	 	 	 	 
	 
	 	 	 	 
	a. depreciation and
amortization expense:
	 	$	                    	 
	 
	 	 	 	 
	b. interest expense
(without duplication of any amounts excluded as
Consolidated Interest Expense under Line
III.A.1.b. above):
	 	$	                    	 
	 
	 	 	 	 
	c. income tax expense:
	 	$	                    	 
	 
	 	 	 	 
	d. extraordinary or
non-recurring losses of Unconsolidated
Affiliates:
	 	$	                    	 
	 
	 	 	 	 
	e. extraordinary or
non-recurring gains of Unconsolidated
Affiliates
	 	 	 	 
	 
	 	 	 	 
	f. Lines III.A.2. +
III.A.2.a. + III.A.2.b. + III.A.2.c. +
III.A.2.d. — III.A.2.e.:
	 	$	                    	 
	 
	 	 	 	 
	3. Inter-company eliminations related to Erdman and its subsidiaries:
	 	$	                    	 
	 
	 	 	 	 
	4. Capital Reserves :
	 	$	                    	 
	 
	 	 	 	 
	5. Consolidated Adjusted EBITDA for
Subject Period (Lines III.A.1.f. + III.A.2.f. +
III.A.3-III.A.4.):
	 	$	                    	 




Form of Compliance Certificate



 


E-5









 





	 	 	 	 	 
	B. Consolidated Fixed Charges of CSI and its Subsidiaries for Subject Period:
	 	$	                                	 
	 
	 	 	 	 
	C. Ratio (Line III.A.5.  ̧ Line III.B.):
	 	 	                     to 1.0
	 
	 	 	 	 
	Minimum Required:
	 	 	 	 






	 	 	 
	 	 	Minimum Fixed
	 	 	Charge
	Four Fiscal Quarters Ending	 	Coverage Ratio
	Effective Date through March 31, 2012
	 	1.35 to 1.00
	April 1, 2012 and thereafter
	 	1.50 to 1.00






	 	 	 	 	 
	IV. Section 7.12(d) — Consolidated Tangible Net Worth.
	 	 	 	 
	 
	 	 	 	 
	A. Consolidated Tangible Net Worth of CSI and its
Subsidiaries at Statement Date:
	 	 	 	 
	 
	 	 	 	 
	1. stockholders’ equity of CSI and its
Subsidiaries determined on a consolidated basis:
	 	$	                    	 
	 
	 	 	 	 
	2. accumulated depreciation and
amortization:
	 	$	                    	 
	 
	 	 	 	 
	3. (to the extent deducted in determining
stockholders’ equity) minority interests in operating
partnership, determined in accordance with GAAP:
	 	$	                    	 
	 
	 	 	 	 
	[to the extent included in determination of such net
income (loss)]:
	 	 	 	 
	 
	 	 	 	 
	a. amount of any write-up
in the book value of any assets contained on
CSI’s consolidated balance sheet resulting from
revaluation thereof or any write-up in excess
of the cost of such assets acquired:
	 	$	                    	 
	 
	 	 	 	 
	b. all amounts appearing
on the assets side of CSI’s consolidated
balance sheet for assets which would be
classified as intangible assets under GAAP:
	 	$	                    	 




Form of Compliance Certificate



 


E-6









 





	 	 	 	 	 
	4. Consolidated Tangible Net Worth (Lines
IV.A.1. + IV.A.2. + IV.A.3 — IV.A.3.a. — IV.A.3.b.):
	 	$	                    	 
	 
	 	 	 	 
	B. 1. $237,105,600.00:
	 	$	                    	 
	 
	 	 	 	 
	2. Net Proceeds of Equity Issuances after the Effective Date:
	 	$	                    	 
	 
	 	 	 	 
	3. Line IV.B.2. times 0.80:
	 	$	                    	 
	 
	 	 	 	 
	4. Minimum Required Tangible Net Worth (Lines IV.B.1. + IV.B.3.):
	 	$	                    	 
	 
	 	 	 	 
	C. Excess (deficiency) for covenant compliance
(Line IV.A.6. — Line IV.B.4.):
	 	$	                    	 
	 
	 	 	 	 
	V. Section 7.12(e) — Facility Interest Coverage.
	 	 	 	 
	 
	 	 	 	 
	A. Net Operating Income of the Borrowing Base Properties
for Subject Period:
	 	 	 	 
	 
	 	 	 	 
	1. gross revenues for the Borrowing Base
Properties for Subject Period received in the ordinary
course of business (excluding pre-paid rents and
revenues and security deposits except to the extent
applied in satisfaction of tenants’ obligation for
rent):
	 	$	                    	 
	 
	 	 	 	 
	2. operating expenses incurred with
respect to the Borrowing Base Properties during the
Subject Period (including on appropriate accrual for
property taxes and insurance):
	 	$	                    	 
	 
	 	 	 	 
	[to the extent not duplicative of deduction
already taken in the calculation of Net Operating
Income]:
	 	 	 	 
	 
	 	 	 	 
	a. 4% of the annualized
gross revenues of the Borrowing Base
Properties:
	 	$	                    	 
	 
	 	 	 	 
	b. annualized amount of
management fees actually incurred for the
Borrowing Base Properties:
	 	$	                    	 
	 
	 	 	 	 
	c. Greater of Line
V.A.2.a. and V.A.2.b.:
	 	$	                    	 
	 
	 	 	 	 
	3. Net Operating Income of the Borrowing
Base Properties (Line V.A.1 — V.A.2 — V.A.2.c.)
	 	$	                    	 
	 
	 	 	 	 
	B. Facility Interest Expense:
	 	$	                    	 
	 
	 	 	 	 
	C. Facility Interest Coverage Ratio (Line V.A.3 ÷IV.B.)
	 	$	                    	 
	 
	 	 	 	 
	Minimum Required:
	 	1.50 to 1.00
	 
	 	 	 	 









Form of Compliance Certificate




 


E-7









 







EXHIBIT F




FORM OF ASSIGNMENT AND ASSUMPTION




This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]1 Assignor
identified in item 1 below ([the][each, an] “Assignor”) and
[the][each]2 Assignee identified in item 2 below ([the][each, an]
“Assignee”). [It is understood and agreed that the rights and obligations of [the
Assignors][the Assignees]3 hereunder are several and not joint.]4
Capitalized terms used but not defined herein shall have the meanings given to them in the Credit
Agreement identified below (the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.



For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities5) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its
capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned by [the][any] Assignor
to [the][any] Assignee pursuant to clause (i) above (the rights and obligations sold and assigned
pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an]
“Assigned Interest”). Each such sale and assignment is without recourse to [the][any]
Assignor and, except as expressly provided in this Assignment and Assumption, without
representation or warranty by [the][any] Assignor.


 






	 	 	 
	1	 	For bracketed language here and elsewhere in this form
relating to the Assignor(s), if the assignment is from a single Assignor,
choose the first bracketed language. If the assignment is from multiple
Assignors, choose the second bracketed language.

	 
	2	 	For bracketed language here and elsewhere in this form
relating to the Assignee(s), if the assignment is to a single Assignee, choose
the first bracketed language. If the assignment is to multiple Assignees,
choose the second bracketed language.

	 
	3	 	Select as appropriate.

	 
	4	 	Include bracketed language if there are either
multiple Assignors or multiple Assignees.

	 
	5	 	Include all applicable subfacilities.





Form of Assignment and Assumption




 


F-1









 










	 	 	 
	1. Assignor[s]:

	 	                                        
	 
	 	 
	2. Assignee[s]:

	 	                                        

[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
	 
	 	 
	3. Borrower:

	 	Cogdell Spencer LP
	 
	 	 
	4. Administrative Agent:

	 	 Bank of America, N.A., as the administrative agent under the Credit Agreement
	 
	 	 
	5. Credit Agreement:

	 	Amended and Restated Credit Agreement, dated as of March 1, 2011 among Cogdell Spencer LP,
Cogdell Spencer Inc., the Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender
	6. Assigned Interest:
	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Aggregate	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	 	 	 	 	Percentage	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Commitment/	 	 	Amount of	 	 	Assigned of	 	 	 	 
	 	 	 	 	 	 	Facility	 	 	Loans for all	 	 	Commitment/	 	 	Commitment/	 	 	CUSIP	 
	Assignor[s]	 	Assignee[s]	 	 	Assigned	 	 	Lenders	 	 	Loans Assigned	 	 	Loans	 	 	Number	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 






	 	 	 
	[7. Trade Date:

	 	                                        ]6






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


 






	 	 	 
	6	 	To be completed if the Assignor and the Assignee
intend that the minimum assignment amount is to be determined as of the Trade
Date.





Form of Assignment and Assumption



 


F-2









 





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



	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 



	 	 	 	 	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 



	 	 	 	 	 
	[Consented to and] Accepted:	 	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A., as	 	 
	Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 
	 
	 	 	 	 
	[Consented to:]	 	 
	 
	 	 	 	 
	COGDELL SPENCER LP7	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 





 






	 	 	 
	7	 	Unless an Event of Default has occurred and is
continuing, in which case Borrower’s consent is not required.





Form of Assignment and Assumption




 


F-3









 










ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION





1. Representations and Warranties.



1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.



1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
11.06(b)(iii), (v) and (vi) of the Credit Agreement (subject to receipt of such
consents as may be required under the Credit Agreement), (iii) from and after the Effective Date,
it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the
extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it is sophisticated with respect to decisions to acquire assets of the type presented by
[the][such] Assigned Interest and either it, or the Person exercising discretion in making its
decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type,
(v) it has received a copy of the Credit Agreement and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered pursuant to
Section 7.01 thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, (vi) it has independently and without
reliance upon the Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a
Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees
that (i) it will, independently and without reliance upon the Administrative Agent, [the][any]
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required to be performed
by it as a Lender.



Form of Assignment and Assumption



 


F-4









 







2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][relevant] Assignee for amounts which have accrued
from and after the Effective Date.



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



Form of Assignment and Assumption




 


F-5









 







EXHIBIT G




FORM OF AMENDED AND RESTATED GUARANTY




See attached.




Form of Guaranty



 


G-1









 





EXHIBIT H




FORM OF ELIGIBLE

PROPERTY COMPLIANCE CERTIFICATE




Date: __________ _____, _______





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






Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 1,
2011 (as amended, amended and restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement”; the terms defined therein being used herein as therein
defined), among Cogdell Spencer LP, a Delaware limited partnership (the “Borrower”),
Cogdell Spencer Inc., a Maryland corporation (“CSI”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.



The undersigned hereby certifies as of the date hereof that he/she is authorized to execute
and deliver this certificate to Agent on the behalf of the Borrower, and that the analyses and
information in evidencing the compliance with the definition of “Eligible Property” set forth on
Exhibit 1 attached hereto are true and accurate on and as of the date of this Certificate.



IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
 _____,

 _____.



	 	 	 	 	 
	 	COGDELL SPENCER LP, as Borrower



By: CS Business Trust I, its General Partner

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Form of Eligible Property Compliance Certificate




 


H-1









 





Date: ___________________ (“Statement Date”)




EXHIBIT 1

to the Eligible Property Compliance Certificate




Property or Properties:



[List relevant Property or Properties, and owner of each such Property,

for this Eligible Property Compliance Certificate]




	 	 	 	 	 
	Property	 	Owner of Property	 	Square Footage
	 	 	 	 	 
	[                    ]
	 	[                    ]
	 	[                    ]
	 	 	 	 	 
	 
	 	 	 	Total Sq. Footage:                     






Each Property listed above satisfies all of the following requirements:



(a) each such Property is fully developed as (i) a medical office property, (ii) an ambulatory
surgery property, or (iii) other property customarily constituting an asset of a REIT specializing
in medical office properties;



(b) each such Property is 100% owned by a Guarantor, or 100% leased by a Guarantor under a
Ground Lease reasonably acceptable to the Agent as to which (i) Lease Party Documents have been
delivered to the Agent and (ii) the base rental payments to lessors or their assignees by such
Persons under such Ground Lease are not delinquent for more than 60 days;



(c) each such Property, or any interest of the Borrower or any Guarantor therein, is free of
all Liens except Permitted Encumbrances;



(d) the Borrower, directly or indirectly through the Guarantor that owns or leases such
Property, has the right to take the following actions without the need to obtain the consent of any
Person, or to the extent any consent is required by the Ground Lease, such consent has been
obtained: (x) to sell, transfer or otherwise dispose of such Property in the case of an owned
Property or (y) to create a lien on such Property as security for Indebtedness of the Borrower or
such Guarantor, in the case of a leased Property;



(e) each such Property is free of all structural defects or major architectural deficiencies,
title defects, environmental conditions or other adverse matters except for defects,
deficiencies, conditions or other matters individually or collectively which are not material
to the profitable operation of such Property; and



Form of Eligible Property Compliance Certificate



 


H-2









 





(f) each such Property is in material compliance with all Environmental Laws as evidenced by a
Phase I environmental assessment (and, if required or recommended by the results of the Phase I
environmental assessment, a Phase II environmental assessment) in form and substance reasonably
satisfactory to the Agent, and dated not earlier than six months prior to the date of the Eligible
Property Compliance Certificate for such Property provided, however, with respect
to each of the Existing Eligible Properties, such previously approved Phase I environmental
assessments shall be satisfactory to the Agent if supplemented by an environmental questionnaire
delivered by the owner or ground lessee of such Existing Eligible Property, in form and substance
reasonably satisfactory to the Agent and dated not earlier than six months prior to the Effective
Date.



If any such Property does not meet the above criteria, such Property is otherwise
acceptable to the Required Lenders as follows:



[describe specific Property or Properties that do not comply with any of the above criteria, and
actions taken by the Required Lenders that consent to such Property as being “Eligible Property”
pursuant to clause (g) of the definition thereof]



Form of Eligible Property Compliance Certificate




 


H-3









 








EXHIBIT I




FORM OF TENANT ESTOPPEL CERTIFICATE




			
	 	 	 
	STATE OF                     
	 	TENANT ESTOPPEL
	COUNTY OF                     
	 	CERTIFICATE






The undersigned,
 _____, a
 _____ (“Lessee”), the lessee named in that
certain [Lease Agreement] (the “Lease”) dated as of
 _____,
 _____ between Lessee and
 _____, a
 _____ (“Lessor”), as lessor, for certain space
containing
 _____ [usable/rentable] square feet commonly known as Suite
 _____ (the
“Premises”) on the
 _____ floor of the medical office building owned by Lessor (the “Building”)
and located at
 _____ in
 _____,
 _____ County,
 _____, hereby certifies
to Bank of America, N.A., a national banking association, acting in its capacity as Administrative
Agent, its successors and assigns (“Lender”), as follows:




	1.	 	Attached hereto as Exhibit A is a true, correct and complete copy of the Lease, as
the same may have been modified or amended, together with any and all guaranties of the Lease
that may have been delivered to Lessor or any predecessor to Lessor thereunder.







	2.	 	There are no oral agreements or understandings between Lessor (and its predecessors, if
applicable) and Lessee with respect to the Lease or any obligations of any party thereunder.







	3.	 	Except as expressly set forth in the Lease, Lessee has no options to purchase, options to
renew, extend or cancel the Lease or to lease additional space in the Premises or the
Building, rights of refusal, rights of first offer, rights of negotiation, expansion rights
nor contraction rights, however denominated, with respect to the Premises or the Building.







	4.	 	The term of the Lease commenced on
 _____,
 _____, and is currently scheduled to
expire on
 _____, 2011, including any presently exercised option or renewal term.







	5.	 	The [Base Rental] currently payable by Lessee under the Lease is $______ per
[usable/rentable] square foot of the Premises per annum. [Base Rental] has been paid in full
through
 _____, 2007. Increases in [Base Rental] occur as of
 _____ of each
year during the term of the Lease. Increases in [Base Rental] are calculated based on

 _____. No [Base Rental] has been paid more than thirty (30) days in
advance of its due date.







	6.	 	All conditions of the Lease to be performed by Lessor and necessary to the enforceability of
the Lease have been satisfied. Lessee has no defenses or offsets which could be
alleged in any action brought for [Base Rental] or any other payments due under the Lease
accruing subsequent to the date of this Certificate.






Form of Estoppel Certificate



 


I-1









 






	7.	 	[Lessee’s Share] (as defined in the Lease) of operating expenses is
 _____%. Payment of such
charges has not been made for any period more than thirty (30) days in advance of such
payment.







	8.	 	Lessee has not defaulted in its obligations under the Lease and, to the best of Lessee’s
knowledge, Lessor has not defaulted in any of its obligations under the Lease, and no event
has occurred or situation exists that would, with the passage of time, constitute a default
under the Lease.







	9.	 	All contributions required by the Lease to be paid by Lessor to date for improvements to the
Premises have been paid in full. All improvements or work required under the Lease to be made
by Lessor to date, if any, have been completed to the satisfaction of the Lessee. Charges for
all labor and materials used or furnished in connection with improvements and/or alterations
made for the account of the Lessee in the Building have been paid in full. The Lessee has
accepted the Premises, subject to no conditions other than those set forth in the Lease. The
Lessee has entered into occupancy of the Premises.







	10.	 	Pursuant to the Lease, Lessee has paid to Lessor a security deposit in the amount of
$_____.

	 
	11.	 	To Lessee’s knowledge, the guaranty of the Lease, if any, is in full force and effect.







	12.	 	Lessee has not sublet any portion of the Premises or assigned any of its rights under the
Lease.







	13.	 	All insurance required of the Lessee under the Lease has been provided by the Lessee and all
premiums have been paid.







	14.	 	In addition to the Premises, the Lessee has the right to use or rent
 _____ parking spaces in
or near the Building during the term of the Lease.







	15.	 	The Lessee has all governmental permits, licenses and consents required for the activities
and operations being conducted or to be conducted by it in or around the Building.







	16.	 	The Lessee hereby agrees that in the event that the Lender or other holder of the mortgage or
deed of trust acquires title to the property encumbered by the mortgage or deed of trust on
which the Building is located, such holder will not be liable for any security deposit that
the Lessee may have given to any previous lessor (including Lessor) which has not, as such,
been transferred to such holder.







	17.	 	Neither Lessee nor any guarantor of the Lease is presently the subject of any proceeding
pursuant to Title 11 of the United States Code, as amended from time to time, or any successor
statute thereto.






Form of Estoppel Certificate



 


I-2









 






	18.	 	The Lessee acknowledges the right of Lender to rely upon the certifications and agreements in
this Certificate in making a loan to Lessor. The Lessee hereby agrees to furnish Lender with
such other and further estoppel certificates as Lender may reasonably request. The Lessee
understands that in connection with such loan, Lessor’s interest in the rentals due under the
Lease will be assigned to Lender pursuant to an assignment of leases by Lessor in favor of
Lender. The Lessee agrees that if Lender shall notify the Lessee that a default has occurred
under the documents evidencing such loan and shall demand that the Lessee pay rentals and
other amounts due under the Lease to Lender, the Lessee will honor such demand notwithstanding
any contrary instructions from Lessor.







	19.	 	The person signing this Certificate on behalf of Lessee represents and warrants that he or
she is duly authorized to do so.






	 	 	 	 	 
	 	LESSEE:



[                    ]

 	 
	 	By:  	 	 
	 	 	Title: 	 	 
	 	 	Date: 	 	 



Form of Estoppel Certificate




 


I-3









 







EXHIBIT J-1




FORM OF SUBORDINATION,

NON-DISTURBANCE AND ATTORNMENT AGREEMENT




See attached.




Form of Subordination, Non-Disturbance and Attornment Agreement




 


J-1-1









 







EXHIBIT J-2




FORM OF REAFFIRMATION AND AMENDMENT TO SUBORDINATION,

NON-DISTURBANCE AND ATTORNMENT AGREEMENT




See attached.




Form of Reaffirmation and Amenment to

Subordination, Non-Disturbance and Attornment Agreement




 


J-2-1









 







EXHIBIT K




FORM OF OPINION OF SPECIAL COUNSEL




See attached.




Form of Opinion of Special Counsel




 


K-1









 





EXHIBIT L-1




FORM OF CONSENT AND AGREEMENT

REGARDING PERFORMANCE UNDER GROUND LEASE




See attached.




Form of Consent and Agreement Regarding

Performance Under Ground Lease




 


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EXHIBIT L-2




FORM OF AFFIRMATION OF, AND AMENDMENT TO, LANDLORD’S CONSENT

AND AGREEMENT REGARDING PERFORMANCE UNDER GROUND LEASE




See attached.




Form of Affirmation of, and Amendment to, Consent

and Agreement Regarding Performance Under Ground Lease






 


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EXHIBIT M




FORM OF ENVIRONMENTAL INDEMNITY AGREEMENT




THIS ENVIRONMENTAL INDEMNITY AGREEMENT (“Agreement”), which is dated as of
 _____,
2011, is executed by COGDELL SPENCER LP, a Delaware limited partnership (“Borrower”) and
[Name of Grantor], a
 _____ (“Grantor”; Borrower and Grantor being
hereafter sometimes referred to individually as an “Obligor” and collectively as the
“Obligors”) in favor of BANK OF AMERICA, N.A., a national banking association, in its
capacity as administrative agent (in such capacity and together with any successor acting in such
capacity under the Credit Agreement (as defined below), “Agent”), on behalf of itself and
the lenders (the “Lenders”) party to that certain Amended and Restated Credit Agreement to
be entered into by and among Borrower and certain of its affiliates (collectively, the
“Borrower”), Agent and the Lenders (as from time to time amended, revised, modified,
supplemented or amended and restated, the “Credit Agreement”).



W I T N E S S E T H:




WHEREAS, Grantor is the [owner of] [tenant under that certain Ground Lease dated

 _____ (the “Lease”) between
 _____ and Grantor] covering certain
real property located in
 _____ County,
 _____ and described on Exhibit A
attached hereto and incorporated herein by reference (the “Property”); and



WHEREAS, pursuant to the terms of the Credit Agreement, the Borrower intends to enter into
certain financing arrangements as set forth in the Credit Agreement; and



WHEREAS, as a condition of the Lenders agreeing to make loans and other financial
accommodations and extensions of credit to the Borrower (hereinafter, collectively, the “Loans”),
Agent, acting on behalf of the Lenders, requires, among other things, that Grantor grant a
[mortgage / leasehold mortgage] to Agent for the benefit of the Lenders and other parties (the
“Secured Parties”) covering the [Property/ leasehold estate created by and under the Lease
and Grantor’s interest in the Lease]; and



WHEREAS, Agent, acting on behalf of the Lenders, further requires that the Obligors enter into
this Agreement, and the Obligors have agreed to do so.



NOW, THEREFORE, in order to induce Agent and the Lenders (together with their successors and
assigns) to enter into said financing arrangements and to make the loans under the Credit
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:




1. Certain Definitions. As used in this Agreement:



(a) “Environmental Assessment” shall have the meaning set forth in Paragraph 5 of
this Agreement.



(b) “Environmental Claim” means any investigative, enforcement, cleanup, removal,
containment, remedial or other private or governmental or regulatory action at any time threatened,
instituted or completed pursuant to any applicable Environmental Requirement (hereinafter defined),
against Borrower or any Obligor against or with respect to the Property or any condition, use or
activity on the Property (including any such action against Agent or any Lender), and any claim at
any time
threatened or made by any person against any Obligor or against or with respect to the Property or
any condition, use or activity on the Property (including any such claim against Agent or any
Lender), relating to damage, contribution, cost recovery, compensation, loss or injury resulting
from or in any way arising in connection with any Hazardous Material (hereinafter defined) or any
Environmental Requirement.



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(c) “Environmental Damages” shall have the meaning set forth in Paragraph 7(b) of
this Agreement.



(d) “Environmental Law” means any federal, state or local law, statute, ordinance,
code, rule, regulation, license, authorization, decision, order, injunction, decree, or rule of
common law, and any judicial interpretation of any of the foregoing, which pertains to health,
safety, any Hazardous Material, or the environment (including but not limited to ground or air or
water or noise pollution or contamination, and underground or above ground tanks) and shall include
without limitation, the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq.; the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601
et seq. (“CERCLA”), as amended by the Superfund Amendments and
Reauthorization Act of 1986 (“SARA”); the Hazardous Materials Transportation Act, 49 U.S.C.
§ 1801 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251
et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Toxic
Substances Control Act, 15 U.S.C. § 2601 et seq.; the Safe Drinking Water Act, 42
U.S.C. § 300f et seq.; the Oil Pollution and Hazardous Substances Control Act, N.C.
Gen. Stat. § 143-215.77; the Inactive Hazardous Sites Act, N.C. Gen. Stat. § 130A-310; and any
other state or federal environmental statutes, and all rules, regulations, orders and decrees now
or hereafter promulgated under any of the foregoing, as any of the foregoing now exist or may be
changed or amended or come into effect in the future.



(e) “Environmental Requirement” means any Environmental Law (hereinafter defined),
agreement or restriction (including but not limited to any condition or requirement imposed by any
insurance or surety company), as the same now exists or may be changed or amended or come into
effect in the future, which pertains to health, safety, any Hazardous Material, or the environment,
including but not limited to ground or air or water or noise pollution or contamination, and
underground or aboveground tanks.



(f) “Hazardous Material” means any substance, whether solid, liquid or gaseous:
which is listed, defined or regulated as a “hazardous substance”, “hazardous waste” or “solid
waste” or words of similar import, or otherwise classified as hazardous or toxic, in or pursuant to
any Environmental Requirement; or which is or contains asbestos, radon, any polychlorinated
biphenyl, urea formaldehyde foam insulation, explosive or radioactive material, or motor fuel or
other petroleum hydrocarbons; or which causes or poses a threat to cause a contamination or
nuisance on the Property or any adjacent property or a hazard to the environment or to the health
or safety of persons on the Property.



(g) “Indemnified Party” shall have the meaning set forth in Paragraph 7(a) of this
Agreement.



(h) “On” or “on”, when used with respect to the Property or any property
adjacent to the Property, means “on, in, under, above or about”.



(i) “Release Date” shall have the meaning set forth in Paragraph 7(c) of this
Agreement.




(j) “Trustee” shall have the meaning set forth in Paragraph 7(a) of this Agreement.



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2. Representations and Warranties. Each Obligor, after due inquiry and investigation
in accordance with good commercial or customary practices to determine whether contamination is
present on the Property or elsewhere in connection with any activity on the Property, hereby
represents and
warrants to, and covenants with, Agent, without regard to whether Agent has or hereafter obtains
any knowledge or report of the environmental condition of the Property, as follows:



(a) During the period of Borrower’s ownership of the Property, the Property has not been used
for industrial or manufacturing purposes, for landfill, dumping or other waste disposal activities
or operations, for generation, storage, use, sale, treatment, processing, recycling or disposal of
any Hazardous Material, for underground or aboveground storage tanks, or for any other use that
could give rise to the release of any Hazardous Material on the Property; to the best of Obligors’
knowledge, no such use of the Property occurred at any time prior to the period of Borrower’s
ownership of the Property; and to the best of Obligor’s knowledge, no such use on any adjacent
property occurred at any time prior to the date hereof;



(b) To the best of Obligors’ knowledge, there is no Hazardous Material, storage tank (or
similar vessel) whether underground or otherwise, sump or well currently on the Property;



(c) Obligors have received no notice and have no knowledge of any Environmental Claim or any
completed, pending or proposed or threatened investigation or inquiry concerning the presence or
release of any Hazardous Material on the Property or any adjacent property or concerning whether
any condition, use or activity on the Property or any adjacent property is in violation of any
Environmental Requirement;



(d) The present conditions, uses and activities on the Property do not violate any
Environmental Requirement and the use of the Property which Borrower (and each tenant and
subtenant, if any) makes and intends to make of the Property complies and will comply with all
applicable Environmental Requirements;



(e) The Property does not appear on, and to the best of each Obligors’ knowledge has never
been on, the National Priorities List, any federal or state “superfund” or “superlien” list, or any
other list or database of properties maintained by any local, state or federal agency or department
showing properties which are known to contain or which are suspected of containing a Hazardous
Material;



(f) No Obligor has ever applied for and been denied environmental impairment liability
insurance coverage relating to the Property; and



(g) No Obligors, nor to any Obligors’ knowledge any tenant or subtenant, has obtained or is
required to obtain any permit or authorization to construct, occupy, operate, use or conduct any
activity on any of the Property by reason of any Environmental Requirement.



3. Violations. No Obligor will cause, commit, permit or allow to continue (i) any
violation of any Environmental Requirement (A) by any Obligor or by any other person or entity (B)
by or with respect to the Property or any use of or condition or activity on the Property, or (ii)
the attachment of any environmental lien to the Property. No Obligor will place, install, dispose
of or release, or cause, permit, or allow the placing, installation, disposal, spilling, leaking,
dumping or release of, any Hazardous Material or storage tank (or similar vessel) on the Property
and will keep the Property free of Hazardous Material. Notwithstanding the foregoing provisions of
this Section 3, Obligors shall not be in Default under this Section 3 should Obligors store minimal
quantities of substances on the Property which technically could be considered Hazardous Material,
provided that: such substances are of a type and are held only in a quantity normally used
in connection with the construction, occupancy or operation of comparable buildings (such as
cleaning fluids, and supplies normally used in the day to day operation of business offices), such
substances are being held, stored and used in complete and strict compliance with all applicable
Environmental Requirements, and the indemnity in Section 7 of this Agreement shall always apply to
such substances, and it shall be and continue to be the responsibility of Obligors to take
all remedial actions required under and in accordance with Section 6 of this Agreement in the event
of any unlawful release of any such substance.



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4. Notice to Agent. Each Obligor shall promptly deliver to Agent a copy of each
report pertaining to the Property or to such Obligor prepared by or on behalf of any Obligor
pursuant to any Environmental Requirement. Each Obligor shall immediately advise Agent in writing
of any Environmental Claim or of the discovery of any Hazardous Material on the Property, as soon
as such Obligor first obtains knowledge thereof, including a full description of the nature and
extent of the Environmental Claim and/or Hazardous Material and all relevant circumstances.



5. Site Assessments and Information. If Agent shall ever have reason to believe that
any Hazardous Material affects the Property, or if any Environmental Claim is made or threatened,
or if a Default (as defined in the Deed of Trust) shall have occurred under the Loan Documents (as
defined in the Deed of Trust), or upon the occurrence of the Release Date (hereinafter defined) if
requested by Agent, Obligors shall at their expense, provide to Agent from time to time, in each
case within thirty (30) days after Agent’s request, an Environmental Assessment (hereinafter
defined) made after the date of Agent’s request. As used in this Agreement, the term
“Environmental Assessment” means a report (including all drafts thereof) of an
environmental assessment of the Property of such scope (including but not limited to the taking of
soil borings and air and groundwater samples and other above and below ground testing) as Agent may
request, by a consulting firm acceptable to Agent and made in accordance with Agent’s established
guidelines. Obligors will cooperate with each consulting firm making any such Environmental
Assessment and will supply to the consulting firm, from time to time and promptly on request, all
information available to Obligors to facilitate the completion of the Environmental Assessment. If
Obligors fail to furnish Agent within ten (10) days after Agent’s request with a copy of an
agreement with an acceptable environmental consulting firm to provide such Environmental
Assessment, or if any Obligor fails to furnish to Agent such Environmental Assessment within thirty
(30) days after Agent’s request, Agent may cause any such Environmental Assessment to be made at
Obligor’s expense and risk. Agent and its designees are hereby granted access to the Property at
any time or times, upon reasonable notice (which may be written or oral), and a license which is
coupled with an interest and irrevocable, to make or cause to be made such Environmental
Assessments. Agent may disclose to interested parties any information Agent ever has about the
environmental condition or compliance of the Property, but shall be under no duty to disclose any
such information except as may be required by law. Agent shall be under no duty to make any
Environmental Assessment of the Property, and in no event shall any such Environmental Assessment
by Agent be or give rise to a representation that any Hazardous Material is or is not present on
the Property, or that there has been or shall be compliance with any Environmental Requirement, nor
shall Obligors or any other person be entitled to rely on any Environmental Assessment made by
Agent or at Agent’s request. Agent owes no duty of care to protect Obligors or any other person
against, or to inform them of, any Hazardous Material or other adverse condition affecting the
Property.




6. Remedial Actions.



(a) If any Hazardous Material is discovered on the Property at any time and regardless of the
cause, (i) Obligors shall promptly at Obligor’s sole risk and expense remove, treat, and dispose of
the Hazardous Material in compliance with all applicable Environmental Requirements and solely
under Obligor’s (or any of their) name (or if removal is prohibited by any Environmental
Requirement, take whatever action is required by any Environmental Requirement), in addition to
taking such other action as is necessary to have the full use and benefit of the Property as
contemplated by the Loan Documents, and provide Agent with satisfactory evidence thereof; and (ii)
if requested by Agent, provide to Agent within thirty (30) days of Agent’s request a bond, letter
of credit or other financial assurance evidencing to
Agent’s satisfaction that all necessary funds are readily available to pay the costs and expenses
of the actions required by clause (i) preceding and to discharge any assessments or liens
established against the Property as a result of the presence of the Hazardous Material on the
Property. Within fifteen (15) days after completion of such remedial actions, Obligors shall
obtain and deliver to Agent an Environmental Assessment of the Property made after such completion
and confirming to Agent’s satisfaction that all required remedial action as stated above has been
taken and successfully completed and that there is no evidence or suspicion of any contamination or
risk of contamination on the Property or any adjacent property, or of violation of any
Environmental Requirement, with respect to any such Hazardous Material.



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(b) Agent may, but shall never be obligated to, remove or cause the removal of any Hazardous
Material from the Property (or if removal is prohibited by any Environmental Requirement, take or
cause the taking of such other action as is required by any Environmental Requirement) if Obligors
fail to promptly commence such remedial actions following discovery and thereafter diligently
prosecute the same to the satisfaction of Agent (without limitation of Agent’s rights to declare a
default under any of the Loan Documents and to exercise all rights and remedies available by reason
thereof); and Agent and its designees are hereby granted access to the Property at any time or
times, upon reasonable notice (which may be written or oral), and a license which is coupled with
an interest and irrevocable, to remove or cause such removal or to take or cause the taking of any
such other action. All costs and expenses of such removal or other action shall be paid by
Obligors.




7. Indemnity.



(a) Obligors hereby agree to protect, indemnify, defend and hold (i) Agent; (ii) the
Trustee(s) under the Deed of Trust (the “Trustee”); (iii) any persons or entities owned or
controlled by, owning or controlling, or under common control or affiliated with Lenders and/or
Trustee; (iv) the Lenders; (v) the directors, officers, partners, employees and agents of Agent,
Lenders and/or Trustee, and/or such persons or entities; and (vi) the heirs, personal
representatives, successors and assigns of each of the foregoing persons or entities (each an
“Indemnified Party”) harmless from and against, and, if and to the extent paid, reimburse
them on demand for, any and all Environmental Damages (hereinafter defined). Without limitation,
the foregoing indemnity shall apply to each Indemnified Party with respect to Environmental Damages
which in whole or in part are caused by or arise out of the negligence of such (and/or any other)
Indemnified Party. However, such indemnity shall not apply to a particular Indemnified Party to
the extent that the subject of the indemnification is caused by or arises out of the gross
negligence or willful misconduct of that particular Indemnified Party. Upon demand by Agent,
Obligors shall diligently defend any Environmental Claim which affects the Property or is made or
commenced against Agent or any Lender, whether alone or together with Obligors or any other person,
all at Obligors’ own cost and expense and by counsel to be approved by Agent in the exercise of its
reasonable judgment. In the alternative, at any time Agent may elect to conduct its own defense
through counsel selected by Agent and at the cost and expense of Obligors.



(b) As used in this Agreement, the term “Environmental Damages” means all claims,
demands, liabilities (including strict liability), losses, damages (including consequential
damages), causes of action, judgments, penalties, fines, costs and expenses (including fees, costs
and expenses of attorneys, consultants, contractors, experts and laboratories), of any and every
kind or character, contingent or otherwise, matured or unmatured, known or unknown, foreseeable or
unforeseeable, made, incurred, suffered, brought, or imposed at any time and from time to time,
whether before or after the Release Date (hereinafter defined) and arising in whole or in part
from:




(1) the presence of any Hazardous Material on the Property, or any escape, seepage,
leakage, spillage, emission, release, discharge or disposal of any Hazardous Material on or
from the
Property, or the migration or release or threatened migration or release of any Hazardous
Material to, from or through the Property, on or before the Release Date; or



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(2) any act, omission, event or circumstance existing or occurring in connection with the
handling, treatment, containment, removal, storage, decontamination, clean-up, transport or
disposal of any Hazardous Material which is at any time on or before the Release Date
present on the Property; or




(3) the breach of any representation, warranty, covenant or agreement contained in this
Agreement because of any event or condition occurring or existing on or before the Release
Date; or




(4) any violation on or before the Release Date, of any Environmental Requirement in effect
on or before the Release Date, regardless of whether any act, omission, event or
circumstance giving rise to the violation constituted a violation at the time of the
occurrence or inception of such act, omission, event or circumstance; or




(5) any Environmental Claim, or the filing or imposition of any environmental lien against
the Property, because of, resulting from, in connection with, or arising out of any of the
matters referred to in subparagraphs (1) through (4) preceding;



and regardless of whether any matter set forth in the foregoing subparagraphs (1) through (5) was
caused by an Obligor or a tenant or subtenant, or a prior owner of the Property or its tenant or
subtenant, or any third party, including but not limited to (i) injury or damage to any person,
property or natural resource occurring on or off of the Property, including but not limited to the
cost of demolition and rebuilding of any improvements on real property; (ii) the investigation or
remediation of any such Hazardous Material or violation of Environmental Requirement, including but
not limited to the preparation of any feasibility studies or reports and the performance of any
cleanup, remediation, removal, response, abatement, containment, closure, restoration, monitoring
or similar work required by any Environmental Requirement or necessary to have full use and benefit
of the Property as contemplated by the Loan Documents (including any of the same in connection with
any foreclosure action or transfer in lieu thereof); (iii) all liability to pay or indemnify any
person or governmental authority for costs, fines or penalties expended in connection with any of
the foregoing; (iv) the investigation and defense of any claim, whether or not such claim is
ultimately defeated; and (v) the settlement of any claim or judgment.



(c) As used in this Agreement, the term “Release Date” means the earlier of the
following two dates: (i) the date on which the indebtedness and obligations secured by the Deed of
Trust have been paid and performed in full and the Deed of Trust has been released; or (ii) the
date on which the lien of the Deed of Trust is fully and finally foreclosed or a conveyance by deed
in lieu of such foreclosure is fully and finally effective and possession of the Property has been
given to and accepted by the purchaser or grantee free of occupancy and claims to occupancy by
Obligors and their heirs, devisees, representatives, successors and assigns; provided that, if such
payment, performance, release, foreclosure or conveyance is challenged, in bankruptcy proceedings
or otherwise, the Release Date shall be deemed not to have occurred until such challenge is validly
released, dismissed with prejudice or otherwise barred by law from further assertion.



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8. Consideration; Survival; Cumulative Rights. Obligors acknowledge that Agent has
relied and will rely on the representations, warranties, covenants and agreements herein in closing
and funding the Loans and that the execution and delivery of this Agreement is an essential
condition but for which Agent would not close or fund the Loans. The representations, warranties,
covenants and agreements in this Agreement shall be binding upon Obligors and their successors,
assigns and legal representatives and
shall inure to the benefit of Agent and any Lender and their respective successors, assigns and
legal representatives and participants in the Loans; and shall not terminate on the Release Date or
upon the release, foreclosure or other termination of the Deed of Trust, but will survive the
Release Date, the payment in full of the indebtedness secured by the Deed of Trust, foreclosure of
the Deed of Trust or conveyance in lieu of foreclosure, the release or termination of the Deed of
Trust and any and all of the other Loan Documents, any investigation by or on behalf of Agent, any
bankruptcy or other debtor relief proceeding, and any other event whatsoever. Any amount to be
paid under this Agreement by Obligors (or any of them) shall be a demand obligation owing by
Obligors (which Obligors hereby promise to pay). Agent’s rights under this Agreement shall be in
addition to all rights of Agent under the Loan Documents or at law or in equity, and payments by
any Obligor under this Agreement shall not reduce Obligors’ obligations and liabilities under any
of the Loan Documents. The liability of Obligors or any other person under this Agreement shall
not be limited or impaired in any way by any provision in the Loan Documents or applicable law
limiting Obligors’ or such other person’s liability or Agent’s recourse or rights to a deficiency
judgment, or by any change, extension, release, inaccuracy, breach or failure to perform by any
party under the Loan Documents, Obligors’ (and, if applicable, such other person’s) liability
hereunder being direct and primary and not as a guarantor or surety. Each Obligor hereby assigns
and irrevocably transfers to Agent any and all rights of subrogation, contribution,
indemnification, reimbursement or similar rights it may have against any other Obligor or any other
person for Environmental Damages. Nothing in this Agreement or in any other Loan Document shall
limit or impair any rights or remedies of Agent, Trustee and/or any other Indemnified Party against
any Obligor or any other person under any Environmental Requirement or otherwise at law or in
equity, including without limitation any rights of contribution or indemnification.



9. No Waiver. No delay or omission by Agent to exercise any right under this
Agreement shall impair any such right nor shall it be construed to be a waiver thereof. No waiver
of any single breach or Default under this Agreement shall be deemed a waiver of any other breach
or Default. Any waiver, consent or approval under this Agreement must be in writing to be
effective.



10. Notices. All notices, requests, consents, demands and other communications
required or which any party desires to give hereunder or under any other Loan Document shall be in
writing and, unless otherwise specifically provided in such other Loan Document, shall be deemed
sufficiently given or furnished if delivered by personal delivery, by nationally recognized
overnight courier service, or by registered or certified United States mail, postage prepaid,
addressed to the party to whom directed at the addresses specified at the end of this Agreement
(unless changed by similar notice in writing given by the particular party whose address is to be
changed) or by telegram, telex, or facsimile. Any such notice or communication shall be deemed to
have been given either at the time of personal delivery or, in the case of nationally recognized
overnight courier service or United States mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or, in the case of telegram, telex or facsimile, upon
receipt; provided that, service of a notice required by any applicable statute, shall be considered
complete when the requirements of that statute are met. Notwithstanding the foregoing, no notice
of change of address shall be effective except upon actual receipt. This Section shall not be
construed in any way to affect or impair any waiver of notice or demand provided in any Loan
Document or to require giving of notice or demand to or upon any person in any situation or for any
reason.



11. Invalid Provisions. A determination that any provision of this Agreement is
unenforceable or invalid shall not affect the enforceability or validity of any other provision and
a determination that the application of any provision of this Agreement to any person or
circumstance is illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.



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12. Construction. Whenever in this Agreement the singular number is used, the same
shall include plural where appropriate, and vice versa; and words of any gender in this Agreement
shall include each other gender where appropriate. The headings in this Agreement are for
convenience only and shall be disregarded in the interpretation hereof. Reference to “person” or
“entity” means firms, associations, partnerships, joint ventures, trusts, limited liability
companies, corporations and other legal entities, including public or governmental bodies, agencies
or instrumentalities, as well as natural persons.



13. Applicable Law; Forum. This Agreement is performable in the City of

 _____, North Carolina, and the laws of the State of North Carolina and applicable United
States federal law shall govern the rights and duties of the parties hereto and the validity,
enforcement and interpretation hereof. Obligors hereby irrevocably submit generally and
unconditionally for themselves and in respect of their property to the jurisdiction of any state
court, or any United States federal court, sitting in the State of North Carolina and to the
jurisdiction of any state court or any United States federal court, sitting in the state in which
any of the Property is located, over any suit, action or proceeding arising out of or relating to
this Agreement or the Loans. Each Obligor hereby irrevocably waives, to the fullest extent
permitted by law, any objection that such Obligor may now or hereafter have to the laying of venue
in any such court and any claim that any such court is an inconvenient forum. Each Obligor hereby
agrees and consents that, in addition to any methods of service or process provided for under
applicable law, all service of process in any such suit, action or proceeding in any state court,
or any United States federal court, sitting in the state specified above, may be made by certified
or registered mail, return receipt requested, directed to such Obligor at the address for notice to
such Obligor stated below, or at a subsequent address of which Agent received actual notice from
such Obligor in accordance with the Loan Documents, and service so made shall be complete five (5)
days after the same shall have been so mailed. Nothing herein shall affect the right of Agent to
serve process in any manner permitted by law or limit the right of Agent to bring proceedings
against any Obligor in any other court or jurisdiction.



14. Execution; Modification. This Agreement has been executed in a number of
identical counterparts, each of which shall be deemed an original for all purposes and all of which
constitute, collectively, one agreement. This Agreement may be amended only by an instrument in
writing intended for that purpose executed jointly by an authorized representative of each party
hereto.



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15. Dispute Resolution.



(a) Arbitration. Except to the extent expressly provided below, any Dispute (as
defined below) shall, upon the request of either party, be determined by binding arbitration in
accordance with the Federal Arbitration Act, Title 9, United States Code (or if not applicable, the
applicable state law), the then-current rules for arbitration of financial services disputes of the
American Arbitration Association, or any successor thereof (“AAA”), and the “Special Rules” set
forth below. “Dispute” means any controversy, claim or dispute between or among the parties to
this Agreement, including any controversy, claim or dispute arising out of or relating to (a) this
Agreement, (b) any other Loan Documents, (c) any related agreements or instruments, or (d) the
transaction contemplated herein or therein (including any claim based on or arising from an alleged
personal injury or business tort). In the event of any inconsistency, the Special Rules shall
control. The filing of a court action is not intended to constitute a waiver of the right of any
party, including the suing party, thereafter to require submittal of the Dispute to arbitration.
Any party to this Agreement may bring an action, including a summary or expedited proceeding, to
compel arbitration of any Dispute in any court having jurisdiction over such action. For the
purposes of this Dispute Resolution Section only, the terms “party” and “parties” shall include any
parent corporation, subsidiary or affiliate of Agent involved in the servicing, management or
administration of any obligation described in or evidenced by this Agreement, together with the
officers, employees, successors and assigns of each of the foregoing.




(b) Special Rules.




(i) The arbitration shall be conducted in any U.S. state where real or tangible
personal property collateral is located, or if there is no such collateral, in the city and
county where Agent is located pursuant to its address for notice purposes in this Agreement.




(ii) The arbitration shall be administered by AAA, who will appoint an arbitrator. If
AAA is unwilling or unable to administer or legally precluded from administering the
arbitration, or if AAA is unwilling or unable to enforce or legally precluded from enforcing
any and all provisions of this Dispute Resolution Section, then any party to this Agreement
may substitute another arbitration organization that has similar procedures to AAA and that
will observe and enforce any and all provisions of this Dispute Resolution Section. All
Disputes shall be determined by one arbitrator; however, if the amount in controversy in a
Dispute exceeds Five Million Dollars ($5,000,000), upon the request of any party, the
Dispute shall be decided by three arbitrators (for purposes of this Agreement, referred to
collectively as the “arbitrator”).




(iii) All arbitration hearings will be commenced within ninety (90) days of the demand
for arbitration and completed within ninety (90) days from the date of commencement;
provided, however, that upon a showing of good cause, the arbitrator shall be permitted to
extend the commencement of such hearing for up to an additional sixty (60) days.




(iv) The judgment and the award, if any, of the arbitrator shall be issued within
thirty (30) days of the close of the hearing. The arbitrator shall provide a concise
written statement setting forth the reasons for the judgment and for the award, if any. The
arbitration award, if any, may be submitted to any court having jurisdiction to be confirmed
and enforced, and such confirmation and enforcement shall not be subject to arbitration.




(v) The arbitrator will give effect to statutes of limitations and any waivers thereof
in determining the disposition of any Dispute and may dismiss one or more claims in the
arbitration on the basis that such claim or claims is or are barred. For purposes of the
application of the statute of limitations, the service on AAA under applicable AAA rules of
a notice of Dispute is the equivalent of the filing of a lawsuit.



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(vi) Any dispute concerning this arbitration provision, including any such dispute as
to the validity or enforceability of this provision, or whether a Dispute is arbitrable,
shall be determined by the arbitrator; provided, however, that the arbitrator shall not be
permitted to vary the express provisions of these Special Rules or the Reservations of
Rights in subsection (c) below.




(vii) The arbitrator shall have the power to award legal fees and costs pursuant to
the terms of this Agreement.




(viii) The arbitration will take place on an individual basis without reference to,
resort to, or consideration of any form of class or class action.



(c) Reservations of Rights. Nothing in this Agreement shall be deemed to (i) limit
the applicability of any otherwise applicable statutes of limitation and any waivers contained in
this Agreement, or (ii) apply to or limit the right of Agent (A) to exercise self help remedies
such as (but not limited to) setoff, or (B) to foreclose judicially or nonjudicially against any
real or personal property collateral, or to exercise judicial or nonjudicial power of sale rights,
(C) to obtain from a court provisional or ancillary remedies such as (but not limited to)
injunctive relief, writ of possession, prejudgment attachment, or the appointment of a receiver, or
(D) to pursue rights against a party to this Agreement in a third-party proceeding in any action
brought against Agent in a state, federal or international court, tribunal or hearing body
(including actions in specialty courts, such as bankruptcy and patent courts). Agent may exercise
the rights set forth in clauses (A) through (D), inclusive, before, during or after the pendency of
any arbitration proceeding brought pursuant to this Agreement. Neither the exercise of self help
remedies nor the institution or maintenance of an action for foreclosure or provisional or
ancillary remedies shall constitute a waiver of the right of any party, including the claimant in
any such action, to arbitrate the merits of the Dispute occasioning resort to such remedies. No
provision in the Loan Documents regarding submission to jurisdiction and/or venue in any court is
intended or shall be construed to be in derogation of the provisions in any Loan Document for
arbitration of any Dispute.



(d) Conflicting Provisions for Dispute Resolution. If there is any conflict between
the terms, conditions and provisions of this Section and those of any other provision or agreement
for arbitration or dispute resolution, the terms, conditions and provisions of this Section shall
prevail as to any Dispute arising out of or relating to (i) this Agreement, (ii) any other Loan
Document, (iii) any related agreements or instruments, or (iv) the transaction contemplated herein
or therein (including any claim based on or arising from an alleged personal injury or business
tort). In any other situation, if the resolution of a given Dispute is specifically governed by
another provision or agreement for arbitration or dispute resolution, the other provision or
agreement shall prevail with respect to said Dispute.



16. Entire Agreement. THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.



[Signature page follows.]



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Executed under seal and dated as of the date first written above.



	 	 	 	 	 
	 	BORROWER:



COGDELL SPENCER LP,

a Delaware limited partnership

 	 
	 	By:  	
 	(SEAL)
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	The address of Borrower is:

Cogdell Spencer LP

c/o Cogdell Spencer Inc.

4401 Barclay Downs Drive, Suite 300

Charlotte, North Carolina 28209-4670

Attention: Charles M. Handy, Chief Financial Officer

Telephone: (704) 940-2900

Facsimile: (704) 940-2959



GRANTOR:



[NAME OF PARTNERSHIP OR LLC],

a North Carolina limited [partnership/liability company]

 	 
	 	By:  	Cogdell Spencer Advisors
 	 
	 	 	Management, LLC, a Delaware limited
liability company, its [General Partner/	 
	 	 	Manager] 	 
	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	 	 	 
	 	(SEAL)

The address of Grantor is:

[Name of Partnership or LLC]

c/o Cogdell Spencer Inc.

4401 Barclay Downs Drive, Suite 300

Charlotte, North Carolina 28209-4670

Attention: Charles M. Handy, Chief Financial Officer

Telephone: (704) 940-2900

Facsimile: (704) 940-2959	 





 


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	 	AGENT:



BANK OF AMERICA, N.A.,

a national banking association

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	 	 	 
	 	(SEAL)

The address of Agent is:

Bank of America, N.A.

NC1-007-11-15

100 North Tryon Street

Charlotte, North Carolina 28255

Attention: Jack Redhead

Telephone: (980) 388-3809

Facsimile: (980) 683-5983	 






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EXHIBIT A




Description of the Property




Form of Environmental Indemnity Agreement




 


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EXHIBIT N




FORM OF MORTGAGE




See attached.




Form of Mortgage





 


N-1