Exhibit
10.1


 


 


AMENDED AND RESTATED UNSECURED REVOLVING CREDIT
AGREEMENT


 


DATED AS OF JUNE 30, 2003


 


AMONG


 


CENTERPOINT PROPERTIES TRUST, AS BORROWER,


 


BANC ONE CAPITAL MARKETS, INC.,


AS SOLE LEAD ARRANGER/BOOK MANAGER,


 


BANK ONE, NA, AS ADMINISTRATIVE AGENT AND LENDER,


 


BANK OF AMERICA, N.A. AS SYNDICATION AGENT AND
LENDER


 


WACHOVIA BANK, NATIONAL ASSOCIATION, AS SYNDICATION
AGENT AND LENDER


 


COMMERZBANK AG, NEW YORK BRANCH, AS DOCUMENTATION
AGENT AND LENDER,


 


SUNTRUST BANK, AS MANAGING AGENT AND LENDER,


AND


 


THE SEVERAL OTHER LENDERS

FROM TIME TO TIME PARTIES HERETO


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE
  I.  DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  ARTICLE
  II.  THE CREDIT

  	
  23

  
	
   

  	
   

  
	
  2.1

  	
  Commitment

  	
  23

  
	
  2.2

  	
  Final Principal
  Payment and Extension Option

  	
  23

  
	
  2.3

  	
  Ratable Loans

  	
  24

  
	
  2.4

  	
  Applicable
  Margins

  	
  24

  
	
  2.5

  	
  Facility Fee

  	
  25

  
	
  2.6

  	
  Other Fees

  	
  25

  
	
  2.7

  	
  Minimum Amount of Each
  Advance

  	
  25

  
	
  2.8

  	
  Optional Principal
  Payments

  	
  25

  
	
  2.9

  	
  Method
  of Selecting Types and Interest Periods for New Advances

  	
  26

  
	
  2.10

  	
  Conversion
  and Continuation of Outstanding Advances

  	
  26

  
	
  2.11

  	
  Changes
  in Interest Rate, Etc

  	
  27

  
	
  2.12

  	
  Rates Applicable After
  Default

  	
  27

  
	
  2.13

  	
  Swing Line
  Loans

  	
  28

  
	
  2.14

  	
  Competitive
  Bid Loans

  	
  29

  
	
  2.15

  	
  Fixed Rate
  Loans

  	
  33

  
	
  2.16

  	
  Method of
  Payment

  	
  33

  
	
  2.17

  	
  Notes; Telephonic Notices

  	
  34

  
	
  2.18

  	
  Interest
  Payment Dates; Interest and Fee Basis

  	
  34

  
	
  2.19

  	
  Notification of Advances, Interest Rates
  and Prepayments

  	
  34

  
	
  2.20

  	
  Lending
  Installations

  	
  35

  
	
  2.21

  	
  Non-Receipt
  of Funds by the Administrative Agent

  	
  35

  
	
  2.22

  	
  Voluntary
  Reduction of Aggregate Commitment Amount

  	
  36

  
	
  2.23

  	
  Increase in
  Aggregate Commitment Amount

  	
  36

  
	
  2.24

  	
  Usury

  	
  36

  
	
  2.25

  	
  Application of Moneys
  Received

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III.  THE LETTER OF CREDIT SUBFACILITY

  	
  38

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Obligation
  to Issue

  	
  38

  
	
  3.2

  	
  Types and
  Amounts

  	
  38

  
	
  3.3

  	
  Conditions

  	
  38

  
	
  3.4

  	
  Procedure
  for Issuance of Facility Letters of Credit

  	
  39

  
	
  3.5

  	
  Reimbursement
  Obligations; Duties of Issuing Bank

  	
  40

  
	
  3.6

  	
  Participation

  	
  41

  
	
  3.7

  	
  Payment of
  Reimbursement Obligations

  	
  42

  
	
  3.8

  	
  Compensation
  for Facility Letters of Credit

  	
  43

  
	
  3.9

  	
  Letter of Credit
  Collateral Account

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV.  YIELD PROTECTION; TAXES

  	
  43

  
	
   

  	
   

  
	
  4.1

  	
  Yield
  Protection

  	
  43

  
	
  4.2

  	
  Changes in
  Capital Adequacy Regulations

  	
  44

  
				



 


i

















 


	
  4.3

  	
  Availability of Types
  of Advances

  	
  45

  
	
  4.4

  	
  Funding
  Indemnification

  	
  45

  
	
  4.5

  	
  Taxes

  	
  45

  
	
  4.6

  	
  Lender
  Statements; Survival of Indemnity

  	
  47

  
	
  4.7

  	
  Limitation on
  Borrower’s Liability

  	
  47

  
	
   

  	
   

  
	
  ARTICLE
  V.  CONDITIONS PRECEDENT

  	
  48

  
	
   

  	
   

  
	
  5.1

  	
  Initial
  Advance

  	
  48

  
	
  5.2

  	
  Conditions to Each Advance,
  Issuance of Facility Letter of Credit and Continuation/Conversion

  	
  50

  
	
   

  	
   

  
	
  ARTICLE
  VI.  REPRESENTATIONS AND WARRANTIES

  	
  50

  
	
   

  	
   

  
	
  6.1

  	
  Existence

  	
  51

  
	
  6.2

  	
  Authorization and Validity

  	
  51

  
	
  6.3

  	
  No Conflict; Government
  Consent

  	
  51

  
	
  6.4

  	
  Financial
  Statements; Material Adverse Change

  	
  51

  
	
  6.5

  	
  Taxes

  	
  52

  
	
  6.6

  	
  Litigation and
  Contingent Obligations

  	
  52

  
	
  6.7

  	
  Subsidiaries

  	
  52

  
	
  6.8

  	
  ERISA

  	
  52

  
	
  6.9

  	
  Accuracy
  of Information

  	
  53

  
	
  6.10

  	
  Regulation U

  	
  53

  
	
  6.11

  	
  Material
  Agreements

  	
  53

  
	
  6.12

  	
  Compliance
  With Laws

  	
  54

  
	
  6.13

  	
  Ownership
  of Properties

  	
  54

  
	
  6.14

  	
  Investment
  Company Act

  	
  54

  
	
  6.15

  	
  Public Utility
  Holding Company Act

  	
  54

  
	
  6.16

  	
  Solvency

  	
  54

  
	
  6.17

  	
  Insurance

  	
  55

  
	
  6.18

  	
  NYSE and
  REIT Status

  	
  55

  
	
  6.19

  	
  Environmental
  Matters

  	
  56

  
	
  6.20

  	
  Licenses, etc

  	
  57

  
	
  6.21

  	
  Judgments

  	
  57

  
	
  6.22

  	
  Property
  Manager

  	
  57

  
	
  6.23

  	
  Updated
  Schedules

  	
  57

  
	
  6.24

  	
  Unencumbered
  Assets

  	
  57

  
	
  6.25

  	
  Reportable
  Transaction

  	
  60

  
	
   

  	
   

  
	
  ARTICLE
  VII.  COVENANTS

  	
  60

  
	
   

  	
   

  
	
  7.1

  	
  Financial
  Reporting

  	
  60

  
	
  7.2

  	
  Use of Proceeds

  	
  62

  
	
  7.3

  	
  Notice of
  Default

  	
  63

  
	
  7.4

  	
  Conduct
  of Business

  	
  63

  



 


ii

















 


	
  7.5

  	
  Taxes

  	
  64

  
	
  7.6

  	
  Insurance

  	
  64

  
	
  7.7

  	
  Compliance with
  Laws

  	
  65

  
	
  7.8

  	
  Maintenance of Properties

  	
  65

  
	
  7.9

  	
  Inspection

  	
  65

  
	
  7.10

  	
  Maintenance
  of Status

  	
  65

  
	
  7.11

  	
  Dividends

  	
  65

  
	
  7.12

  	
  Merger; Sale of Assets

  	
  66

  
	
  7.13

  	
  Transfers of
  Unencumbered Assets

  	
  66

  
	
  7.14

  	
  Ownership and Control
  of Borrower

  	
  67

  
	
  7.15

  	
  Subsidiaries,
  Qualifying Investment Affiliates and Special Qualifying Investment Affiliates

  	
  67

  
	
  7.16

  	
  Liens

  	
  67

  
	
  7.17

  	
  Affiliates

  	
  68

  
	
  7.18

  	
  Interest
  Rate Hedging

  	
  68

  
	
  7.19

  	
  Variable Interest
  Indebtedness

  	
  69

  
	
  7.20

  	
  Consolidated
  Net Worth

  	
  69

  
	
  7.21

  	
  Indebtedness and
  Cash Flow Covenants

  	
  69

  
	
  7.22

  	
  Environmental
  Matters

  	
  70

  
	
  7.23

  	
  Notification of Rating
  Change

  	
  71

  
	
  7.24

  	
  Maximum Revenue from
  Single Tenant

  	
  71

  
	
  7.25

  	
  Negative Pledge

  	
  71

  
	
  7.26

  	
  Manager

  	
  71

  
	
  7.27

  	
  Acceleration
  Notice

  	
  71

  
	
  7.28

  	
  Lien Searches; Title
  Searches

  	
  71

  
	
  7.29

  	
  Additional
  Covenants

  	
  72

  
	
  7.30

  	
  Calculation of
  Financial Covenants Upon Property Breaches

  	
  72

  
	
  7.31

  	
  Securitized Lease
  Transactions

  	
  72

  
	
   

  	
   

  
	
  ARTICLE
  VIII.  DEFAULTS

  	
  72

  
	
   

  	
   

  
	
  ARTICLE
  IX.  ACCELERATION, WAIVERS, AMENDMENTS
  AND REMEDIES

  	
  75

  
	
   

  	
   

  
	
  9.1

  	
  Acceleration

  	
  75

  
	
  9.2

  	
  Amendments, Waivers,
  Decisions

  	
  76

  
	
  9.3

  	
  Preservation
  of Rights

  	
  77

  
	
   

  	
   

  
	
  ARTICLE
  X.  GENERAL PROVISIONS

  	
  77

  
	
   

  	
   

  
	
  10.1

  	
  Survival of
  Representations

  	
  77

  
	
  10.2

  	
  Governmental
  Regulation

  	
  77

  
	
  10.3

  	
  Taxes

  	
  77

  
	
  10.4

  	
  Headings

  	
  77

  
	
  10.5

  	
  Entire
  Agreement

  	
  78

  
	
  10.6

  	
  Several
  Obligations; Benefits of this Agreement

  	
  78

  
	
  10.7

  	
  Expenses; Indemnification

  	
  78

  



 


iii

















 


	
  10.8

  	
  Numbers
  of Documents

  	
  79

  
	
  10.9

  	
  Accounting

  	
  79

  
	
  10.10

  	
  Severability of Provisions

  	
  79

  
	
  10.11

  	
  Nonliability
  of Lenders, Arranger, Administrative Agent, Documentation Agent, Managing
  Agent and Syndication Agent

  	
  79

  
	
  10.12

  	
  Publicity

  	
  79

  
	
  10.13

  	
  Brokers

  	
  79

  
	
  10.14

  	
  Confidentiality

  	
  80

  
	
  10.15

  	
  CHOICE OF LAW

  	
  80

  
	
  10.16

  	
  CONSENT
  TO JURISDICTION

  	
  80

  
	
  10.17

  	
  WAIVER OF
  JURY TRIAL

  	
  81

  
	
   

  	
   

  
	
  ARTICLE
  XI.  THE ADMINISTRATIVE AGENT

  	
  81

  
	
   

  	
   

  
	
  11.1

  	
  Appointment; Nature
  of Relationship

  	
  81

  
	
  11.2

  	
  Powers

  	
  82

  
	
  11.3

  	
  General
  Immunity

  	
  82

  
	
  11.4

  	
  No Responsibility for
  Loans, Recitals, etc; Delivery of Information

  	
  82

  
	
  11.5

  	
  Action on Instructions
  of Lenders

  	
  82

  
	
  11.6

  	
  Employment of
  Administrative Agents and Counsel

  	
  83

  
	
  11.7

  	
  Reliance on Documents;
  Counsel

  	
  83

  
	
  11.8

  	
  Administrative
  Agent’s Reimbursement and Indemnification

  	
  83

  
	
  11.9

  	
  Notice of Default

  	
  84

  
	
  11.10

  	
  Rights as
  a Lender

  	
  84

  
	
  11.11

  	
  Lender
  Credit Decision

  	
  84

  
	
  11.12

  	
  Successor
  Administrative Agent

  	
  84

  
	
   

  	
  Administrative Agent
  and Arranger Fees

  	
   

  
	
  11.13

  	
  Delegation
  to Affiliates

  	
  85

  
	
  11.14

  	
  Notice
  of Defaults

  	
  86

  
	
  11.15

  	
  Requests
  for Approval

  	
  86

  
	
  11.16

  	
  Copies
  of Documents

  	
  86

  
	
  11.17

  	
  Defaulting
  Lenders

  	
  86

  
	
   

  	
   

  
	
  ARTICLE
  XII.  RATABLE PAYMENTS

  	
  87

  
	
   

  	
   

  
	
  12.1

  	
  Intentionally
  Deleted

  	
  87

  
	
  12.2

  	
  Ratable
  Payments

  	
  87

  
	
   

  	
   

  
	
  ARTICLE
  XIII.  BENEFIT OF AGREEMENT;
  ASSIGNMENTS; PARTICIPATIONS

  	
  87

  
	
   

  	
   

  	
   

  
	
  13.1

  	
  Successors
  and Assigns

  	
  87

  
	
  13.2

  	
  Participations

  	
   

  
	
  13.3

  	
  Assignments

  	
  88

  
	
  13.4

  	
  Designation of Lender to
  Make Competitive Bid Loans

  	
  89

  
	
  13.5

  	
  Dissemination of
  Information

  	
  90

  
	
  13.6

  	
  Tax Treatment

  	
  90

  



 


iv

















 


	
  13.7

  	
  Possession of
  Loan Documents and Register

  	
  90

  
	
   

  	
   

  
	
  ARTICLE
  XIV.  NOTICES

  	
  91

  
	
   

  	
   

  
	
  14.1

  	
  Giving Notice

  	
  91

  
	
  14.2

  	
  Change of
  Address

  	
  91

  
	
  14.3

  	
  Accounts

  	
  91

  
	
   

  	
   

  
	
  ARTICLE
  XV.  COUNTERPARTS

  	
  91

  



 


v

















 


EXHIBITS


 


	
  Exhibit A

  	
  Pricing Grid

  
	
  Exhibit B-1

  	
  Form of Note

  
	
  Exhibit B-2

  	
  Competitive Bid Notes

  
	
  Exhibit C-1

  	
  Competitive Bid Quote
  Request

  
	
  Exhibit C-2

  	
  Invitation to Submit
  Competitive Bids

  
	
  Exhibit C-3

  	
  Competitive Bid Quote

  
	
  Exhibit D

  	
  Form of Opinion

  
	
  Exhibit E

  	
  Form of Compliance
  Certificate

  
	
  Exhibit F

  	
  Form of Assignment
  Agreement

  
	
  Exhibit G

  	
  Form of Loan/Credit Related
  Money Transfer Instruction

  
	
  Exhibit H

  	
  Minimum Specifications
  for Environmental Investigations

  
	
  Exhibit I

  	
  Form of Designation
  Agreement

  
	
  Exhibit J

  	
  Form of Amendment
  Regarding Increase

  
	
  Exhibit K

  	
  Commitment Amounts and
  Percentages

  
	
   

  	
   

  
	
  Schedules:

  	
   

  
	
  Schedule 1

  	
  Subsidiaries and Other
  Investments

  
	
  Schedule 2

  	
  Unencumbered Assets

  
	
  Schedule 3

  	
  Indebtedness and Liens

  
	
  Schedule 4

  	
  Plans and Multiemployer
  Plans

  
	
  Schedule 5

  	
  Environmental
  Disclosures

  
	
  Schedule 6

  	
  Noncompliance with Laws

  
	
  Schedule 7

  	
  Litigation and Investigations

  
	
  Schedule 8

  	
  Contingent Obligations

  
	
  Schedule 9

  	
  Indebtedness Defaults

  



 


vi

















 


AMENDED AND RESTATED UNSECURED
REVOLVING CREDIT AGREEMENT


 


This Amended and Restated Unsecured Revolving Credit
Agreement (“Agreement”), dated as of June 30, 2003, is among CENTERPOINT
PROPERTIES TRUST, a Maryland real estate investment trust (the “Borrower”), the
several banks, financial institutions and other entities from time to time
parties to this Agreement (collectively, the “Lenders”), BANK ONE, NA, not
individually, but as “Administrative Agent”, BANK OF AMERICA, N.A. AND WACHOVIA
BANK, NATIONAL ASSOCIATION, each as “Syndication Agent”, COMMERZBANK AG, NEW
YORK BRANCH, as “Documentation Agent” and SUNTRUST BANK, as “Managing Agent.”


 


RECITALS


 


A.            The
Borrower is primarily engaged in the business of purchasing, developing,
owning, operating, leasing, managing, financing and selling
warehouse/industrial properties.  It
also currently owns certain Non-Industrial Properties (as hereinafter defined).


 


B.            The
Borrower’s common shares of beneficial interest are listed on the New York
Stock Exchange, and the Borrower is qualified as a real estate investment
trust.


 


C.            The
Borrower, the Administrative Agent, and certain of the Lenders entered into an
Unsecured Revolving Credit Agreement dated as of August 23, 2000, as
previously amended (the “Original Credit Agreement”) pursuant to which the
Lenders that are parties thereto agreed to make loans to the Borrower in the
maximum aggregate amount of $350,000,000 (the “Prior Facility”).


 


D.            The
Borrower has requested that the Lenders extend loans to the Borrower in the
aggregate amount of $350,000,000 (with possible future increases to an amount
up to $500,000,000) pursuant to the terms of this Agreement (the “Facility”),
and that the Administrative Agent act as administrative agent for the Lenders
for the Lenders and that the Prior Facility be terminated.  The Administrative Agent and the Lenders
have agreed to do so.


 


E.             Banc
One Capital Markets, Inc. has acted as sole lead arranger/book manager and
arranged the Facility between the Lenders and Borrower and coordinated the
closing of the Facility.


 


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


 


ARTICLE I.


 


DEFINITIONS


 


As used in this Agreement:


 


“Absolute Interest Period” means, with respect to a
Competitive Bid Loan made at an Absolute Rate, a period of up to 180 days as
requested by Borrower in a Competitive Bid Quote Request and confirmed by a
Lender in a Competitive Bid Quote but in no event extending


 

















 


beyond the Facility Termination Date. 
If an Absolute Interest Period would end on a day which is not a
Business Day, such Absolute Interest Period shall end on the next succeeding
Business Day.


 


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


 


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


 


“Administrative Agent’s Fee” is defined in Section
2.6.


 


“Adjusted Prime Rate” means, for any day, a rate per
annum equal to (i) the Prime Rate for such day plus (ii) Prime Applicable
Margin for such day, in each case changing when and as the Prime Rate changes.


 


“Advance” means a borrowing hereunder consisting of
the aggregate amount of the several Loans made by the Lenders to the Borrower
of the same Type (including Swing Line Loans) and, in the case of LIBOR
Advances, for the same Interest Period, including Reimbursement Obligations.


 


“Affiliate” of any Person means any other Person
directly or indirectly controlling, controlled by or under common control with
such Person.  A Person shall be deemed
to control another Person if the controlling Person owns 10% or more of any
class of voting securities (or other ownership interests) of the controlled
Person or possesses, directly or indirectly, the power to direct or cause the
direction of the management or policies of the controlled Person, whether through
ownership of stock, by contract or otherwise.


 


“Aggregate Commitment” means the aggregate of the
Commitments of all the Lenders, which initially shall be $350,000,000, subject
to decreases as provided in Section 2.22 and increases as provided in
Section 2.23 and which shall otherwise only be increased with the consent
of all Lenders.


 


“Aggregate Outstanding Credit Exposure” means, at any
time, the aggregate of the Outstanding Credit Exposure of all the Lenders.


 


“Agreement” means this Amended and Restated Unsecured
Revolving Credit Agreement, as it may be amended or modified and in effect from
time to time.


 


“Applicable Cap Rate” means 10.25% for all
Non-industrial Properties and 9.00% for all industrial Properties, during the
initial term of the Facility and 9.25% for all industrial Properties during the
extension period.


 


“Applicable Laws” is defined in Section 6.24(c).


 


“Applicable Margin” means the applicable margin set
forth in the table in Section 2.4 used in calculating the interest rate
applicable to the various Types of Advances, which shall


 


2

















 


vary from time to time in accordance with the long term unsecured debt
rating of Borrower or the rating of this Facility in the manner set forth in
Section 2.4.


 


“Arranger” means Banc One Capital Markets, Inc., a
Delaware corporation, and its successors in its capacity as Lead Arranger and
Sole Book Runner.


 


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


 


“Assets Under Development” means, as of any date of
determination, each Project and expansion area of existing Projects owned by
the Borrower or an Investment Affiliate which is (i) treated as an asset under
development under GAAP, (ii) which is located in the United States of America,
and (iii) which has been designated by the Borrower in a written notice to
Administrative Agent as an “Asset Under Development” for purposes of this
Agreement, provided, however, in no event shall Assets Under Development include
any Project or any expansion area of an existing Project for more than 540 days
or any Project or expansion of an existing Project which is encumbered by a
Qualified Mortgage as designated by the Borrower.  Upon written designation to Administrative Agent delivered by
Borrower during such 540-day period, any Project or expansion of an existing
Project which has previously been designated as an “Asset Under Development”
shall be removed from such category. 
Any Project designated as an Asset Under Development shall not at the
same time be included as a Preleased Assets Under Development nor as a Pre-Sold
Asset Under Development.


 


“Assignment” as defined in Section 13.3.


 


“Authorized Officer” means with respect to the
Borrower any of the President, Executive Vice President, Chief Operating
Officer, Chief Financial Officer or Treasurer, acting singly.


 


“Available Aggregate Commitment” means, at any time,
the Aggregate Commitment then in effect minus the Aggregate Outstanding Credit
Exposure at such time.


 


“Borrower” means CenterPoint Properties Trust, and its
successors and permitted assigns.


 


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


 


“Borrowing Notice” is defined in Section 2.9.


 


“Break-up Fee” means the amount due pursuant to Section 4.4
in the event a LIBOR Advance or Fixed Rate Advance is prepaid.


 


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


 


3

















 


“Capital Expenditure Reserve Amount” means, for any
period, 5¢ per square foot of leasable space in Unencumbered Assets (on an
annualized basis).


 


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


 


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


 


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


 


“Cash Equivalents” means, as of any date, (i)
securities issued or directly and fully guaranteed or insured by the United
States Government or any agency or instrumentality thereof having maturities of
not more than one year from such date, (ii) time deposits and certificates of
deposit having maturities of not more than one year from such date and issued
by any domestic commercial bank having (A) senior long-term unsecured debt
rated at least A or the equivalent thereof by S&P or A2 or the equivalent
thereof by Moody’s and (B) capital and surplus in excess of $100,000,000, (iii)
commercial paper rated at least A-1 or the equivalent thereof by S&P
or P-1 or the equivalent thereof by Moody’s and in either case
maturing within 120 days from such date; and (iv) shares of any money market
mutual fund rated at least AAA or the equivalent thereof by S&P or at least
Aaa or the equivalent thereof by Moody’s.


 


“CDC” means CenterPoint Development Corporation.


 


“CenterPoint Venture” means CenterPoint Venture, LLC,
a joint venture between CenterPoint Realty Services Corporation, a subsidiary
of Borrower, and CalEast Industrial Investors, LLC.


 


“Closing Date” means the date of this Agreement.


 


“CNT Venture Loan” means any indebtedness for borrowed
money extended by Borrower to a Permitted CalEast Entity provided Borrower has
the right, exercisable at any time during the term of the loan, to cause any
property owned by such Permitted CalEast Entity to be put or sold to
CenterPoint Venture for an amount not less than the amount of the CNT Venture
Loan attributable to such property.


 


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


 


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


 


4

















 


“Competitive Bid Borrowing Notice” is defined in
Section 2.14(f).


 


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


 


“Competitive Bid Loan” is a Loan made pursuant to
Section 2.14 hereof.


 


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


 


“Competitive Bid Quote” means a response submitted by
a Lender to the Administrative Agent or the Borrower, as the case may be with
respect to an Invitation for Competitive Bid Quotes in the form attached as
Exhibit C-3.


 


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


 


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


 


“Condemnation” is defined in Section 8.9.


 


“Consolidated Net Worth” means, as of any date of
determination, an amount equal to (a) Market Capitalization as of such
date minus (b) Total Liabilities (other than Excludable Convertible Securities)
as of such date.


 


“Consolidated Secured Indebtedness” means, as of any
date of determination, the sum of (a) the aggregate principal amount of
all Indebtedness of the Borrower and its Subsidiaries outstanding at such date
which is secured by a Lien on any asset of the Borrower or any Subsidiary,
including without limitation loans secured by mortgages, stock, or partnership
interests, (b) the Borrower’s pro rata share (based on economic interest)
of any secured debt of Investment Affiliates, without duplication of any
Indebtedness included under clause (a), after eliminating intercompany items,
and (c) the aggregate principal amount of all unsecured Indebtedness of the
Subsidiaries of Borrower that have not furnished guaranties of the Facility.


 


“Consolidated Senior Unsecured Indebtedness” means, as
of any date of determination, the sum of (a) the aggregate principal
amount of all Indebtedness of the Borrower and its Subsidiaries outstanding at
such date (excluding Indebtedness which is contractually subordinated to the
Indebtedness of the Borrower and its Subsidiaries under the Loan Documents on
customary terms acceptable to the Administrative Agent) which does not
constitute Consolidated Secured Indebtedness, and (b) the Borrower’s pro
rata share (based on economic interest) of any unsecured debt of Investment
Affiliates that own assets included in the calculation of Value of Unencumbered
Assets, without duplication of any Indebtedness included under clause (a),
after eliminating intercompany items.


 


5

















 


“Consolidated Total Indebtedness” means, as of any
date of determination, all Indebtedness of the Borrower and its Subsidiaries
outstanding at such date, determined on a consolidated basis in accordance with
GAAP, after eliminating intercompany items.


 


“Consolidated Unsecured Indebtedness” means, as of any
date of determination, the sum of the aggregate principal amount of all
Indebtedness for borrowed money of the Borrower and its Subsidiaries outstanding
at such date which does not constitute Consolidated Secured Indebtedness, after
eliminating intercompany items.


 


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


 


“Conversion/Continuation Notice” is defined in
Section 2.10.


 


“CRS” means CenterPoint Realty Services Corporation.


 


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


 


“Debt-Type Preferred Stock” means, for any Person, any
preferred stock issued by such Person which is not typical preferred stock but
instead is both (i) redeemable by the holders thereof on any fixed date or
upon the occurrence of any event and (ii) as to payment of dividends or
amounts on liquidation, either guaranteed by any direct or indirect subsidiary
of such Person or secured by any property of such Person or any direct or
indirect subsidiary of such Person.


 


“Debt-Type Preferred Stock Expense” for any period for
any Person, the aggregate dividend payments due to the holders of Debt-Type
Preferred Stock of such Person, whether payable in cash or in kind, and whether
or not actually paid during such period.


 


“DECCA Loan” means that certain loan made by the
Department of Commerce and Community Affairs to the Village of Elwood for the
construction of sewer and water improvements relative to the CenterPoint
Intermodal Center, which obligations of the Village of Elwood will be supported
by Borrower pursuant to a separate Support Agreement executed by Borrower.


 


“Default” means an event of default described in
Article VIII.


 


6

















 


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


 


“Designated Lender” means any Person who has been
designated by a Lender to fund Competitive Bid Loans.


 


“Designating Lender” is defined in Section 13.4.


 


“Designation Agreement” means a designation agreement
entered into by a Lender (other than a Designated Lender) and a Designated
Lender, and accepted by the Administrative Agent and Borrower, in substantially
the form of Exhibit I hereto.


 


“Developable Land” means land owned by Borrower or an
Investment Affiliate which is not currently designated as an Asset Under
Development but which is zoned for its intended use, has access, direct or
indirect, to all necessary utilities, has access, direct or indirect, to publicly
dedicated streets, and is reasonably suitable for the commencement of
development in all material respects.


 


“EBITDA” means income before extraordinary items (but
after the impact of minority interests and reduced to eliminate any income from
Investment Affiliates), as reported by the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP (provided, however that no income
from the TIF Notes shall be included in the calculation of EBITDA to the extent
it is required to be paid to the holders of the TIF Certificates), plus
Interest Expense, depreciation, amortization and income tax (if any) expense
plus a percentage of such income (adjusted as described above) of any
Investment Affiliate equal to the allocable economic interest in such
Investment Affiliate held by the Borrower and any Subsidiaries, in the
aggregate (provided that no item of income or expense shall be included more
than once in such calculation even if it falls within more than one of the
foregoing categories).


 


“Environmental Laws” means any and all Federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority having jurisdiction
over the Borrower, its Subsidiaries or Investment Affiliates, or their
respective assets, and regulating or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may at any
time hereafter be in effect, in each case to the extent the foregoing are applicable
to the operations of the Borrower, any Investment Affiliate, or any Subsidiary
or any of their respective assets or Properties.


 


“Equity Residual” is defined in the definition of
Securitized Lease Transaction.


 


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


 


“Excludable Convertible Securities” means convertible
subordinated debt instruments which can be converted by the holder into common
shares of the Borrower at a price which is less than the market price for such
shares as of the end of the applicable quarter or which were converted during
such quarter.


 


7

















 


“Excluded Taxes” means, in the case of each Lender or
applicable Lending Installation and the Administrative Agent, taxes imposed on
its overall net income and franchise taxes imposed on it.


 


“Facility” is defined in Recital D.


 


“Facility Fee” is defined in Section 2.5.


 


“Facility Letter of Credit” means a Letter of Credit
issued hereunder.


 


“Facility Letter of Credit Obligations” means, as at
the time of determination thereof, all liabilities, whether actual or
contingent, without duplication, of the Borrower with respect to Facility
Letters of Credit, including the aggregate undrawn face amount of the then
outstanding Facility Letters of Credit, but not including Reimbursement
Obligations.


 


“Facility Termination Date” means June 30, 2006,
subject to extension pursuant to the terms and conditions of Section 2.2
hereof or such earlier date on which the principal balance of the Facility and
all other sums due in connection with the Facility shall be due as a result of
the acceleration of the Facility.


 


“Federal Funds Effective Rate” means, for any day, an
interest rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published for such day (or, if such
day is not a Business Day, for the immediately preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations at approximately 10
a.m. (Chicago time) on such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent in its sole discretion.


 


“Financeable Ground Lease” means, a ground lease
satisfactory to the Required Lenders and the Administrative Agent’s counsel in
their reasonable discretion, which must provide protections for a potential
leasehold mortgagee (“Mortgagee”) which include, among other things (i) a
remaining term  of no less than 25 years
from the Closing Date, (ii) that the lease will not be terminated until
the Mortgagee has received notice of a default and has had a reasonable
opportunity to cure or complete foreclosure, and fails to do so, (iii) a
new lease on the same terms to the Mortgagee as tenant if the ground lease is
terminated for any reason, (iv) non-merger of the fee and leasehold
estates, (v) free transferability of the tenant’s interest under the
ground lease and (vi) that insurance proceeds and condemnation awards
(from the fee interest as well as the leasehold interest) will be applied
pursuant to the terms of a leasehold mortgage.


 


“Fitch” means Fitch Ratings Ltd.


 


“Fixed Charges” for any fiscal quarter means the sum
of (i) Debt Service for such period, plus (ii) dividends and distributions on
preferred units or preferred stock payable by the Borrower and its consolidated
Subsidiaries for such period (including Borrower’s pro rata share based on
economic interest of preferred dividends and distributions of Investment
Affiliates), plus (iii) ground lease rents payable by Borrower and its
consolidated Subsidiaries (including Borrower’s pro rata share (based on
economic interest) of ground lease rent payable by Investment Affiliates).


 


8

















 


“Fixed Rate” as defined in Section 2.15.


 


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


 


“Fully Diluted Debt Service” means Debt Service less
the amount of Debt Service attributable to instruments which as of the end of
the applicable quarter are Excludable Convertible Securities.


 


“Funded Percentage” means, with respect to any Lender
at any time, a percentage equal to a fraction the numerator of which is the
amount actually disbursed and outstanding to Borrower by such Lender at such
time (including Swing Line Loans and Competitive Bid Loans), and the
denominator of which is the total amount disbursed and outstanding to Borrower
by all of the Lenders at such time (including Swing Line Loans and Competitive
Bid Loans).


 


“Funds From Operations” means, for any period, net
income for such period before depreciation and amortization, gains or losses
from extraordinary items (but including gains or losses on sales of real estate
in the ordinary course of business, e.g. build to suits), gains or losses on investments
in marketable securities and any provisions/benefits for income taxes for such
period, and after adjustments for Investment Affiliates, including joint
ventures.


 


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


 


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


 


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


 


9

















 


guaranteeing person’s maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.  Notwithstanding the foregoing, Guarantee
Obligations shall not include obligations in connection with the DECCA Loan
until such time as Borrower is required to record and/or reserve for such
obligation in accordance with GAAP, and the amount of the DECCA Loan included
in Guaranteed Obligations shall be the amount Borrower is required to record
and/or reserve in accordance with GAAP from time to time.


 


“Indebtedness” of any Person at any date means without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of
property or services (other than current trade liabilities and other accounts
payable, and accrued expenses incurred in the ordinary course of business and
payable in accordance with customary practices), to the extent such obligations
constitute indebtedness for the purposes of GAAP, (c) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument (excluding indebtedness related to the TIF Certificates), (d) all
Capitalized Lease Obligations, (e) all obligations of such Person in
respect of acceptances issued or created for the account of such Person,
(f) all Guarantee Obligations of such Person (excluding in any calculation
of consolidated indebtedness of the Borrower, Guarantee Obligations of the
Borrower in respect of primary obligations of any Subsidiary), (g) all
reimbursement obligations of such Person for Letters of Credit and other
contingent liabilities (excluding the DECCA Loan except to the extent included
as a Guarantee Obligation), (h) all liabilities secured by any Lien (other
than liens for taxes not yet due and payable) on any property owned by such
Person even though such Person has not assumed or otherwise become liable for
the payment thereof, (i) any repurchase obligation or liability of such
Person or any of its Subsidiaries with respect to accounts or notes receivable
sold by such Person or any of its Subsidiaries, (j) Debt Type Preferred
Stock, (k) such Person’s pro rata share (based on economic interest) of
debt in Investment Affiliates and (l) 100% of any loans where such Person is
liable as a general partner, provided however that Indebtedness shall not
include Excludable Convertible Securities or ground lease payments (other than
Capitalized Lease Obligations).


 


“Interest Expense” means all interest expense of the
Borrower and its Subsidiaries determined in accordance with GAAP (other than
interest expense associate with the TIF Certificates to the extent such amount
was deducted from income from the TIF Notes in determining EBITDA) plus
(i) capitalized interest not covered by an interest reserve from a loan
facility, plus (ii) the allocable portion (based on liability) of any
accrued or paid interest incurred on any obligation for which the Borrower is
wholly or partially liable under repayment, interest carry, or performance
guarantees, or other relevant liabilities, plus (iii) the allocable
percentage of any accrued or paid interest incurred on any Indebtedness of any
Investment Affiliate, whether recourse or non-recourse, equal to the applicable
economic interest in such Investment Affiliate held by the Borrower and any
Subsidiaries, in the aggregate, plus (iv) Debt-Type Preferred Stock
Expense of Borrower, its Subsidiaries, and the allocable portion (based on
economic interest) of Debt-Type Preferred Stock Expense of Investment
Affiliates, provided that no expense shall be included more than once in such
calculation even if it falls within more than one of the foregoing categories.


 


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


 


“Investment” of a Person means any loan, advance
(other than commission, travel and similar advances to officers and employees
made in the ordinary course of business and other


 


10

















 


than advances to, or deposits with, contractors and suppliers in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), deposit account or contribution of capital by such Person to any other
Person or any investment in, or purchase or other acquisition of, the stock,
partnership interests, notes, debentures or other securities of any other
Person made by such Person.


 


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


 


“Invitation for Competitive Bid Quotes” means a
written notice to the Lenders from the Administrative Agent in the form
attached as Exhibit C-2 for Competitive Bid Loans made pursuant to
Section 2.14.


 


“Issuance Date” as defined in Section 3.4(a)(2).


 


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


 


“Issuing Bank” means, with respect to each Facility
Letter of Credit, any Lender which issues such Facility Letter of Credit.


 


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


 


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


 


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


 


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


 


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


 


“LIBOR Advance” means an Advance which bears interest
at a LIBOR Rate, whether a ratable Advance based on the LIBOR Applicable Margin
or a Competitive Bid Loan based on a Competitive LIBOR Margin.


 


“LIBOR Applicable Margin” means, as of any date with
respect to any LIBOR Advance, the Applicable Margin in effect for such LIBOR
Advance as determined in accordance with Section 2.4 hereof.


 


“LIBOR Base Rate” means the offered rate for the
period equal to or next greater than the Interest Period for U.S. Dollar
deposits of not less than $1,000,000.00 as of 11:00 A.M. City of London,
England time two Business Days prior to the first day of the Interest Period as
shown on the display designated as “British Bankers Association Interest
Settlement Rates” on Reuters for the purpose of displaying such rate.  In the event that such rate is not available
on Reuters, then


 


11

















 


such offered rate shall be otherwise independently determined by
Administrative Agent from an alternate, substantially similar independent
source available to Administrative Agent or shall be calculated by Administrative
Agent by a substantially similar methodology as that theretofore used to
determine such offered rate.  The LIBOR
Base Rate shall be rounded to the next higher multiple of 1/16 of 1% if the
rate is not such a multiple.


 


“LIBOR Interest Period” means, with respect to a LIBOR
Advance, a period of one, two, three or six months commencing on a Business Day
selected by the Borrower pursuant to this Agreement.  Such LIBOR Interest Period with respect to a LIBOR Advance shall
end on (but exclude) the day which corresponds numerically to such date one,
two, three or six months thereafter, provided, however, that if there is no
such numerically corresponding day in such next, second, third or sixth
succeeding month, such LIBOR Interest Period shall end on the last Business Day
of such next, second, third or sixth succeeding month.  If a LIBOR Interest Period would otherwise
end on a day which is not a Business Day, such LIBOR Interest Period shall end
on the next succeeding Business Day, provided, however, that if said next
succeeding Business Day falls in a new calendar month, such LIBOR Interest
Period shall end on the immediately preceding Business Day.  If Borrower and Lenders agree on a Fixed
Rate Advance then reference herein to LIBOR Interest Period shall also include
the applicable interest period agreed upon among Borrower and Lenders for the
Fixed Rate Advance.


 


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


 


“LIBOR Rate” means, with respect to a LIBOR Advance
for the relevant LIBOR Interest Period, the sum of (i) the quotient of (a) the
LIBOR Base Rate applicable to such LIBOR Interest Period, divided by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to such LIBOR
Interest Period, plus (ii) the LIBOR Applicable Margin in effect on the
day that such LIBOR Base Rate was determined.


 


“Lien” means any lien (statutory or other), mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement but excluding the leasehold interest of a lessee in a lease
that is not a Capitalized Lease).


 


“Like-Kind Exchange” means any exchange of like-kind
properties in accordance with Section 1031 of the Code.


 


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


 


“Loan Documents” means this Agreement, the Notes, and
any guaranty or other document executed and delivered by the Borrower or a
Qualifying Investment Affiliate or Special Qualifying Investment Affiliate from
time to time and evidencing, securing or guaranteeing payment of indebtedness
or obligations incurred by the Borrower under this Agreement, as any of the
foregoing may be amended or modified from time to time.


 


“Market Capitalization” means, without duplication,
(a) Total Property Operating Income (allocated appropriately by category
of Property) capitalized at the Applicable Cap Rates for each Property type,
plus (b) other income (other than income derived from Qualified Mortgages


 


12

















 


and Cash and Cash Equivalents and income from the TIF Notes that is
required to be paid to the holders of the TIF Certificates) capitalized at 15%,
plus (c) the Value of Qualified Mortgages, plus (d) 100% of the Value
of Preleased Assets Under Development and Presold Assets Under Development, but
in no event shall the amount of Market Capitalization attributable to Preleased
Assets Under Development and Presold Assets Under Development exceed
$225,000,000 for purposes of calculating Market Capitalization, plus (e) 60% of
the Value of Assets Under Development, but in no event shall the amount of
Market Capitalization attributable to Assets Under Development exceed
$100,000,000 for purposes of calculating Market Capitalization, plus
(f) the amount of any Unrestricted Cash and Cash Equivalents owned by
Borrower and its Subsidiaries and the pro rata share of Unrestricted Cash and
Cash Equivalents owned by Investment Affiliates, plus (g) 50% of the Value of
Developable Land, but in no event shall the Market Capitalization attributable
to Developable Land exceed $50,000,000, plus (h) 25% of the Value of
Unimproved Land but in no event shall the Market Capitalization attributable to
Unimproved Land exceed $25,000,000, plus, (i) 100% of the Value of CNT Venture
Loans and Value of Option Loans together but in no event shall the Market
Capitalization attributable to CNT Venture Loans and Option Loans together
exceed 10% of the total Market Capitalization. 
Market Capitalization shall be determined based on the results of the
most recent fiscal quarter as appropriately annualized in the case of items (a)
and (b) in the foregoing definition.


 


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


 


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


 


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


 


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


 


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


 


“Non-industrial Properties” means three retail
properties having approximately 61,183 square feet of gross leasable area and a
parking lot located in the Naperville Business Park.


 


“Note” means a promissory note, in substantially the
form of Exhibit B-1 hereto, duly executed by the Borrower and payable to
the order of a Lender in the amount of its Commitment, including any amendment,
modification, renewal or replacement of such promissory note or a competitive
bid note, in substantially the form of Exhibit B-2 hereto, duly executed
by the


 


13

















 


Borrower and payable to the order of a Competitive Bid Lender, including
any amendment, modification, renewal or replacement of such note.


 


“Notice of Assignment” is defined in
Section 13.3.2.


 


“Obligations” means all unpaid principal of and
accrued and unpaid interest on the Notes, the Facility Letter of Credit
Obligations and all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Borrower or if and to the extent
applicable, any Qualifying Investment Affiliates or Special Qualifying
Investment Affiliates to the Lenders or to any Lender, the Administrative
Agent, or any indemnified party hereunder arising under the Loan Documents.


 


“Option Loan” means any indebtedness for borrowed
money extended by Borrower to any single purpose entity that owns one or more
industrial properties provided Borrower has the right, exercisable at any time
during the term of the loan, to cause any property owned by such entity to be
put or sold, directly or indirectly, in whole or in part, to Borrower for the
same price as was paid by the single purpose entity when it acquired the
property, and Borrower has management control of any assets put or sold,
directly or indirectly, in whole or in part, to Borrower.  The owner of the single purpose entity must
be rated at least BBB by S&P’s and at least Baa2 by Moody’s and be
reasonably acceptable to the Required Lenders. 
Legg Mason Wood Walker, Incorporated is hereby approved as an acceptable
owner of such single purpose entities so long as it continues to maintain
ratings of at least BBB by S&P’s and Baa2 by Moody’s.  In no event shall the single purpose entity
have Indebtedness other than the Option Loan nor shall the property owned by
such entity be subject to any Lien securing any Indebtedness other than the Option
Loan.


 


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


 


“Outstanding Credit Exposure” means, as to any Lender
at any time, the sum of (i) the aggregate principal amount of its Revolving
Loans outstanding at such time, plus (ii) an amount equal to its Percentage of
the aggregate principal amount of Swing Line Loans outstanding at such time,
plus (iii) an amount equal to its Percentage of Facility Letter of Credit
Obligations, plus (iv) an amount equal to the aggregate principal amount
of such Lender’s  Competitive Bid Loans
outstanding at such time.


 


“Participants” is defined in Section 13.2.1.


 


“Payment Date” means, with respect to the payment of
interest accrued on any Prime Advance or any Fixed Rate Advance, the first
Business Day of each calendar month (and in addition the last day of the applicable
interest period for a Fixed Rate Advance), and with respect to the payment of
interest accrued on any LIBOR Advance, the last day of the applicable LIBOR
Interest Period, and if the length of the LIBOR Interest Period is greater than
3 months, interest shall also be payable every 3 months during the term of such
LIBOR Interest Period.


 


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


 


“Percentage” means for each Lender the percentage of
the Aggregate Commitment allocated to such Lender as set forth in
Exhibit K, as such Percentage may be changed from time to time.


 


14

















 


“Permitted CalEast Entity” means any single purpose
entity with no indebtedness other than a CNT Venture Loan that owns one or more
industrial properties and that is a wholly owned subsidiary of CalEast
Industrial Investors, L.L.C., a California limited liability company.


 


“Permitted Liens” are defined in Section 7.16.


 


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


 


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


 


“Preleased Assets Under Development” means, as of any
date of determination, any Project or Rail Facility owned by Borrower or an
Investment Affiliate (i) which is then treated as an asset under development
under GAAP, (ii) which is located in the United States of America (iii) which
has been preleased under binding leases to unaffiliated tenants to the extent
of at least seventy-five percent (75%) of the projected gross leasable area of
such Project and (iv) which has been designated by Borrower in a written notice
to Administrative Agent as a “Preleased Asset Under Development” for purposes
of this Agreement, provided however, (a) in no event shall any Project or Rail
Facility be included in such category of “Preleased Assets Under Development”
for more than five hundred forty (540) days after construction of such asset
commenced and (b) upon written designation to Administrative Agent delivered by
Borrower during such 540-day period, any Project or Rail Facility which has
previously been designated as a “Preleased Asset Under Development”, shall be
removed from such category.  Upon the
earlier to occur of (x) the expiration of any above-described 540-day period or
(y) Administrative Agent’s receipt of Borrower’s written designation in
accordance with (b) above, any Project or Rail Facility which has been
designated a “Preleased Asset Under Development” shall automatically lose such
designation (effective as of the next determination date) for the purpose of
determining Market Capitalization. 
Notwithstanding the foregoing, if the Preleased Asset Under Development
is a Rail Facility, then a 900-day period shall apply instead of the foregoing
540-day period.


 


“Presold Assets Under Development” means, as of any
date of determination, any Project owned by Borrower or an Investment Affiliate
(i) which is treated as an asset under development under GAAP, (ii) which is
located in the United States of America, (iii) which has been presold under a
binding purchase and sale agreement and (iv) which has been designated by
Borrower in a written notice to Administrative Agent as a “Presold Asset Under
Development” for purposes of this Agreement, provided however, (a) in no event
shall any Project be included in such category of “Presold Assets Under
Development” for more than five hundred forty (540) days after construction of
such asset commenced and (b) upon written designation to Administrative Agent
delivered by Borrower during such 540-day period, any Project which has
previously been designated as a “Presold Asset Under Development”, shall be
removed from such category.  Upon the
earlier to occur of (x) the expiration of any above-described 540-day period or
(y) Administrative Agent’s receipt of Borrower’s written designation in
accordance with (b) above, any Project which has been designated a “Presold
Asset Under Development” shall automatically


 


15

















 


lose such designation (effective as of the next determination date) for
the purpose of determining Market Capitalization.


 


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


 


“Prime Applicable Margin” means, as of any date, the
Applicable Margin in effect on such date with respect to Prime Advances and
Prime Loans, as determined in accordance with Section 2.4.


 


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


 


“Prime Rate” means a rate per annum equal to the prime
rate of interest announced from time to time by Bank One or its parent (which
is not necessarily the lowest rate charged to any customer), changing when and
as said prime rate changes.


 


“Project” means any Property owned or operated by the
Borrower or any Subsidiary or Investment Affiliate and operated or intended to
be operated as an industrial or warehouse property.


 


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


 


“Property Breach” is defined in Section 7.30.


 


“Property Operating Income” means, with respect to any
Property owned by Borrower, any Subsidiary or any Investment Affiliate, for any
period, earnings from rental operations after deduction for ground lease rents
payable by Borrower (computed in accordance with GAAP but without deduction for
reserves) attributable to such Property plus depreciation, amortization and
interest expense attributable to such Property for such period to the extent
such items were deducted in determining earnings from rental operations, and,
if such period is less than a year, adjusted by straight lining various
ordinary operating expenses which are payable less frequently than once during
every such period (e.g. real estate taxes and insurance).


 


“Purchaser” is defined in Section 13.3.1.


 


“Qualified Lender” is defined in Section 13.3.1.


 


“Qualifying Investment Affiliate” means (a) any Subsidiary
or Investment Affiliate with respect to which (i) the Borrower or one of
its Wholly-Owned Subsidiaries has management control of the Subsidiary or
Investment Affiliate and each of its assets and (ii) the Borrower or such
Wholly-Owned Subsidiary, as the case may be, is not subject to restrictions
contained in the organizational documents of any of such entities (or any such
restrictions have expired) on its ability to sell or finance the real property
owned by such Subsidiary or Investment Affiliate or its interest in the
Subsidiary or Investment Affiliate, and (b) CRS, (c) CenterPoint Equipment
Capital Corporation, (d) CDC, (e) CenterPoint Resources Corporation, (f)
CenterPoint Realty Management Corporation (g) CP Realty Management Co. I,
and (h) CenterPoint O’Hare Limited Liability Company, provided that the
entities described in clauses (b) through (h) inclusive do not materially
change the nature of their current business or operations. In no event shall a
Subsidiary or Investment Affiliate be a Qualifying Investment Affiliate if it
has Indebtedness that


 


16

















 


is recourse to the Subsidiary or Investment Affiliate (excluding
Indebtedness that is recourse to the Subsidiary or Investment Affiliate only
for customary non-recourse carve-outs).


 


“Qualified Mortgage” means a first or second mortgage
held by Borrower on any real estate asset operated or intended to be operated
as an industrial property.


 


“Rail Facility” means a railroad intermodal facility.


 


“Register” is defined in Section 13.7.


 


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


 


“Reimbursement Obligations” means at any time, the
aggregate of the Obligations of the Borrower to the Lenders, the Issuing Bank
and the Administrative Agent in respect of all unreimbursed payments or
disbursements made by the Lenders, the Issuing Bank and the Administrative
Agent under or in respect of the Facility Letters of Credit.


 


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


 


“Required Lenders” means Lenders in the aggregate
having at least 66 2/3% of the Aggregate Commitment (not held by Defaulting
Lenders who are not entitled to vote) or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66 2/3% of the Aggregate
Outstanding Credit Exposure (not held by Defaulting Lenders who are not
entitled to vote).


 


“Reserve Requirement” means, with respect to a LIBOR
Loan and LIBOR Interest Period, that percentage (expressed as a decimal) which
is in effect on such day, as prescribed by the Federal Reserve Board or other
governmental authority or agency having jurisdiction with respect thereto for
determining the maximum reserves (including, without limitation, basic,
supplemental, marginal and emergency reserves) for eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D)
maintained by a member bank of the Federal Reserve System.


 


“Revolving Loan” means, with respect to a Lender, such
Lender’s loan made pursuant to its commitment to lend set forth in Section 2.1
(or any conversion or continuation thereof).


 


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


 


17

















 


“Securitized Lease Transaction” means a transaction
pursuant to which Borrower securitizes a stream of lease payments from an
investment grade tenant by selling the stream of payments on a basis which is
non-recourse to Borrower but where following such sale Borrower owns the
securities representing the first loss or other position in connection with
such transaction (the “Equity Residual”) such that Borrower must treat such
sale as a borrowing under GAAP and continue to recognize rental payments under
the lease as revenue and record the proceeds received as Indebtedness in
accordance with GAAP.


 


“Senior Loans” as defined in Section 11.15.


 


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


 


“Special Qualifying Investment Affiliate” means any
Subsidiary or Investment Affiliate with respect to which (i) the Borrower or
one of its Wholly-Owned Subsidiaries has management control and (ii) the sale
or financing of any Property owned by such entity is substantially controlled
by Borrower, subject to customary provisions set forth in the organizational
documents of such entity with respect to refinancing or rights of first refusal
granted to other members of such entity. 
For purposes of the preceding sentence the sale or financing of a
Property owned by a Special Qualifying Investment Affiliate shall be deemed to
be substantially controlled by Borrower if Borrower (or a Wholly-Owned
Subsidiary of Borrower) has the ability to exercise a buy/sell right in the
event of a disagreement regarding the sale or financing of such Property and such
buy/sell provision is consistent with the following guidelines for the
purchase/sale of a Person’s ownership interest in such entity or a Project
owned by such entity:


 


1.                                       The
buy/sell provision may be invoked by either member of a Special Qualifying Investment
Affiliate if they fail to agree upon a major decision concerning a Project or
as otherwise specified in the organizational documents of the Special
Qualifying Investment Affiliate;


 


2.                                       The
initiating member is required to deliver notice to the other member of its
intent to initiate the buy/sell provision and state the cash purchase price
such member is willing to pay for either the Project or the other member’s
ownership interest in the Special Qualifying Investment Affiliate (as
applicable);


 


3.                                       The
responding member shall have not more than sixty (60) days within which to
elect to either (a) sell the Project or its entire ownership interest (as
applicable) to the initiating member, or (b) purchase the Project or such
initiating member’s ownership interest (as applicable); and


 


4.                                       The
closing of such sale is required to occur within two hundred ten (210) days
after the date of the original notice from the initiating member.


 


In no event shall a
Subsidiary or Investment Affiliate be a Special Qualifying Investment Affiliate
if it has Indebtedness that is recourse to the Subsidiary or Investment
Affiliate (excluding Indebtedness that is recourse to the Subsidiary or
Investment Affiliate only for customary non-recourse carve-outs).


 


18

















 


“Subsidiary” means a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by Borrower, and provided such corporation, partnership or other entity is
consolidated with Borrower for financial reporting purposes under GAAP.


 


“Substantial Portion” means, with respect to the
Property of the Borrower or its Subsidiaries, Property which represents more
than 10% of the Market Capitalization.


 


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


 


“Swing Line Borrowing Notice” is defined in Section
2.13.


 


“Swing Line Commitment” means the obligation of the
Swing Line Lender to make Swing Line Loans up to a maximum principal amount of
$30,000,000 at any one time outstanding.


 


“Swing Line Lender” means Bank One, NA or such other
Lender which may succeed to its rights and obligations as Swing Line Lender
pursuant to the terms of this Agreement.


 


“Swing Line Loan” means a Loan made available to the
Borrower by the Swing Line Lender pursuant to Section 2.13.


 


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


 


“TIF Certificates” means those certain unsecured
promissory notes or other obligations issued by the Borrower in connection with
the participation and sale of the TIF Notes to third parties.


 


“TIF Notes” means notes payable to Borrower,
Subsidiaries or a Qualifying Investment Affiliate that are issued in connection
with Tax Increment Financing Agreements that are related to (i) Deer Run
Industrial Park, (ii) the Ford Millennium Project, and (iii) the Chicago
International Produce Market.


 


“Total Liabilities” means all Indebtedness plus all
other GAAP liabilities (excluding liabilities resulting from the TIF
Certificates) of the Borrower and its Subsidiaries.


 


“Total Property Operating Income” means the sum of
(i) Property Operating Income for each Property owned (including
leaseholds) by Borrower and its Subsidiaries, and (ii) (without
redundancy) the Borrower’s pro rata share (based on economic interest) of
Property Operating Income from Property owned (including leaseholds) by
Investment Affiliates.  The earnings
from rental operations shall be adjusted to include pro forma earnings (as substantiated
to the reasonable satisfaction of the Administrative Agent) for an entire
quarter for any Property


 


19

















 


acquired or placed in service during the quarter and to exclude
earnings during such quarter from any Property not owned as of the end of the
quarter.


 


“Transferee” is defined in Section 13.5.


 


“Type” means, with respect to any Advance, its nature
as a Prime Advance or a LIBOR Advance.


 


“Unencumbered Asset” means, with respect to any
Property located in the United States and wholly owned by Borrower, any
Qualifying Investment Affiliate or any Special Qualifying Investment Affiliate
(provided that leasehold interests shall be included only if such interest is
pursuant to a “Financeable Ground Lease”) which is in service, at any date of determination,
the circumstance that such asset on such date (a) is not subject to any
Liens other than Permitted Liens described in Section 7.16(i)-(v) and
those in favor of the Lenders or claims (including restrictions on
transferability or assignability) of any kind (including any such Lien, claim
or restriction imposed by the organizational documents of any Qualifying
Investment Affiliate, but excluding restrictions on transferability in the
organizational documents of any Special Qualifying Investment Affiliate and
Permitted Liens described in Section 7.16(i)-(v)), (b) is not subject to
any agreement (including (i) any agreement governing Indebtedness incurred
in order to finance or refinance the acquisition of such asset, and
(ii) if applicable, the organizational documents of any Qualifying
Investment Affiliate, but excluding the organizational documents of any Special
Qualifying Investment Affiliate) which prohibits or limits the ability of the
Borrower, any Qualifying Investment Affiliate or any Special Qualifying
Investment Affiliate, as the case may be, to create, incur, assume or suffer to
exist any Lien upon any assets or Capital Stock of the Borrower, or any of its
Qualifying Investment Affiliates or Special Qualifying Investment Affiliates,
(c) is not subject to any agreement (including any agreement governing
Indebtedness incurred in order to finance or refinance the acquisition of such
asset) which entitles any Person to the benefit of any Lien (but excluding
liens in favor of Lenders and other Permitted Liens) on any assets or Capital
Stock of the Borrower or any of its Qualifying Investment Affiliates or Special
Qualifying Investment Affiliates or would entitle any Person to the benefit of
any Lien (but excluding liens in favor of Lenders and the Permitted Liens
described in Section 7.16(i)(v)) on such assets or Capital Stock upon the
occurrence of any contingency (including, without limitation, pursuant to an
“equal and ratable” clause), (d) is not the subject of a material
environmental issue and, if requested by the Administrative Agent, Borrower
shall provide a current or updated supplemental environmental investigative
report which may be an environmental site assessment conducted in accordance
with the minimum specifications in Exhibit H (or one which is not more than two
years old for Unencumbered Assets owned as of the Closing Date), (e) is
not the subject of any material architectural/engineering issue and, if
requested by the Administrative Agent, Borrower shall provide a current engineering
report (or one that is no more than two years old for Unencumbered Assets owned
as of the Closing Date), and (f) is materially compliant with property
related representations and covenants contained in Section 6.24 hereof.  No Project of a Qualifying Investment
Affiliate or a Special Qualifying Investment Affiliates shall be deemed to be
unencumbered unless (i) both such Project and all Capital Stock of such
Qualifying Investment Affiliate or such Special Qualifying Investment
Affiliate, as the case may be, held by the Borrower is unencumbered and (ii)
none of the events described in Sections 8.7, 8.8, or 8.9 has occurred and is
continuing with respect to such Qualifying Investment Affiliate or Special
Qualifying Investment Affiliate.


 


20

















 


“Unencumbered Pool Value” means the sum of (a) Value
of Unencumbered Assets, plus (b) Value of CNT Venture Loans plus (c) Value of
Option Loans, plus (d) without duplication, the Value of Qualified Mortgages
which are first mortgages, provided that each of the loans included within (b),
(c) and (d) shall be with respect to properties that would qualify as
Unencumbered Assets except that they are not owned by Borrower, a Qualifying
Investment Affiliate, or a Special Qualifying Investment Affiliate, may not
fully comply with clause (a) of the definition of Unencumbered Assets (so long
as there are no Liens other than a mortgage lien in favor of Borrower to secure
the CNT Venture Loan or Option Loan as the case may be), and may not fully
comply with clauses (b) or (c) of the definition of Unencumbered Asset.  Collectively, the Value of CNT Venture
Loans, Value of Option Loans and Value of Qualified Mortgages which are first
mortgages included in Unencumbered Pool Value shall not exceed an amount equal
to 15% of total Unencumbered Pool Value.


 


“Unfunded Liabilities” means the amount (if any) by
which the present value of all vested nonforfeitable benefits under all Single
Employer Plans determined under Section 4001(a)(18)(A) of ERISA exceeds
the fair market value of all such Plan assets allocable to such benefits
determined as of the then most recent valuation date for such Plans.


 


“Unimproved Land” shall mean land owned by Borrower or
an Investment Affiliate which is not yet Developable Land but is adjacent to
either a stabilized Property or Developable Land.


 


“Unmatured Default” means an event which but for the
lapse of time or the giving of notice, or both, would constitute a Default,
other than the occurrence of an event under Section 7.14 during the grace
period provided therein.


 


“Unrestricted Cash and Cash Equivalents” means, as of
any date of determination, the sum of (a) the aggregate amount of Unrestricted
Cash and (b) the aggregate amount of Unrestricted Cash Equivalents (valued at
the fair market value).  As used in this
definition, “Unrestricted” means the specified asset is not subject to any
Liens or claims of any kind in favor of any Person, provided that for purposes
of this definition, the amount of undisbursed bond proceeds held for the
benefit of CenterPoint O’Hare Limited Liability Company shall be considered
Unrestricted Cash.


 


“Value” means with respect to Unimproved Land,
Developable Land, Assets Under Development, Preleased Assets Under Development,
and Presold Assets Under Development, book value as determined in accordance
with GAAP.  If the Lenders believe in
good faith that the book value does not accurately reflect the fair market
value of the applicable asset, then “Value” shall mean the fair market value
(taking into account work that has been completed at the time of determining
such fair market value).  Fair market
value shall be determined by mutual agreement among Borrower and the Required
Lenders and, if there is no mutual agreement, then by an appraisal performed by
an appraiser acceptable to the Lenders.


 


“Value of CNT Venture Loans” means the sum of an
amount for each CNT Venture Loan equal to the lesser of (i) the outstanding
principal balance of such CNT Venture Loan and (ii) the Property Operating
Income for the property owned by the applicable Permitted CalEast Entity for
the most recent quarter annualized, capitalized at the Applicable Cap Rate.


 


21

















 


“Value of Option Loans” means the sum of an amount for
each Option Loan equal to the lesser of (i) the outstanding principal balance
of such Option Loan and (ii) the Property Operating Income for the property
owned by the single purpose entity that is the borrower under such Option Loan
for the most recent quarter annualized, capitalized at the Applicable Rate.


 


“Value of Qualified Mortgages” means the sum of the
value of each Qualified Mortgage which shall be the lesser of (i) the
outstanding principal balance of such Qualified Mortgage at the time of any
determination thereof, or (ii) 85% of the value of the collateral
encumbered by such Qualified Mortgage (less the outstanding balance of the
first mortgage if the Qualified Mortgage is a second mortgage) determined by
capitalizing the operating income of such collateral, computed in the same
manner as the Property Operating Income at the Applicable Cap Rate, provided
that the aggregate principal balance of all Qualified Mortgages included in
this determination shall not exceed $75,000,000.


 


“Value of Unencumbered Assets” means, as of the end of
a quarter, the sum of (a) the value of all Unencumbered Assets wholly
owned by the Borrower, plus (b) the allocable share based on
Borrower’s economic interest in the value of the Unencumbered Assets owned by Qualifying
Investment Affiliates and Special Qualifying Investment Affiliates, plus
(c) the face amount of Unrestricted Cash and Cash Equivalents owned by
Borrower, plus (d) the allocable share based on Borrower’s economic
interest in the amount of Unrestricted Cash and Cash Equivalents owned by
Qualifying Investment Affiliates and Special Qualifying Investment Affiliates, plus
(e) 100% of the then current Value of each Preleased Asset Under Development
and Presold Asset Under Development that constitutes an Unencumbered Asset
except for not meeting the condition that it be in service, provided that the
aggregate amount added by such assets to Value of Unencumbered Assets shall not
exceed $175,000,000, plus (f) 60% of the then current Value of each
Asset Under Development that constitutes an Unencumbered Asset except for not
meeting the condition that it be in service, provided that the aggregate amount
added to Value of Unencumbered Assets from Assets Under Development shall not
exceed $75,000,000.  In no event shall
the aggregate amount added to Value of Unencumbered Assets from Assets Under
Development, Preleased Assets Under Development and Presold Assets Under
Development exceed 15% of the total Unencumbered Pool Value.  The aggregate amount of Value of Unencumbered
Assets attributable to assets located in any one industrial park shall not
exceed 25% of the total Value of Unencumbered Assets.  The aggregate amount of Value of Unencumbered Assets attributable
to both Qualifying Investment Affiliates and Special Qualifying  Investment Affiliates in the aggregate shall
not exceed 10% of the total Unencumbered Pool Value.  Unencumbered Assets shall be valued by capitalizing the Property
Operating Income for such quarter less an assumed management fee of 3% of gross
revenues (excluding tenant recoveries) and an assumed capital reserve
expenditure equal to 5¢ per square foot of leasable space (as annualized) from
each Project which is an Unencumbered Asset at a rate equal to the Applicable
Cap Rate.  If a Property is acquired
during a quarter then Borrower shall be entitled to include pro forma Property
Operating Income from such Property for the entire quarter in the foregoing
calculation.  If a Property is no longer
owned as of the last day of a quarter, then no value shall be included based on
capitalizing Property Operating Income from such Property.


 


“Wholly-Owned Subsidiary” of a Person means (i) any
Subsidiary all of the outstanding voting securities of which shall at the time
be owned or controlled, directly or indirectly, by such Person or one or more
Wholly-Owned Subsidiaries of such Person, or (ii) any partnership,


 


22

















 


association, joint venture or similar business organization of which
100% of the ownership interests having ordinary voting power and at least 95%
of all other classes of ownership interest shall at the time be so owned or
controlled by such Person.


 


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


 


ARTICLE II.


 


THE
CREDIT


 


2.1           Commitment.


 


From and including the date of this Agreement and
prior to the Facility Termination Date, each Lender severally agrees, subject
to the terms and conditions set forth in this Agreement, to make Loans to the
Borrower from time to time in amounts not to exceed in the aggregate at any one
time outstanding the amount of such Lender’s Commitment minus such Lender’s
Percentage of Facility Letter of Credit Obligations and minus such Lender’s
Percentage of any outstanding Swing Line Loans.  Subject to the terms of this Agreement, the Borrower may borrow,
repay and reborrow at any time prior to the Facility Termination Date.  The Commitments of each Lender to lend
hereunder shall expire on the Facility Termination Date.


 


2.2           Final Principal Payment and
Extension Option.


 


Any outstanding Advances and all other unpaid
Obligations shall be paid in full by the Borrower on the Facility Termination
Date.  The Facility Termination Date can
be extended for one year upon notice to the Administrative Agent at least
ninety (90) days (but no more than 180 days) before the original Facility
Termination Date if (i) no Default has occurred and is continuing at the
time of such notice and at the time of the original Facility Termination Date,
(ii) all of the Lenders agree to such extension, and (iii) the
Borrower pays an extension fee equal to 0.20% of the Aggregate Commitment at
the time of the extension for the ratable benefit of all accepting Lenders.  If the Borrower gives such notice to the
Administrative Agent, the Administrative Agent shall notify the Lenders within
10 days of receipt of such request.  The
Lenders shall have 30 days after receipt of such notice to notify Administrative
Agent as to whether they accept or reject such extension request and
Administrative Agent shall notify Borrower at least 45 days prior to the
Facility Termination Date of the acceptance or rejection of the Lenders of
Borrower’s request to extend the Facility Termination Date.  If the foregoing conditions are satisfied
other than the condition requiring the consent of all Lenders, then Borrower
shall have the right to replace any Lender that does not agree to the extension
provided that:  (a) Borrower
notifies such Lender that it has elected to replace such Lender and notifies
such Lender and the Administrative Agent of the identity of the proposed
replacement Lender at least 15 Business Days prior to the Facility Termination
Date and (b) the proposed replacement Lender is a Qualified Lender.  The Lender being replaced shall assign its
Percentage of the Aggregate Commitment and its rights and obligations under
this Facility to the replacement Lender pursuant to an Assignment and the
replacement Lender shall assume such Percentage of the Aggregate Commitment and
the related obligations under this Facility prior to the Facility Termination
Date.  The purchase by the replacement
Lender shall be at par (plus all accrued and unpaid interest and any other sums
owed to such Lender being replaced hereunder) which shall


 


23

















 


be paid to the Lender being replaced upon the execution and delivery of
the Assignment and no fee pursuant to Section 13.3.2(ii) shall be required.


 


2.3           Ratable
Loans.


 


Each Advance hereunder shall consist of Loans made
from the several Lenders ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment except for Swing Line
Loans which shall be made by the Swing Line Lender in accordance with Section 2.13
and Competitive Bid Loans made in accordance with Section 2.14.  The ratable Advances may be Prime Advances,
LIBOR Advances, Fixed Rate Advances, or a combination thereof, selected by the
Borrower in accordance with Sections 2.9 and 2.10.


 


2.4           Applicable
Margins.


 


The Prime Applicable Margin and the LIBOR Applicable
Margin to be used in calculating the interest rate applicable to different
Types of Advances shall vary from time to time in accordance with the ratings
from Moody’s and S&P for either Borrower’s long-term unsecured debt or this
Facility.  The applicable debt ratings
and the Applicable Margins are set forth in the table attached as Exhibit
A.  All margins and fees change as and
when the rating classification changes. 
In the event both rating agencies have issued a rating and the rating
agencies are split on the rating for the Borrower’s long-term unsecured debt or
this Facility, the lower rating shall, except as set forth below, be deemed to
be the applicable rating (e.g., if the Borrower’s Moody’s long-term unsecured
debt or this Facility’s rating is Baa1 and its S&P long-term unsecured debt
or this Facility’s rating is BBB then the Applicable Margins shall be computed
based on the S&P rating).  In the
event Moody’s and S&P issue different ratings of the Borrower’s long term
unsecured debt and the Borrower has a third rating from Fitch which is
different from the Moody’s and S&P ratings, the middle rating of the three
ratings shall be deemed the applicable rating. 
In the event Moody’s and S&P issue different ratings on the
Borrower’s long term unsecured  debt and
the Borrower has a third rating from Fitch which is the equivalent of the
Moody’s or S&P rating, the third rating confirming either the Moody’s or
S&P rating, as the case may be, shall be deemed to be the applicable
rating.  In the event either Moody’s or
S&P has not issued a rating, the rating from the agency that has issued its
rating shall govern.  The Applicable
Margins shall be adjusted effective on the next Business Day following any
change in the Borrower’s (or the Facility’s if applicable) Moody’s long-term
unsecured debt rating and/or S&P’s long-term unsecured debt rating (and/or
Fitch’s long-term unsecured debt rating, if applicable), as the case may be
(provided that if Administrative Agent does not receive notice of a change in
rating within forty-five days after it occurs then any reduction in Applicable
Margin shall be effective only when such notice is received).  In the event of a rating agency downgrade,
the Borrower will receive a credit for any incremental borrowing cost should
the rating agency(ies) restore the higher rating within a ninety day
period.  In the event that either
S&P or Moody’s shall discontinue their ratings of the REIT industry or the
Borrower’s long-term unsecured debt or this Facility, a mutually agreeable
substitute rating agency shall be selected by the Required Lenders and the
Borrower.  If the Required Lenders and
the Borrower cannot agree on a substitute rating agency within forty-five (45)
days of such discontinuance, the Applicable Margin to be used for the
calculation of interest on Advances hereunder shall be Pricing Category 4 (as
defined in Exhibit A).  Lenders
acknowledge that the rating for Borrower’s unsecured long term debt may be
issued even though Borrower has no outstanding unsecured long term debt.


 


24

















 


If a rating agency downgrade or discontinuance results
in an increase in the Prime Applicable Margin or the LIBOR Applicable Margin
and if such increase is reversed and the affected Applicable Margin is restored
within ninety (90) days thereafter, upon notification to Administrative Agent
of the rating change Borrower shall receive a credit against interest next due
the Lenders equal to interest accrued from time to time during such period of
downgrade or discontinuance and actually paid by the Borrower on the Advances
at the differential between such Applicable Margins.


 


If a rating agency upgrade results in a decrease in
the Prime Applicable Margin or the LIBOR Applicable Margin and if such decrease
is reversed and the affected Applicable Margin is restored with ninety (90)
days thereafter, then Borrower shall pay at the time the next interest payment
is due an additional amount equal to interest accrued from time to time during
the period of upgrade at the differential between such Applicable Margins.


 


2.5           Facility
Fee.


 


The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a facility fee (the “Facility Fee”) calculated
at a per annum percentage (“Facility Fee Rate”) of the total Aggregate
Commitment.  The Facility Fee Rate shall
vary from time to time based on the Borrower’s long term unsecured debt rating
as set forth in the table attached hereto as Exhibit A.  The Facility Fee shall be paid quarterly in
arrears on the last day of each calendar quarter, beginning September 30,
2003 for the period from the date hereof to September 30, 2003, and continuing
thereafter on the last day of each subsequent quarter.


 


2.6           Other Fees.


 


The Borrower agrees to pay all other fees payable to
the Administrative Agent and the Arranger pursuant to the Borrower’s prior
letter agreements with them dated April 3, 2003.


 


2.7           Minimum
Amount of Each Advance.


 


Each LIBOR Advance shall be in the minimum amount of
$2,000,000 (and in multiples of $100,000 if in excess thereof), and each Prime
Advance shall be in the minimum amount of $1,000,000 (and in multiples of
$100,000 if in excess thereof), provided, however, that any Prime Advance may
be in the amount of the unused Aggregate Commitment.  Borrower acknowledges that any LIBOR Advance not in a multiple of
$750,000 or $1,000,000 may result in a higher LIBOR Rate.


 


2.8           Optional
Principal Payments.


 


The Borrower may from time to time pay, without
penalty or premium, all or any part of outstanding Prime Advances or LIBOR
Advances, upon two Business Days’ prior notice to the Administrative Agent and
each Lender (except that no notice shall be required to repay a Swing Line Loan)
and each such prepayment shall be in a minimum amount of $50,000.00 or in
multiples thereof, provided that a LIBOR Advance may not be paid prior to the
last day of the applicable LIBOR Interest Period unless Borrower pays the
applicable Break-up Fee.


 


25

















 


2.9           Method of Selecting Types and
Interest Periods for New Advances.


 


Unless Borrower and Lenders have agreed upon a Fixed
Rate in accordance with Section 2.15, the Borrower shall select the Type
of Advance and, in the case of each LIBOR Advance, the LIBOR Interest Period
applicable to each Advance from time to time. 
The Borrower shall give the Administrative Agent irrevocable notice (a
“Borrowing Notice”) (i) not later than 10:00 a.m. (Chicago time) at least one
Business Day before the Borrowing Date of each Prime Advance (other than a
Swing Line Loan), (ii) not later than 10:00 a.m. (Chicago time) at least three
Business Days before the Borrowing Date for each LIBOR Advance, and
(iii) not later than noon (Chicago time) on the Borrowing Date for each
Swing Line Loan, specifying:


 


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


 


(ii)           the aggregate amount of such Advance,


 


(iii)          the Type of Advance selected (which
must be a Prime Advance in the case of Swing Line Loans), and


 


(iv)          in the case of each LIBOR Advance, the
LIBOR Interest Period applicable thereto.


 


The Borrower shall also deliver together with each
Borrowing Notice the compliance certificate required in Section 5.2 and
otherwise comply with the conditions set forth in Section 5.2 for
Advances.  The Administrative Agent
shall provide each Lender by facsimile with a copy of each Borrowing Notice and
compliance certificate on the same Business Day it is received.


 


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


 


No LIBOR Interest Period may end after the Facility
Termination Date and, unless all of the Lenders otherwise agree in writing, in
no event may there be more than ten (10) different LIBOR Interest Periods for
LIBOR Advances outstanding at any one time.


 


2.10         Conversion and Continuation of
Outstanding Advances.


 


Prime Advances (other than Swing Line Loans) shall
continue as Prime Advances unless and until such Prime Advances are converted
into LIBOR Advances.  Each LIBOR Advance
shall continue as a LIBOR Advance until the end of the then applicable LIBOR
Interest Period therefor, at which time such LIBOR Advance shall be
automatically converted into a Prime Advance unless the Borrower shall have
given the Administrative Agent a Conversion/Continuation Notice requesting
that, at the end of such LIBOR Interest Period, such LIBOR Advance shall
continue as a LIBOR Advance for the same or another LIBOR Interest Period.  Subject to the terms of Section 2.7, the
Borrower may elect from time to time to convert all or any part of an Advance
of any Type (other than a Swing Line Loan) into any other Type of


 


26

















 


Advance; provided that any conversion of any LIBOR Advance shall be
made on, and only on, the last day of the Interest Period applicable thereto
unless Borrower pays the applicable Break-up Fee.  The Borrower shall give the Administrative Agent irrevocable
notice (a “Conversion/Continuation Notice”) of each conversion of an Advance
not later than 10:00 a.m. (Chicago time) at least one Business Day, in the case
of a conversion into a Prime Advance, or three Business Days, in the case of a
conversion into or continuation of a LIBOR Advance, prior to the date of the
requested conversion or continuation, specifying:


 


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


 


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


 


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


 


2.11         Changes
in Interest Rate, Etc.


 


Each Prime Advance shall bear interest on the
outstanding principal amount thereof, for each day from and including the date
such Advance is made or is converted from a LIBOR Advance into a Prime Advance
pursuant to Section 2.10 to but excluding the date it is paid or is
converted into a LIBOR Advance pursuant to Section 2.10 hereof, at a rate per
annum equal to the Adjusted Prime Rate for such day.  Changes in the rate of interest on that portion of any Advance
maintained as a Prime Advance will take effect simultaneously with each change
in the Prime Rate.  Each LIBOR Advance
shall bear interest from and including the first day of the LIBOR Interest
Period applicable thereto to (but not including) the last day of such LIBOR
Interest Period at the LIBOR Rate determined as applicable to such LIBOR
Advance.


 


2.12         Rates
Applicable After Default.


 


Notwithstanding anything to the contrary contained in
Section 2.9 or 2.10, during the continuance of a Default or Unmatured Default,
the Required Lenders may, at their option, by written notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 9.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued beyond its current term as a LIBOR Advance.  During the continuance of a Default the
Required Lenders may, at their option, by prior written notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 9.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (i) each LIBOR Advance
shall bear interest for the applicable LIBOR Interest Period at the rate
otherwise applicable to such LIBOR Interest Period plus 2% per annum until such
Default shall have been cured, (ii) each Prime Advance shall bear interest at a
rate per annum equal to the Adjusted Prime Rate otherwise applicable to the
Prime Advance plus 2% per annum until such Default shall have been cured and
(iii) the Facility Letter of Credit Fee shall be equal to the LIBOR Applicable
Margin plus 2%; provided that such rates shall become applicable


 


27

















 


automatically without notice to the Borrower if a Default occurs under
Section 8.7 or Section 8.8.


 


2.13         Swing
Line Loans.


 


(a)           Amount of Swing Line Loans.  Upon the satisfaction of the conditions
precedent set forth in Section 5.2 and, if such Swing Line Loan is to be made
on the date of the initial Advance hereunder, the satisfaction of the
conditions precedent set forth in Section 5.1 as well, from and including the
date of this Agreement and prior to the Facility Termination Date, the Swing
Line Lender agrees, on the terms and conditions set forth in this Agreement, to
make Swing Line Loans to the Borrower from time to time in an aggregate
principal amount not to exceed the Swing Line Commitment, provided that the Aggregate
Outstanding Credit Exposure shall not at any time exceed the Aggregate
Commitment, and provided further that at no time shall the sum of (i) the
Swing Line Lender’s Percentage of the Swing Line Loans, plus (ii) the outstanding
Loans made by the Swing Line Lender pursuant to Section 2.1, plus
(iii) the Swing Line Lender’s Percentage of Facility Letter of Credit
Obligations exceed the Swing Line Lender’s Commitment at such time.  Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Swing Line Loans at any time prior to
the Facility Termination Date.


 


(b)           Borrowing Notice.  The Borrower shall deliver to the
Administrative Agent and the Swing Line Lender irrevocable notice (a “Swing
Line Borrowing Notice”) not later than noon (Chicago time) on the Borrowing
Date of each Swing Line Loan, specifying (i) the applicable Borrowing Date
(which date shall be a Business Day), and (ii) the aggregate amount of the
requested Swing Line Loan which shall be an amount not less than $100,000.  The Swing Line Loans shall bear interest at
the Adjusted Prime Rate.


 


(c)           Making of Swing Line Loans.  Promptly after receipt of a Swing Line Borrowing
Notice, the Administrative Agent shall notify each Lender by fax, or other
similar form of transmission, of the requested Swing Line Loan.  Not later than 2:00 p.m. (Chicago time) on
the applicable Borrowing Date, the Swing Line Lender shall make available the
Swing Line Loan, in funds immediately available in Chicago, to the
Administrative Agent at its address specified pursuant to Article XIII.  The Administrative Agent will promptly make
the funds so received from the Swing Line Lender available to the Borrower on
the Borrowing Date at the Administrative Agent’s aforesaid address.


 


(d)           Repayment of Swing Line Loans.  Each Swing Line Loan shall be paid in full
by the Borrower on or before the fifth (5th) Business Day after the Borrowing
Date for such Swing Line Loan.  In
addition, the Swing Line Lender (i) may at any time in its sole discretion with
respect to any outstanding Swing Line Loan, or (ii) shall on the fifth (5th)
Business Day after the Borrowing Date of any Swing Line Loan, require each Lender
(including the Swing Line Lender) to make a Revolving Loan in the amount of
such Lender’s Percentage of such Swing Line Loan (including, without
limitation, any interest accrued and unpaid thereon), for the purpose of
repaying such Swing Line Loan.  Not
later than noon (Chicago time) on the date of any notice received pursuant to
this Section 2.13, each Lender shall make available its required Revolving
Loan, in funds immediately available in Chicago to the Administrative Agent at
its address specified pursuant to Article XIII.  Revolving Loans made pursuant to this Section 2.13 shall
initially be Prime Advances and thereafter may be continued as Prime Advances
or


 


28

















 


converted
into LIBOR Advances in the manner provided in Section 2.10 and subject to the
other conditions and limitations set forth in this Article II.  Unless a Lender shall have notified the
Swing Line Lender, prior to its making any Swing Line Loan, that any applicable
condition precedent set forth in Sections 5.1 or 5.2 had not then been
satisfied, such Lender’s obligation to make Revolving Loans pursuant to this
Section 2.13 to repay Swing Line Loans shall be unconditional, continuing,
irrevocable and absolute and shall not be affected by any circumstances,
including, without limitation, (a) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Administrative
Agent, the Swing Line Lender or any other Person, (b) the occurrence or
continuance of a Default or Unmatured Default, (c) any adverse change in the
condition (financial or otherwise) of the Borrower, or (d) any other
circumstance, happening or event whatsoever. 
In the event that any Lender fails to make payment to the Administrative
Agent of any amount due under this Section 2.13, the Administrative Agent
shall be entitled to receive, retain and apply against such obligation the
principal and interest otherwise payable to such Lender hereunder until the
Administrative Agent receives such payment from such Lender or such obligation
is otherwise fully satisfied.  In
addition to the foregoing, if for any reason any Lender fails to make payment
to the Administrative Agent of any amount due under this Section 2.13, such
Lender shall be deemed, at the option of the Administrative Agent, to have
unconditionally and irrevocably purchased from the Swing Line Lender, without
recourse or warranty, an undivided interest and participation in the applicable
Swing Line Loan in the amount of such Revolving Loan, and such interest and
participation may be recovered from such Lender together with interest thereon
at the Federal Funds Effective Rate for each day during the period commencing
on the date of demand and ending on the date such amount is received.  On the Facility Termination Date, the
Borrower shall repay in full the outstanding principal balance of the Swing
Line Loans.


 


2.14         Competitive Bid Loans.


 


(a)           Competitive Bid
Option.  In addition to ratable
Advances pursuant to Section 2.3, but subject to the terms and conditions
of this Agreement (including, without limitation the limitation set forth in
Section 2.1 as to the maximum amount of all Loans not exceeding the
Aggregate Commitment), the Borrower may, as set forth in this Section 2.14,
request the Lenders, prior to the Facility Termination Date, to make offers to
make Competitive Bid Loans to the Borrower. 
Each Lender may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section 2.14.  Competitive Bid Loans shall be evidenced by the Competitive Bid
Notes.  In no event shall the aggregate
of all Competitive Bid Loans outstanding at any time exceed 50% of the
Aggregate Commitment.


 


(b)           Competitive Bid
Quote Request.  When the Borrower
wishes to request offers to make Competitive Bid Loans under this
Section 2.14, it shall transmit to the Administrative Agent by telecopy a
Competitive Bid Quote Request substantially in the form of Exhibit C-1
hereto so as to be received no later than (i) 10:00 a.m. (Chicago time) at
least five Business Days prior to the Borrowing Date proposed therein, in the
case of a request for a Competitive LIBOR Margin or (ii) 9:00 a.m.
(Chicago time) at least one Business Day prior to the Borrowing Date proposed
therein, in the case of a request for an Absolute Rate specifying:


 


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


 


29

















 


(ii)           the requested aggregate principal
amount of such Competitive Bid Loan which must be at least $10,000,000 and an
integral multiple of $1,000,000;


 


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


 


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


 


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


 


(c)           Invitation for
Competitive Bid Quotes.  Promptly
and in any event before the close of business on the same Business Day of
receipt of a Competitive Bid Quote Request that is not rejected pursuant to
Section 2.14(b), the Administrative Agent shall send to each of the
Lenders by telecopy an Invitation for Competitive Bid Quotes substantially in
the form of Exhibit C-2 hereto, which shall constitute an invitation by the
Borrower to each Lender to submit Competitive Bid Quotes offering to make the
Competitive Bid Loans to which such Competitive Bid Quote Request relates in
accordance with this Section 2.14.


 


(d)           Submission and
Contents of Competitive Bid Quotes.


 


(i)            Each Lender may, in its sole
discretion, submit a Competitive Bid Quote containing an offer or offers to
make Competitive Bid Loans in response to any Invitation for Competitive Bid
Quotes.  Each Competitive Bid Quote must
comply with the requirements of this Section 2.14(d) and must be submitted
to the Administrative Agent by telex or telecopy at its offices not later than
(a) 2:00 p.m. (Chicago time) at least four Business Days prior to the
proposed Borrowing Date, in the case of a request for a Competitive LIBOR
Margin or (b) 9:00 a.m. (Chicago time) on the proposed Borrowing Date, in
the case of a request for an Absolute Rate (or, in either case upon reasonable
prior notice to the Lenders, such other time and date as the Borrower and the
Administrative Agent may agree); provided that Competitive Bid Quotes submitted
by the Administrative Agent, in its capacity as a Lender, may only be submitted
if the Administrative Agent  notifies
the Borrower of the terms of the offer or offers contained therein no later
than 30 minutes prior to the latest time at which the relevant Competitive Bid Quotes
must be submitted by the other Lenders. 
Subject to the Borrower’s compliance with all other conditions to
disbursement herein, any Competitive Bid Quote of a Lender so made shall be
irrevocable except with the written consent of the Administrative Agent given
on the instructions of the Borrower.


 


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


 


30

















 


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


 


2)             the principal amount of the Competitive Bid Loan for
which each such offer is being made, which principal amount (x) may be
greater than, less than or equal to the Commitment of the quoting Lender,
(y) must be at least $5,000,000 and an integral multiple of $1,000,000,
and (z) may not exceed the principal amount of Competitive Bid Loans for
which offers are requested,


 


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


 


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


 


5)             the identity of the quoting Lender, provided that such
Competitive Bid Loan may be funded by such Lender’s Designated Lender as
provided in Section 2.14(j), regardless of whether that is specified in
the Competitive Bid Quote.


 


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


 


1)             is not substantially in the form of Exhibit C-3
hereto or does not specify all of the information required by
Section 2.14(d)(ii),


 


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


 


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


 


4)             arrives after the time set forth in
Section 2.14(d)(i).


 


If any Competitive Bid
Quote shall be rejected pursuant to this Section 2.14(d)(iii), then the
Administrative Agent shall notify the relevant Lender of such rejection as soon
as practical.


 


(e)           Notice to Borrower.  The Administrative Agent shall promptly
notify the Borrower of the terms (i) of any Competitive Bid Quote
submitted by a Lender that is in accordance with Section 2.14(d) and
(ii) of any Competitive Bid Quote that amends, modifies or is otherwise
inconsistent with a previous Competitive Bid Quote submitted by such Lender
with respect to the same Competitive Bid Quote Request.  Any such subsequent Competitive Bid Quote
shall be disregarded by the Administrative Agent unless such subsequent
Competitive Bid Quote specifically states that it is submitted solely to
correct a manifest error in such former Competitive Bid Quote.  The Administrative Agent’s notice to the
Borrower shall specify the aggregate principal amount of Competitive Bid Loans
for which offers have been received for each Interest Period specified in the
related Competitive Bid Quote Request and the respective


 


31

















 


principal
amounts and Competitive LIBOR Margins or Absolute Rate, as the case may be, so
offered.


 


(f)            Acceptance and Notice by Borrower.  Not later than (i) 6:00 p.m. (Chicago
time) at least four Business Days prior to the proposed Borrowing Date in the
case of a request for a Competitive LIBOR Margin or (ii) 10:00 a.m.
(Chicago time) on the proposed Borrowing Date, in the case of a request for an
Absolute Rate (or, in either case upon reasonable prior notice to the Lenders,
such other time and date as the Borrower and the Administrative Agent may
agree), the Borrower shall notify the Administrative Agent of its acceptance or
rejection of the offers so notified to it pursuant to Section 2.14(e);
provided, however, that the failure by the Borrower to give such notice to the
Administrative Agent shall be deemed to be a rejection of all such offers.  In the case of acceptance, such notice (a
“Competitive Bid Borrowing Notice”) shall specify the aggregate principal
amount of offers for each Interest Period that are accepted.  The Borrower may accept any Competitive Bid
Quote in whole or in part (subject to the terms of Section 2.14(d)(iii));
provided that:


 


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


 


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


 


(iii)          the Borrower may not accept any offer
that is described in Section 2.14(d)(iii) or that otherwise fails to
comply with the requirements of this Agreement.


 


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


 


(h)           Administration Fee.  The Borrower hereby agrees to pay to the
Administrative Agent an administration fee of $2,500 per each Competitive Bid
Quote Request transmitted by the Borrower to the Administrative Agent pursuant
to Section 2.14(b).  Such
administration fee shall be payable monthly in arrears on the first Business
Day of each month and on the Facility Termination Date (or such earlier date on
which the Aggregate Commitment shall terminate or be cancelled) for any period
then ending for which such fee, if any, shall not have been theretofore paid.


 


32

















 


(i)            Other Terms.  Any Competitive Bid Loan shall not reduce
the Commitment of the Lender making such Competitive Bid Loan, and each such
Lender shall continue to be obligated to fund its full Percentage of all pro
rata Advances under the Facility. 
Competitive Bid Loans shall not be prepaid prior to the end of the applicable
Interest Period unless the Competitive Bid Lender consents.  Competitive Bid Loans may not be continued
and, if not repaid at the end of the Interest Period applicable thereto, shall
(subject to the conditions set forth in this Agreement) be replaced by new
Competitive Bid Loans made in accordance with this Section 2.14 or by
ratable Advances in accordance with Section 2.3.


 


(j)            Designated Lenders.  A Lender may designate its Designated Lender
to fund a Competitive Bid Loan on its behalf as described in Section
2.14(d)(ii)(5).  Any Designated Lender
which funds a Competitive Bid Loan shall on and after the time of such funding
become the obligee under such Competitive Bid Loan and be entitled to receive
payment thereof when due.  No Lender
shall be relieved of its obligation to fund a Competitive Bid Loan, and no
Designated Lender shall assume such obligation, prior to the time such
Competitive Bid Loan is funded.


 


(k)           Notice to Lenders.  Administrative Agent shall provide to all
bidding Lenders a summary report of each competitive bid request including the
amount and rate for each bid awarded.


 


2.15         Fixed Rate
Loans.


 


In addition to the other interest rate options
provided herein, the Borrower may request a fixed rate (“Fixed Rate”) on any
ratable Advance for up to one (1) year. 
The Fixed Rate shall be as quoted by the Administrative Agent, subject
to the approval of all of the Lenders. 
If all of the Lenders do not approve a proposed Fixed Rate quoted by the
Administrative Agent then the Fixed Rate Advance shall not be made.  If Borrower and Lenders agree to a Fixed
Rate for all or a portion of the advances outstanding hereunder, all the
provisions contained herein for LIBOR Advances (including without limitation
the provisions of Section 4.4 regarding indemnification in the event of prepayment)
shall be applicable to such Fixed Rate Advances with the Interest Period being
the period of time agreed to by Borrower and Lenders and the LIBOR Rate being
equal to the Fixed Rate agreed to by Borrower and Lenders.


 


2.16         Method of
Payment.


 


All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available
funds to the Administrative Agent at the Administrative Agent’s account
specified pursuant to Article XIV, or at any other Lending Installation of
the Administrative Agent specified in writing by the Administrative Agent to
the Borrower, by noon (Chicago time) on the date when due and shall (except
with respect to repayments of Swing Line Loans and Competitive Bid Loans) be
applied ratably by the Administrative Agent among the Lenders.  Each payment delivered to the Administrative
Agent for the account of any Lender shall be delivered promptly by the
Administrative Agent to such Lender in the same type of funds that the
Administrative Agent received at its account specified pursuant to Article XIV
or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender promptly.  If any payment received by the Administrative Agent is not
delivered to a Lender by the closing of business on the same Business Day as
received by the Administrative Agent (with respect to payments received by 2:00
p.m., Chicago time) or the next Business Day


 


33

















 


(with respect to payments received after 2:00 p.m., Chicago time),
Lender shall receive from the Administrative Agent interest at the Federal
Funds Effective Rate on the payment. 
The Administrative Agent is hereby authorized to charge the specific
account of the Borrower, if any, maintained with Bank One, NA for such purpose,
for each payment of principal, interest and fees as it becomes due
hereunder.  The Borrower shall not have
any liability to any Lender for the failure of the Administrative Agent to
promptly deliver funds to any such Lender and shall be deemed to have made all
such payments on the date the respective payment is made by the Borrower to the
Administrative Agent provided that it is received by the Administrative Agent
no later than the time specified in this Section 2.16.


 


2.17         Notes;
Telephonic Notices.


 


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


 


2.18         Interest Payment Dates; Interest and
Fee Basis.


 


Interest accrued on each Advance shall be payable on
each Payment Date, commencing with the first such date to occur after the date
hereof, and at the Facility Termination Date, whether by acceleration or
otherwise.  Interest accrued on each
LIBOR Advance shall also be payable on any date on which the LIBOR Advance is
prepaid (provided that nothing herein shall authorize a prepayment which is not
otherwise permitted hereunder). 
Interest and Facility Fees shall be calculated for actual days elapsed
on the basis of a 360-day year. 
Interest shall be payable for the day an Advance is made but not for the
day of any payment on the amount paid if payment is received prior to noon
(Chicago time) at the place of payment, unless such Advance is repaid on the
date that it was made.  If any payment
of principal of or interest on an Advance shall become due on a day which is
not a Business Day, such payment shall be made on the next succeeding Business
Day and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.


 


2.19         Notification of
Advances, Interest Rates and Prepayments.


 


Promptly after receipt thereof (but in no event later
than noon (Chicago time) one Business Day prior to the proposed Borrowing Date
for a Prime Advance or the close of business three Business Days prior to the
proposed Borrowing Date for a LIBOR Advance) the Administrative Agent will
notify each Lender of the contents of each Borrowing Notice, Swing Line
Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it


 


34

















 


hereunder.  The Administrative
Agent will notify each Lender and the Borrower of the interest rate applicable
to each LIBOR Advance promptly upon determination of such interest rate and
will give each Lender and the Borrower prompt notice of each change in the
Prime Rate and the Applicable Margin.


 


2.20         Lending
Installations.


 


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


 


2.21         Non-Receipt of Funds by the
Administrative Agent.


 


Unless the Borrower or a Lender, as the case may be,
notifies the Administrative Agent prior to the date on which it is scheduled to
make payment to the Administrative Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Administrative Agent for the account of the Lenders,
that it does not intend to make such payment, the Administrative Agent may
assume that such payment has been made. 
The Administrative Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in reliance upon
such assumption.  If the Borrower has
not in fact made such payment to the Administrative Agent, the recipient of
such payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to the
Federal Funds Effective Rate for such day. 
If a Lender has not in fact made such payment to the Administrative
Agent, the Administrative Agent shall be entitled to recover such corresponding
amount on demand from such Lender together with interest thereon in respect of
each day during the period commencing on the date such amount was so made available
by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to the Federal Funds Effective Rate for
such date.  If such Lender does not make
such payment upon the Administrative Agent’s demand therefor, the
Administrative Agent shall promptly notify the Borrower, and the Borrower shall
immediately pay such amount to the Administrative Agent together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at the rate applicable to the
relevant Loan.  Nothing in this Section
2.21 shall be deemed to relieve any Lender from its obligation to fulfill any
portion of its Commitment hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any default by such Lender
hereunder.


 


No Lender shall be responsible for any default by any
other Lender in its obligation to make Loans hereunder, and each Lender shall
be obligated to make the Loans provided to be made by it hereunder, regardless
of the failure of any other Lender to fulfill its Commitment hereunder.


 


35

















 


2.22         Voluntary Reduction of Aggregate
Commitment Amount.


 


Upon at least five (5) Business Days’ prior
irrevocable written notice (or telephonic notice promptly confirmed in writing)
to the Administrative Agent, Borrower shall have the right, without premium or
penalty, to permanently reduce the Aggregate Commitment in whole or in part
provided that (a) Borrower may not reduce the Aggregate Commitment below the
Aggregate Outstanding Credit Exposure at the time of such requested reduction,
(b) any such partial reduction shall be in the minimum aggregate amount of
Five Million Dollars (U.S. $5,000,000.00) or any integral multiple of Five
Million Dollars (U.S. $5,000,000.00) in excess thereof and (c) Borrower
may not reduce the Aggregate Commitment to an amount less than One Hundred
Million Dollars (U.S. $100,000,000.00) unless the Aggregate Commitment is
terminated in its entirety.  Any
reduction of the Aggregate Commitment shall be applied pro rata to each
Lender’s Commitment.


 


2.23         Increase in Aggregate Commitment
Amount.


 


So long as no Default has occurred and is continuing,
the Borrower shall have the right from time to time to increase the Aggregate
Commitment up to a maximum of $500,000,000 by obtaining the Administrative
Agent’s prior written approval and either adding new banks as Lenders or
obtaining the agreement, which shall be at such Lender’s or Lenders’ sole
discretion, of one or more of the then-current Lenders to increase its or their
Commitments.  Such increases shall be
evidenced by the execution and delivery of an Amendment Regarding Increase in
the form of Exhibit J attached hereto by the Borrower, the Administrative
Agent and the new bank or existing Lender providing such additional Commitment,
a copy of which shall be forwarded to each Lender by the Administrative Agent
promptly after execution thereof.  On
the effective date of each such increase in the Aggregate Commitment, the
Borrower and the Administrative Agent shall cause the new or existing Lenders
providing such increase, by either funding more than its or their Percentage of
new ratable Advances made on such date or purchasing shares of outstanding
ratable Loans held by the other Lenders or a combination thereof, to hold its
or their Percentage of all ratable Advances outstanding at the close of
business on such day; provided that Borrower shall pay any selling Lender
funding losses to the same extent as would be required under Section 4.4 in
respect of a prepayment.  The Lenders
agree to cooperate in any required sale and purchase of outstanding ratable
Advances to achieve such result.  In no
event will such new or existing Lenders providing the increase be required to
fund or purchase a portion of any Competitive Bid Loan or Swing Line Loan to
comply with this Section on such date. 
In no event shall the Aggregate Commitment exceed $500,000,000 without
the approval of all of the Lenders.


 


2.24         Usury.


 


This Agreement and the Note are subject to the express
condition that at no time shall Borrower be obligated or required to pay
interest on the principal balance of the Loan at a rate which could subject any
Lender (including the Swing Line Lender) to either civil or criminal liability
as a result of being in excess of the Maximum Legal Rate.  If by the terms of this Agreement or the
Loan Documents, Borrower is at any time required or obligated to pay interest
on the principal balance due hereunder at a rate in excess of the Maximum Legal
Rate, the interest rate or the Default Rate, as the case may be, shall be
deemed to be immediately reduced to the Maximum Legal Rate and all previous
payments in excess of the Maximum Legal Rate shall be deemed to have been
payments in reduction of principal and not on account of the interest due
hereunder.  All sums paid or agreed to
be paid to Lender for the use, forbearance, or


 


36

















 


detention of the sums due under the Loan, shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term of the Loan until payment in full so that the
rate or amount of interest on account of the Loan does not exceed the Maximum
Legal Rate of interest from time to time in effect and applicable to the Loan
for so long as the Loan is outstanding.


 


2.25         Application
of Moneys Received.


 


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


 


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


 


(ii)           to the reimbursement of any amounts
due to the Lenders in accordance with Article 4;


 


(iii)          to the payment of any fee due pursuant
to Section 3.8(b) in connection with the issuance of a Facility Letter of
Credit to the Issuing Bank, to the payment of the Facility Fee to the Lenders,
if then due, in accordance with their Percentages and to the payment of the
Administrative Agent’s Fee to the Administrative Agent if then due;


 


(iv)          (a) in case the entire unpaid
principal of the Facility shall not have become due and payable, the whole
amount received as interest and Facility Letter of Credit Fee then due to the
Lenders (other than a Defaulting Lender) as their respective Percentages appear
(except to the extent there are Swing Line Loans or Competitive Bid Loans
outstanding in which event the full amount of interest attributable to the
Swing Line Loans and Competitive Bid Loans shall be payable to the Swing Line
Lender and Competitive Bid Lenders, respectively, unless the Swing Line Lender
or Competitive Bid Lender shall be a Defaulting Lender), together with the
whole amount, if any, received as principal first to the Swing Line Lender,
unless the Swing Line Lender shall be a Defaulting Lender, to repay any
outstanding Swing Line Loans and then to the Lenders as their respective Funded
Percentages appear, or (b) in case the entire unpaid principal of the
Facility shall have become due and payable, as a result of a Default or otherwise,
to the payment of the whole amount then due and payable on the Loan for
principal, together with interest thereon at the Default Rate or the interest
rate, as applicable, to the Swing Line Lender, unless the Swing Line Lender
shall be a Defaulting Lender, for all such amounts due in connection with Swing
Line Loans and then to the Lenders (other than a Defaulting Lender) as their
respective Funded Percentages appear until paid in full; and then to the Letter
of Credit Collateral Account until the full amount of Facility Letter of Credit
Obligations is on deposit therein; and


 


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


 


37

















 


ARTICLE III.


 


THE
LETTER OF CREDIT SUBFACILITY


 


3.1           Obligation to Issue.


 


Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of the Borrower herein
set forth, the Issuing Bank hereby agrees to issue for the account of Borrower,
one or more Facility Letters of Credit in accordance with this Article III,
from time to time during the period ending on the Business Day prior to the
Facility Termination Date.


 


3.2           Types and Amounts.


 


The Issuing Bank shall not except with the prior
written consent of all Lenders:


 


(i)            issue any Facility Letter of Credit
if the aggregate maximum amount then available for drawing under Letters of
Credit issued by such Issuing Bank, after giving effect to the Facility Letter
of Credit requested hereunder, shall exceed any limit imposed by law or
regulation upon such Issuing Bank provided, in such event, the Borrower shall
have the right to select (with the approval of the alternate Issuing Bank but
not the other Lenders) an alternate Issuing Bank which shall be one of the
Lenders;


 


(ii)           issue any Facility Letter of Credit
if, after giving effect thereto, the aggregate Facility Letter of Credit
Obligations would exceed $30,000,000 or the Aggregate Outstanding Credit
Exposure would exceed the Aggregate Commitment;


 


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


 


(iv)          issue any Facility Letter of Credit
having an expiration date which is more than fifteen (15) months after the date
of its issuance.


 


3.3           Conditions.


 


In addition to being subject to the satisfaction of
the conditions contained in Section 5.2 hereof, the obligation of the Issuing
Bank to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:


 


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


 


38

















 


of the Loan Documents
shall control) and the proposed Facility Letter of Credit shall be reasonably
satisfactory to the Issuing Bank as to form and content;


 


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


 


(iii)          there shall not exist any Default or
Unmatured Default.


 


3.4           Procedure for Issuance of Facility
Letters of Credit.


 


(a)           Borrower shall give the Issuing Bank
and the Administrative Agent at least five (5) Business Days’ prior written
notice of any requested issuance of a Facility Letter of Credit under this
Agreement (a “Letter of Credit Request”) (except that, in lieu of such written
notice, the Borrower may give the Issuing Bank and the Administrative Agent
telephonic notice of such request if confirmed in writing by delivery to the
Issuing Bank and the Administrative Agent (i) by the close of business on such
day (A) of a telecopy of the written notice required hereunder which has been signed
by an Authorized Officer, or (B) of a telex containing all information required
to be contained in such written notice and (ii) promptly (but in no event later
than the requested date of issuance) of the written notice required hereunder
containing the original signature of an Authorized Officer); such notice shall
specify:


 


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


 


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


 


3)             the date on which such requested Facility Letter of
Credit is to expire which date (exclusive of automatic extension periods so
long as the Facility Letter of Credit gives the Issuing Bank the right to issue
a notice that the expiration date will not be extended) shall be a Business Day
and shall in no event be later than the earlier of fifteen months after the
Issuance Date and the Business Day immediately preceding the Facility
Termination Date;


 


4)             the purpose for which such Facility Letter of Credit is
to be issued (such purpose shall comply with the requirements of
Section 7.2);


 


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


 


39

















 


6)             any special language required to be included in the
Facility Letter of Credit.


 


At the time such request
is made, the Borrower shall also provide the Administrative Agent and the
Issuing Bank with a copy of the form of the Facility Letter of Credit that the
Borrower is requesting be issued, which shall be subject to the reasonable
approval of the Issuing Bank and Administrative Agent.  Such notice, to be effective, must be
received by such Issuing Bank and the Administrative Agent not later than 2:00
p.m. (Chicago time) on the last Business Day on which notice can be given under
this Section 3.4(a).  Administrative
Agent shall promptly but in no event later than three (3) Business Days prior
to the Issuance Date give a copy of the Letter of Credit Request to the other
Lenders.  Borrower shall also deliver
the compliance certificate required in Section 5.2 together with each
Letter of Credit Request.


 


(b)           Subject to the terms and conditions
of this Article III and provided that the applicable conditions set forth in
Section 5.2 hereof have been satisfied, such Issuing Bank shall, on the
Issuance Date, issue a Facility Letter of Credit on behalf of the Borrower in
accordance with the Letter of Credit Request and the Issuing Bank’s usual and
customary business practices unless the Issuing Bank has actually received (i)
written notice from the Borrower specifically revoking the Letter of Credit
Request with respect to such Facility Letter of Credit, or (ii) written or
telephonic notice from the Administrative Agent stating that the issuance of
such Facility Letter of Credit would violate Section 3.2.


 


(c)           The Issuing Bank shall give the
Administrative Agent and the Borrower written or telex notice, or telephonic
notice confirmed promptly thereafter in writing, of the issuance of a Facility
Letter of Credit (the “Issuance Notice”) and Administrative Agent shall
promptly give a copy of the Issuance Notice to the other Lenders.


 


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


 


3.5           Reimbursement Obligations; Duties
of Issuing Bank.


 


(a)           The Issuing Bank shall promptly
notify the Borrower and the Administrative Agent of any draw under a Facility
Letter of Credit, and the Administrative Agent shall promptly notify the other
Lenders that such draw has occurred. 
Any such draw shall constitute an Advance of the Facility in the amount
of the Reimbursement Obligation with respect to such Facility Letter of Credit
and shall bear interest from the date of the relevant drawing(s) under the
pertinent Facility Letter of Credit at a rate selected by Borrower in
accordance with Section 2.10 hereof; provided that if any Default or an
Unmatured Default involving the payment of money exists at the time of any such
drawing(s), then the Borrower shall reimburse the Issuing Bank for drawings under
a Facility Letter of Credit issued by the Issuing Bank no later than the next
succeeding Business Day after the payment by the Issuing Bank and until repaid
such Reimbursement Obligation shall bear interest from the date funded at the
Default Rate.


 


(b)           Any action taken or omitted to be
taken by the Issuing Bank under or in connection with any Facility Letter of
Credit, if taken or omitted in the absence of willful misconduct or gross
negligence, shall not put the Issuing Bank under any resulting liability to


 


40

















 


Borrower
or any Lender or, provided that such Issuing Bank has complied with the
procedures specified in Section 3.4, relieve a Lender of its obligations
hereunder to the Issuing Bank. In determining whether to pay under any Facility
Letter of Credit, the Issuing Bank shall have no obligation relative to the
Lenders other than to confirm that any documents required to be delivered under
such Letter of Credit appear to have been delivered in compliance, and that
they appear to comply on their face, with the requirements of such Letter of
Credit.


 


3.6           Participation.


 


(a)           Immediately upon issuance by the
Issuing Bank of any Facility Letter of Credit in accordance with the procedures
set forth in Section 3.4, each Lender shall be deemed to have irrevocably
and unconditionally purchased and received from the Issuing Bank, without
recourse, representation or warranty, an undivided interest and participation
equal to such Lender’s Percentage in such Facility Letter of Credit (including,
without limitation, all obligations of the Borrower with respect thereto) and
any security therefor or guaranty pertaining thereto.  Each Lender’s obligation to make further Loans to the Borrower
(other than any payments such Lender is required to make under subparagraph (b)
below) or issue any letters of credit on behalf of Borrower shall be reduced by
such Lender’s Percentage of the undrawn portion of each Facility Letter of
Credit outstanding.


 


(b)           In the event that the Issuing Bank
makes any payment under any Facility Letter of Credit and the Borrower shall
not have repaid such amount to the Issuing Bank pursuant to Section 3.7 hereof,
the Issuing Bank shall promptly notify the Administrative Agent, which shall
promptly notify each Lender of the same, and each Lender shall promptly and
unconditionally pay to the Administrative Agent for the account of the Issuing
Bank the amount of such Lender’s Percentage of the unreimbursed amount of such
payment, and the Administrative Agent shall promptly pay such amount to the
Issuing Bank.  Notwithstanding the
foregoing, unless Borrower shall notify Administrative Agent of Borrower’s
intent to repay the Reimbursement Obligation on the date of the related drawing
under any Facility Letter of Credit, such Reimbursement Obligation shall
simultaneously with such drawing be converted to and become a Prime Loan as set
forth in Section 2.10.  The failure of
any Lender to make available to the Administrative Agent for the account of any
Issuing Bank its Percentage of the unreimbursed amount of any such payment
shall not relieve any other Lender of its obligation hereunder to make
available to the Administrative Agent for the account of such Issuing Bank its
Percentage of the unreimbursed amount of any payment on the date such payment
is to be made, but no Lender shall be responsible for the failure of any other
Lender to make available to the Administrative Agent its Percentage of the
unreimbursed amount of any payment on the date such payment is to be made.  Any Lender which fails to make any payment
required pursuant to this Section 3.6(b) shall be deemed to be a
Defaulting Lender hereunder.


 


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


 


(d)           Upon the request of the
Administrative Agent or any Lender, an Issuing Bank shall furnish to such
Administrative Agent or Lender copies of any Facility Letter of Credit


 


41

















 


to which
that Issuing Bank is party and such other documentation as may reasonably be
requested by the Administrative Agent or Lender.


 


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


 


3.7           Payment of Reimbursement
Obligations.


 


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


 


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


 


(ii)           the existence of any claim, setoff,
defense or other right which the Borrower may have at any time against a
beneficiary named in a Facility Letter of Credit or any transferee of any
Facility Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, the Issuing Bank, any Lender, or any other
Person, whether in connection with this Agreement, any Facility Letter of
Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transactions between the Borrower and the beneficiary
named in any Facility Letter of Credit);


 


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


 


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


 


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


 


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


 


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3.8           Compensation for Facility Letters
of Credit.


 


(a)           The Borrower shall pay to the
Administrative Agent, for the ratable account of the Lenders, based upon the
Lenders’ respective Percentages, a per annum fee (the “Facility Letter of
Credit Fee”) with respect to each Facility Letter of Credit that is equal to
the LIBOR Applicable Margin in effect from time to time.  The Facility Letter of Credit Fee relating
to any Facility Letter of Credit shall be due and payable in arrears in equal
installments on the first Business Day of each month following the issuance of
any Facility Letter of Credit and, to the extent any such fees are then due and
unpaid, on the Facility Termination Date. 
The Administrative Agent shall promptly remit such Facility Letter of
Credit Fees, when paid, to the other Lenders in accordance with their
Percentages thereof.  The Borrower shall
not have any liability to any Lender for the failure of the Administrative
Agent to promptly deliver funds to any such Lender and shall be deemed to have
made all such payments on the date the respective payment is made by the
Borrower to the Administrative Agent, provided such payment is received by the
time specified in Section 2.16 hereof.


 


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


 


3.9           Letter of Credit Collateral Account.


 


The Borrower hereby agrees that it will, if required
pursuant to Section 9.1, maintain a special collateral account (the “Letter of
Credit Collateral Account”) at the Administrative Agent’s office at the address
specified pursuant to Section 14.1, in the name of the Borrower but under the
sole dominion and control of the Administrative Agent, for the ratable benefit
of the Lenders, and in which the Borrower shall have no interest other than as
set forth in Section 9.1.  Such
Letter of Credit Collateral Account shall be funded to the extent required by
Section 9.1.  In addition to the
foregoing, the Borrower hereby grants to the Administrative Agent, for the
ratable benefit of the Lenders, a properly perfected security interest in and
to the Letter of Credit Collateral Account, any funds that may hereafter be on
deposit in such account and the proceeds thereof.


 


ARTICLE IV.


 


YIELD
PROTECTION; TAXES


 


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


 


43

















 


applicable
Lending Installation with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency:


 


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


 


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


 


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


 


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


 


4.2           Changes in Capital Adequacy
Regulations.  If a Lender
reasonably determines the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such Lender or any
corporation controlling such Lender is increased as a result of a Change (as
hereinafter defined), then, within 15 days of written demand by such Lender,
the Borrower shall pay such Lender the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital which such
Lender determines is attributable to this Agreement, its Loans, its interest in
the Facility Letters of Credit, or its Commitment to make Loans hereunder or
participate in or issue Facility Letters of Credit (after taking into account
such Lender’s policies as to capital adequacy).  “Change” means (i) any change after the date of this Agreement in
the Risk-Based Capital Guidelines or (ii) any adoption of or change in any
other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of
law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. 
“Risk-Based Capital Guidelines” means (i) the risk-based capital
guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing
the July 1988 report of the Basle Committee on Banking Regulation and
Supervisory Practices Entitled “International Convergence of Capital
Measurements and Capital Standards,” including


 


44

















 


transition
rules, and any amendments to such regulations adopted prior to the date of this
Agreement.


 


4.3           Availability of Types of Advances.  If any Lender determines that maintenance of
its LIBOR Loans at a suitable Lending Installation would violate any applicable
law, rule, regulation, or directive, whether or not having the force of law, or
if the Required Lenders determine that (i) deposits of a type and maturity
appropriate to match fund LIBOR Advances are not available or (ii) the interest
rate applicable to LIBOR Advances does not accurately reflect the cost of
making or maintaining LIBOR Advances, then the Administrative Agent shall
suspend the availability of LIBOR Advances and require any affected LIBOR
Advances to be repaid or converted to Prime Rate Advances, subject to the
payment of any funding indemnification amounts required by Section 4.4.


 


4.4           Funding Indemnification.  If any payment of a LIBOR Advance occurs on
a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a LIBOR Advance is not
made on the date specified by the Borrower for any reason other than default by
the Lenders, the Borrower will indemnify each Lender for any loss or cost incurred
by it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such LIBOR
Advance.


 


4.5           Taxes.


 


(i)            All payments by the Borrower to or
for the account of any Lender or the Administrative Agent hereunder or under
any Note shall be made free and clear of and without deduction for any and all
Taxes.  If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (a) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
4.5) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (b) the Borrower shall make such deductions, (c) the Borrower shall pay
the full amount deducted to the relevant authority in accordance with applicable
law and (d) the Borrower shall furnish to the Administrative Agent the original
copy of a receipt evidencing payment thereof within 30 days after such payment
is made.


 


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


 


(iii)          The Borrower hereby agrees to
indemnify the Administrative Agent and each Lender for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed
on amounts payable under this Section 4.5) paid by the Administrative Agent or
such Lender and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. 
Payments due under this indemnification shall be made within 30


 


45

















 


days of the date the
Administrative Agent or such Lender makes demand therefor pursuant to Section
4.6.


 


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


 


(v)           For any period during which a
Non-U.S. Lender has failed to provide the Borrower with an appropriate form
pursuant to clause (iv), above (unless such failure is due to a change in
treaty, law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring subsequent to
the date on which a form originally was required to be provided), such Non-U.S.
Lender shall not be entitled to indemnification under this Section 4.5 with
respect to Taxes imposed by the United States; provided that, should a
Non-U.S. Lender which is otherwise exempt from or subject to a reduced rate of
withholding tax become subject to Taxes because of its failure to deliver a
form required under clause (iv), above, the Borrower shall take such steps as
such Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to
recover such Taxes.  If a Non-U.S.
Lender recovers Taxes that were previously paid by Borrower on behalf of such
Non-U.S. Lender, then such recovered amount shall be paid to Borrower.


 


(vi)          Any Lender that is entitled to an
exemption from or reduction of withholding tax with respect to payments under
this Agreement or any Note pursuant to the law of any relevant jurisdiction or
any treaty shall deliver to the


 


46

















 


Borrower (with a copy to the Administrative Agent), at
the time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.


 


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


 


4.6           Lender Statements; Survival of
Indemnity.  To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its LIBOR Loans to reduce any liability of the
Borrower to such Lender under Sections 4.1, 4.2 and 4.5 or to avoid the
unavailability of LIBOR Advances under Section 4.3, so long as such designation
is not, in the judgment of such Lender, disadvantageous to such Lender.  Each Lender shall deliver a written statement
of such Lender to the Borrower (with a copy to the Administrative Agent) as to
the amount due, if any, under Section 4.1, 4.2, 4.4 or 4.5.  Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrower in the
absence of manifest error. 
Determination of amounts payable under such Sections in connection with
a LIBOR Loan shall be calculated as though each Lender funded its LIBOR Loan
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the LIBOR Rate applicable to such
Loan, whether in fact that is the case or not. 
Unless otherwise provided herein, the amount specified in the written
statement of any Lender shall be payable on demand after receipt by the
Borrower of such written statement.  The
obligations of the Borrower under Sections 4.1, 4.2, 4.4 and 4.5 shall survive
payment of the Obligations and termination of this Agreement for a period of
one year.


 


4.7           Limitation on Borrower’s Liability.  The Borrower shall not be obligated to
compensate any Lender pursuant to Section 4.1, 4.2 or 4.4 for any amounts
attributable to a period more than one year prior to such Lender’s written
notice under Section 4.6 of its intention to seek compensation under Section
4.1, 4.2 or 4.4.


 


47

















 


ARTICLE V.


 


CONDITIONS
PRECEDENT


 


5.1           Initial Advance.


 


The Lenders shall not be required to make the initial
Advance hereunder unless (a) the Borrower shall have paid all fees then due and
payable to the Lenders, and the Administrative Agent hereunder, and (b) the
Borrower shall have furnished to the Administrative Agent, in form and
substance satisfactory to the Lenders and their counsel and with sufficient
copies for the Lenders, the following:


 


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


 


(ii)           Certified copies of the articles of
incorporation, limited partnership certificate, limited liability company
agreement, declaration of trust or other organizational document of the
Borrower with all amendments and certified by the appropriate governmental
officer of the state of organization as of a recent date, and with respect to
each Subsidiary, Qualifying Investment Affiliate and Special Qualifying
Investment Affiliate, a certificate of no change with regard to the applicable
aforementioned organizational documents and amendments (or copies of any
amendments);


 


(iii)          Certificates of good standing for the
Borrower, each Subsidiary and each Qualifying Investment Affiliate and Special
Qualifying Affiliate certified by the appropriate governmental officer of the
state of organization, and foreign qualification certificates for the Borrower,
certified by the appropriate governmental officer, for each jurisdiction where
an Unencumbered Asset is located and each other jurisdiction where the failure
to so qualify or be licensed (if required) would have a Material Adverse
Effect;


 


(iv)          Copies, certified by an officer of the
Borrower, of its by-laws, partnership agreement, operating agreement or similar
document, to the extent applicable together with all amendments thereto, and
with respect to each Subsidiary, Qualifying Investment Affiliate and Special
Qualifying Investment Affiliate, a certificate of no change with regard to the
applicable aforementioned documents and amendments (or copies of any
amendments);


 


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


 


(vi)          Copies, certified by the Secretary or
Assistant Secretary, of the Borrower’s Board of Directors’ resolutions (and
resolutions of other bodies, if any


 


48

















 


are deemed necessary by
counsel for any Lender) authorizing the Advances provided for herein and the
execution, delivery and performance of the Loan Documents to be executed and
delivered by the Borrower hereunder;


 


(vii)         A written opinion of the Borrower’s
counsel, addressed to the Lenders in form satisfactory to Administrative Agent;


 


(viii)        A certificate, signed by an officer of
the Borrower, stating that on the Closing Date and on the initial Borrowing
Date no Default or Unmatured Default has occurred and is continuing and that
all representations and warranties of the Borrower contained herein are true
and correct as of the Closing Date and initial Borrowing Date as and to the
extent set forth herein;


 


(ix)           The most recent financial statements
of the Borrower and a certificate from an Authorized Officer of the Borrower
that no change in the Borrower’s financial condition that would have a Material
Adverse Effect has occurred since December 31, 2002;


 


(x)            UCC financing statement, judgment,
and tax lien searches with respect to the Borrower, any Subsidiary, any
Qualifying Investment Affiliate and any Special Qualifying Investment Affiliate
from the States of Maryland and Illinois and other states where they own
Unencumbered Assets, and the county in which Borrower maintains its principal
place of business;


 


(xi)           Evidence of sufficient Unencumbered
Assets (which evidence may include pay-off letters (together with evidence of
payment or a direction of Borrower to use a portion of the proceeds of the
Advances to repay such Indebtedness), mortgage releases and/or title policies)
to assist the Administrative Agent in determining the Borrower’s compliance
with the covenants set forth in Article VII herein;


 


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


 


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


 


(xiv)        Operating statements for each Property
and other evidence of income and expenses to assist the Administrative Agent in
determining Borrower’s compliance with the covenants set forth in Article VII
herein;


 


(xv)         A copy of the standard lease form
generally used at the Properties;


 


(xvi)        Evidence that the insurance coverage
required in Section 6.17 is in full force and effect; and


 


49

















 


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


 


5.2           Conditions to Each Advance, Issuance
of Facility Letter of Credit and Continuation/Conversion.


 


The following conditions must be satisfied as a
condition precedent to the making of an Advance (including Swing Line Loans but
not including Revolving Loans made for the purpose of repaying Swing Line Loans
as provided in Section 2.,13), the issuance of a Facility Letter of Credit, or
the continuation of a LIBOR Advance or conversion of an existing Advance into a
LIBOR Advance:


 


(i)            There exists no Default or Unmatured
Default;


 


(ii)           The representations and warranties
contained in Article VI are true and correct as of such Borrowing Date,
Issuance Date, or date of conversion and/or continuation as and to the extent
set forth therein, except to the extent any such representation or warranty is
stated to relate solely to an earlier date, in which case such representation
or warranty shall be true and correct on and as of such earlier date and except
for Property Breaches, in which case the compliance certificate shall contain a
calculation of the financial covenants with and without including the Property
with respect to which there is a Property Breach and demonstrate compliance
with such covenants both with and without inclusion of such Property; and


 


(iii)          All legal matters incident to the
making of such Advance shall be reasonably satisfactory to the Lenders and
their counsel.


 


Each Borrowing Notice, Swing Line Borrowing Notice,
Letter of Credit Request, and Conversion/Continuation Notice shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 5.2(i) and (ii) have been satisfied. 
Borrower shall also furnish a duly completed compliance certificate in
substantially the form of Exhibit E hereto (including all schedules or exhibits
if applicable) as a condition to making an Advance or issuing a Facility Letter
of Credit; provided that although the covenants in Section 7.21 must be
satisfied at all times (and any deviations therefrom noted on the compliance
certificate) the detailed calculations contained in Schedule I of the
compliance certificate shall be based on the most recent quarterly information
available.


 


ARTICLE VI.


 


REPRESENTATIONS
AND WARRANTIES


 


The Borrower represents and warrants to the Lenders
that as of the date hereof, and as of each Borrowing Date, Issuance Date and
each conversion and/or continuation (except as otherwise disclosed to and
approved by the Required Lenders):


 


50

















 


6.1           Existence.


 


It is duly organized, validly existing and in good
standing under the laws of the State of Maryland, with its principal place of
business in Oakbrook, Illinois, and is duly qualified as a foreign trust, properly
licensed (if required), in good standing and has all requisite authority to
conduct its business in each jurisdiction in which the laws of such
jurisdiction requires it to be so qualified, except where the failure to be so
qualified or to obtain such authority would not have a Material Adverse
Effect.  Each of its Subsidiaries and
Investment Affiliates is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization and has all requisite
authority to conduct its business in each jurisdiction in which it owns
Property, and except where the failure to be so qualified or to obtain such
authority would not have a Material Adverse Effect, in each other jurisdiction
in which it conducts business.


 


6.2           Authorization
and Validity.


 


It has the power and authority and legal right to
execute and deliver the Loan Documents and to perform its obligations
thereunder.  The execution and delivery
by it of the Loan Documents and the performance of its obligations thereunder
have been duly authorized by proper proceedings, and the Loan Documents
constitute legal, valid and binding obligations of the Borrower enforceable
against it in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally and general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).


 


6.3           No
Conflict; Government Consent.


 


Neither the execution and delivery by it of the Loan
Documents, nor the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate in any material respect any
law, rule, regulation, order, writ, judgment, injunction, decree or award binding
on, respectively, the Borrower or any of its Subsidiaries, Qualifying
Investment Affiliates or Special Qualifying Investment Affiliates or any of
such entities’ articles of incorporation, by-laws, certificate of limited
partnership, partnership agreement or operating agreement, as the case may be,
or the provisions of any indenture, declaration of trust, instrument or
agreement to which any entity is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, or
result in the creation or imposition of any Lien in, of or on the Property of
such entity pursuant to the terms of any such indenture, instrument or
agreement.  No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with the execution, delivery and performance of, or the legality, validity,
binding effect or enforceability of, any of the Loan Documents.


 


6.4           Financial Statements; Material
Adverse Change.


 


The most recent consolidated financial statements of
the Borrower and its Subsidiaries delivered to the Lenders prior to the date
that this representation is made were prepared in accordance with GAAP in
effect on the date such statements were prepared and fairly present the
consolidated financial condition and operations of the Borrower and its
Subsidiaries at such date and the consolidated results of their operations for
the period then ended.  Since the date
of such financial statements, there has been no change in the business,
Property, results of operations or


 


51

















 


financial condition of the Borrower and its Subsidiaries which have or
could be reasonably expected to have a Material Adverse Effect.


 


6.5           Taxes.


 


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


 


6.6           Litigation and Contingent
Obligations.


 


Except as set forth on Schedule 7, there is no
litigation, arbitration, governmental investigation or proceeding pending or,
to the knowledge of any of its officers, threatened in a writing received by
Borrower, a Subsidiary, a Qualifying Investment Affiliate or a Special
Qualifying Investment Affiliate, against or affecting the Borrower or any of
its Subsidiaries or Investment Affiliates which, if adversely determined, would
have a Material Adverse Effect.  Except
as disclosed on Schedule 8, it has no material contingent obligations not
provided for or disclosed in the financial statements referred to in
Section 7.1, which would have or could be reasonably expected to have a
Material Adverse Effect.


 


6.7           Subsidiaries.


 


Schedule 1 hereto contains an accurate list of all of
the presently existing Subsidiaries and Investment Affiliates of Borrower,
setting forth their respective jurisdictions of formation, the percentage of
their respective Capital Stock owned by it or its Subsidiaries, the percentage
economic interest in such entity, Properties owned and a description or its
business and with respect to Investment Affiliates, whether such Investment
Affiliate constitutes a Qualifying Investment Affiliate or Special Qualifying
Investment Affiliate.  All of the issued
and outstanding shares of Capital Stock of such Subsidiaries and, to Borrower’s
knowledge, such Investment Affiliates have been duly authorized and issued and
are fully paid and non-assessable.


 


6.8           ERISA.


 


The Unfunded Liabilities of all Single Employer Plans
do not in the aggregate exceed $1,000,000. 
Neither the Borrower nor any other member of the Controlled Group has
incurred any withdrawal liability to Multiemployer Plans in excess of $250,000
in the aggregate.  If withdrawals from
all Multiemployer Plans occurred, the liability would not exceed $250,000.  Each Plan and, to Borrower’s knowledge, each
Multiemployer Plan, complies in all material respects with all applicable requirements
of law and regulations and Borrower and all members of the Controlled Group
have complied in all material respects with ERISA and the Code with respect to
each Plan.  No Reportable Event has
occurred with respect to any Plan, neither the


 


52

















 


Borrower nor any other member of the Controlled Group has withdrawn
from any Plan or Multiemployer Plan or initiated steps to do so, and no steps
have been taken to reorganize or terminate any Plan or to Borrower’s knowledge
Multiemployer Plan.  Neither Borrower
nor any member of the Controlled Group has any Plans or is a party to any
collective bargaining agreements other than those listed on Schedule 4.  There is no accumulated funding deficiency
(as defined in Section 412 of the Code or Section 302 of ERISA)
outstanding which could reasonably be expected to have a Material Adverse
Effect, there is no lien outstanding under Section 412 of the Code or
Section 302 of ERISA with respect to assets of Borrower or any member of
the Controlled Group and no requirement to provide security under
Section 401(a)(29) of the Code or Section 307 of ERISA has been or is
reasonably expected to be imposed on assets of Borrower or any member of the
Controlled Group.  No liability to the
PBGC or the Internal Revenue Service with respect to any Plan or Multiemployer
Plan or trust related thereto has been or is reasonably expected to be incurred
by Borrower or any member of the Controlled Group which could reasonably be
expected to have a Material Adverse Effect. 
Neither Borrower nor any member of the Controlled Group has any
contingent liability with respect to any post-retirement benefits under any
“welfare plan” (as defined in Section 3(1) of ERISA) nor withdrawal
liability or exit fee or charge with respect to any such post-retirement
benefits under any welfare plan which could reasonably be expected to have a
Material Adverse Effect.  Throughout the
term of the Loan, Borrower is not and will not be an “employee benefit plan” as
defined in Section 3(32) of ERISA or a “governmental plan” within the
meaning of Section 3(3) of ERISA, none of the assets of Borrower neither
will constitute “plan assets” of one nor more plans for purposes of
Title I of ERISA and Borrower will not be subject to state statutes
applicable to Borrower regulating investments and fiduciary obligations with
respect to governmental plans.


 


6.9           Accuracy
of Information.


 


All factual information heretofore or
contemporaneously furnished by or on behalf of Borrower or any of its
Subsidiaries or Investment Affiliates to the Administrative Agent or any Lender
for purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all other such factual information hereafter
furnished by or on behalf of Borrower or any of its Subsidiaries or Investment
Affiliates to the Administrative Agent or any Lender will be, true and accurate
(taken as a whole) on the date as of which such information is dated or
certified and not incomplete by omitting to state any material fact necessary
to make such information (taken as a whole) not misleading at such time.  There are no facts, events or conditions
directly and specifically affecting Borrower, its Subsidiaries or any
Investment Affiliate known to Borrower and not disclosed to Administrative
Agent or not disclosed in the information furnished by or on behalf of
Borrower, its Subsidiaries or Investment Affiliates, which, in the aggregate,
have or could be reasonably expected to have a Material Adverse Effect.


 


6.10         Regulation U.


 


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


 


6.11         Material
Agreements.


 


Neither it nor any Subsidiary, Qualifying Investment
Affiliate or Special Qualifying Investment Affiliate is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which


 


53

















 


default could have a
Material Adverse Effect, or (ii) except as disclosed on Schedule 9 any
agreement or instrument evidencing or governing Indebtedness.


 


6.12         Compliance
With Laws.


 


Except as set forth in Schedule 6 it and its
Subsidiaries, Qualifying Investment Affiliates and Special Qualifying
Investment Affiliates have complied in all material respects, to Borrower’s
knowledge, with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except where such
non-compliance would not have a Material Adverse Effect.  Except as disclosed on Schedule 6,
neither Borrower, any Subsidiary, or any Qualifying Investment Affiliate or
Special Qualifying Investment Affiliate, has received any written notice to the
effect that its operations are not in material compliance with any of the
requirements of applicable federal, state and local environmental, health and
safety statutes and regulations or the subject of any federal or state remedial
action responding to a release of any toxic or hazardous waste or substance
into the environment, which non-compliance or remedial action could have a
Material Adverse Effect.


 


6.13         Ownership
of Properties.


 


On the date of this Agreement, Borrower and its
Subsidiaries, Qualifying Investment Affiliates and Special Qualifying
Investment Affiliates will have good title, free of all Liens other than
Permitted Liens, to all of the Property and assets reflected in the financial
statements as owned by it and as set forth on Schedule 2.


 


6.14         Investment
Company Act.


 


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


 


6.15         Public
Utility Holding Company Act.


 


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


 


6.16         Solvency.


 


(i)            Immediately after the Closing Date
and immediately following the making of each Loan and after giving effect to
the application of the proceeds of such Loans, (a) the fair value of the assets
of the Borrower and its Subsidiaries on a consolidated basis, at a fair
valuation, will exceed the debts and liabilities, subordinated, contingent or
otherwise, of the Borrower and its Subsidiaries on a consolidated basis; (b)
the present fair saleable value of the Property of the Borrower and its
Subsidiaries on a consolidated basis will be greater than the amount that will
be required to pay the probable liability of the Borrower and its 


54

















 


Subsidiaries on a
consolidated basis on their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute
and matured; (c) the Borrower and its Subsidiaries on a consolidated basis will
be able to pay their debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (d)
the Borrower and its Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the businesses in which they
are engaged as such businesses are now conducted and are proposed to be
conducted after the date hereof.


 


(ii)           It does not intend to, or to permit
any of its Subsidiaries to incur debts beyond its ability to pay such debts as
they mature, taking into account the timing of and amounts of cash to be
received by it or any such Subsidiary and the timing of the amounts of cash to
be payable on or in respect of its Indebtedness or the Indebtedness of any such
Subsidiary.


 


6.17         Insurance.


 


It and its Subsidiaries and the Qualifying Investment
Affiliates and Special Qualifying Investment Affiliates carry insurance on
their Properties with financially sound and reputable insurance companies, in
such amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar projects
in localities where it and its Subsidiaries and the Qualifying Investment
Affiliates and Special Qualifying Investment Affiliates operate, including,
without limitation:


 


(i)            Property and casualty insurance
(including coverage for flood and other water damage for any Property located
in an area identified by the Secretary of Housing and Urban Development or any
successor thereto as an area having special flood hazards pursuant to the
National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of
1973, as amended, or any successor law) in the amount of 100% of the
replacement cost of the improvements at the Property with a waiver of
depreciation;


 


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


 


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


 


6.18         NYSE and
REIT Status.


 


The Borrower’s common shares of beneficial interest
are listed on the New York Stock Exchange and there is no proceeding pending to
delist the Borrower’s common shares of beneficial interest, and the Borrower is
qualified as a real estate investment trust and currently is in compliance with
all applicable provisions of the Code.


 


55

















 


6.19         Environmental
Matters.


 


Except as disclosed in Schedule 5, each of the
following representations and warranties is true and correct except to the
extent that the facts and circumstances giving rise to any such failure to be
so true and correct, in the aggregate, could not reasonably be expected to have
a Material Adverse Effect:


 


(i)            To the knowledge of the Borrower,
the Properties of Borrower, its Subsidiaries, Qualifying Investment Affiliates
and Special Qualifying Investment Affiliates do not contain, any Materials of
Environmental Concern in amounts or concentrations which constitute a violation
of, or could reasonably give rise to liability under, Environmental Laws.


 


(ii)           To the knowledge of Borrower, the
Properties of Borrower and its Subsidiaries and Investment Affiliates and all
operations at the Properties are in compliance with all applicable
Environmental Laws, and there is no contamination at or under such Properties,
or violation of any Environmental Law with respect to such Properties for which
Borrower, its Subsidiaries or Investment Affiliates is or could be liable.


 


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


 


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


 


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


 


56

















 


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


 


6.20         Licenses,
etc.


 


Borrower, its Subsidiaries, Qualifying Investment
Affiliates or Special Qualifying Investment Affiliates have obtained and hold
in full force and effect, all material trademarks, trade names, copyrights,
licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other rights, consents and
approvals which are necessary for the operation of the Properties.


 


6.21         Judgments.


 


There are no judgments, decrees, or orders of any kind
against Borrower, its Subsidiaries, Qualifying Investment Affiliates or any
Special Qualifying Investment Affiliates unpaid of record which would have a
Material Adverse Effect.


 


6.22         Property
Manager.


 


As of the date hereof, the manager of each Property is
the Borrower or a Qualifying Investment Affiliate.


 


6.23         Updated
Schedules.


 


The Borrower may at any time and from time to time
update any Schedule to this Agreement by delivery to the Administrative Agent
of a revised Schedule and, from and after the date of delivery of such updated
Schedule to the Administrative Agent, and its approval by the Required Lenders,
the representations and warranties of the Borrower hereunder shall be deemed to
reflect such revised Schedule.


 


6.24         Unencumbered
Assets.


 


Schedule 2 hereto contains a complete and accurate
description of Unencumbered Assets as of the Closing Date and as supplemented
from time to time including the entity that owns each Unencumbered Asset.  With respect to each Property identified
from time to time as an Unencumbered Asset, Borrower hereby represents and warrants
as follows except to the extent disclosed in writing to the Lenders and
approved by the Required Lenders (which approval shall not be unreasonably
withheld):


 


(a)           No portion of any improvement on the
Unencumbered Asset is located in an area identified by the Secretary of Housing
and Urban Development or any successor thereto as an area having special flood
hazards pursuant to the National Flood Insurance Act of 1968 or the Flood
Disaster Protection Act of 1973, as amended, or any successor law, or, if
located within any such area, Borrower or the respective Qualifying Investment
Affiliate or Special 


 


57

















 


Qualifying
Investment Affiliate has obtained and will maintain the insurance prescribed in
Section 6.17 hereof.


 


(b)           To the Borrower’s knowledge, Borrower
or the respective Qualifying Investment Affiliate or Special Qualifying
Investment Affiliate has obtained all material certificates, licenses and other
approvals, governmental and otherwise, necessary for the operation of the
Unencumbered Asset and the conduct of its business and all required zoning,
building code, land use, environmental and other similar permits or approvals
which it is required to maintain, all of which are in full force and effect as
of the date hereof and not subject to revocation, suspension, forfeiture or
modification.


 


(c)           To the Borrower’s knowledge, the
Unencumbered Asset and the present use and occupancy thereof are in material
compliance with all applicable zoning ordinances (without reliance upon
adjoining or other properties), building codes, land use and Environmental
Laws, laws relating to the disabled including, but not limited to, the
Americans with Disabilities Act to the extent applicable, and other similar
laws (“Applicable Laws”), except to the extent such non-compliance could not
reasonably be expected to have a Material Adverse Effect.


 


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


 


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


 


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


 


(g)           Borrower is not aware of any material
latent or patent structural or other significant deficiency of the Unencumbered
Asset.  The Unencumbered Asset is free
of damage and waste that would materially and adversely affect the value of the
Unencumbered Asset, is in good repair and there is no deferred maintenance
other than ordinary wear and tear.  The
Unencumbered Asset is free from damage caused by fire or other casualty.  There is no pending or, to the actual
knowledge of Borrower threatened condemnation proceedings affecting the
Unencumbered Asset, or any part thereof.


 


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


 


(i)            All improvements on the Unencumbered
Asset lie within the boundaries and building restrictions of the legal
description of record of the Unencumbered Asset, no such improvements encroach
upon easements benefitting the Unencumbered Asset other than 


 


58

















 


encroachments
that do not materially adversely affect the use or occupancy of the
Unencumbered Asset and no improvements on adjoining properties encroach upon
the Unencumbered Asset or easements benefitting the Unencumbered Asset other
than encroachments that do not materially adversely affect the use or occupancy
of the Unencumbered Asset.  All
amenities, access routes or other items that materially benefit the
Unencumbered Asset are under direct control of Borrower or the respective
Qualifying Investment Affiliate or Special Qualifying Investment Affiliate, or
constitute permanent easements that benefit all or part of the Unencumbered
Asset or are public property, and the Unencumbered Asset, by virtue of such
easements or otherwise, is contiguous to a physically open, dedicated all
weather public street, and has the necessary permits for ingress and egress.


 


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


 


(k)           The Unencumbered Asset is assessed
for real estate tax purposes as one or more wholly independent tax lot or lots,
separate from any adjoining land or improvements not constituting a part of
such lot or lots, and no other land or improvements is assessed and taxed
together with the Unencumbered Asset or any portion thereof, or Borrower has
complied with all applicable material requirements of the applicable
jurisdiction necessary to have the Unencumbered Asset assessed as a separate
tax parcel.


 


(l)            With respect to those Unencumbered
Assets in which Borrower or any Qualifying Investment Affiliate or Special
Qualifying Investment Affiliate holds a leasehold estate under a Financeable
Ground Lease, with respect to each such Financeable Ground Lease (i) Borrower
or the respective Qualifying Investment Affiliate or Special Qualifying
Investment Affiliate is the owner of a valid and subsisting interest as tenant
under the Financeable Ground Lease; (ii) the Financeable Ground Lease is in
full force and effect, unmodified and not supplemented by any writing or
otherwise; (iii) all rent, additional rent and other charges reserved therein
have been paid to the extent they are payable to the date hereof; (iv) Borrower
or the respective Qualifying Investment Affiliate or Special Qualifying
Investment Affiliate enjoys the quiet and peaceful possession of the estate
demised thereby, subject to any sublease; (v) the Borrower or the respective
Qualifying Investment Affiliate or Special Qualifying Investment Affiliate is
not in default under any of the terms thereof and there are no circumstances
which, with the passage of time or the giving of notice or both, would
constitute an event of default thereunder; (vi) the lessor under the
Financeable Ground Lease is not in default under any of the terms or provisions
thereof on the part of the lessor to be observed or performed; (vii) the lessor
under the Financeable Ground Lease has satisfied all of its repair or
construction obligations, if any, to date pursuant to the terms of the Financeable
Ground Lease; (viii) Schedule 2 lists all the Financeable Ground Leases to
which any of the Unencumbered Assets are subject and all amendments and
modifications thereto; and (ix) the lessor indicated on Schedule 2 for each
Financeable Ground Lease is the current lessor under the related Financeable
Ground Lease.


 


A breach of any of the representations and warranties
contained in this Section 6.24 with respect to a Property shall
disqualify, unless otherwise approved by the Required Lenders, such Property
from being an Unencumbered Asset but shall not constitute a Default (unless the



 


59

















 


elimination of such Property as an Unencumbered Asset results in a
Default under one of the other provisions of this Agreement including without
limitation Sections 7.21(iv) or 7.21(v)).


 


6.25         Reportable
Transaction.


 


The Borrower does not intend to treat the Advances and
related transactions as being a “reportable transaction” (within the meaning of
Treasury Regulation Section 1.6011-4). 
In the event the Borrower determines to take any action inconsistent
with such intention, it will promptly notify the Agent thereof.


 


ARTICLE VII.


 


COVENANTS


 


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


 


7.1           Financial
Reporting.


 


The Borrower will maintain, for itself and each
Subsidiary, and shall cause each Qualifying Investment Affiliate and Special
Qualifying Investment Affiliate to maintain, a system of accounting established
and administered in accordance with GAAP, and furnish to the Lenders:


 


(i)            as soon as available, but in any
event not later than 45 days after the close of each fiscal quarter, for the
Borrower an unaudited consolidated balance sheet as of the close of each such
period and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Borrower and its Subsidiaries for such period
and the portion of the fiscal year through the end of such period, setting
forth in each case in comparative form the figures for the previous year, all
certified by the Borrower’s chief financial officer or chief accounting
officer;


 


(ii)           As soon as available, but in any
event not later than 45 days after the close of each fiscal quarter, for the
Borrower and its Subsidiaries, related reports in form and substance
satisfactory to the Lenders, all certified by Borrower’s chief financial
officer or chief accounting officer, including a statement of Funds From
Operations, a description of Unencumbered Assets, a listing of capital
expenditures (in the level of detail as disclosed in Borrower’s most recent
Form 10Q), a report listing and describing all newly acquired Properties,
including their cash flow, cost and secured or unsecured Indebtedness assumed
in connection with such acquisition, if any, summary Property information for
all Properties, including, without limitation, their Property Operating Income,
occupancy rates, square footage, property type and date acquired or built, and
such other information as may be requested to evaluate the quarterly compliance
certificate delivered as provided below;


 


60

















 


(iii)          As soon as publicly available but in
no event later than one Business Day after the date such reports are to be
filed with the Securities Exchange Commission, copies of all Form 10Ks, 10Qs,
8Ks, and any other annual, quarterly, monthly or other reports, copies of all
registration statements and any other public information which the Borrower or
any of its Subsidiaries files with the Securities Exchange Commission and to
the extent any of such reports contains information required under the other
subsections of this Section 7.1, the information need not be furnished
separately under the other subsections;


 


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


 


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


 


(vi)          (a) As soon as possible and in any
event within 10 Business Days after the Borrower knows that any Reportable
Event has occurred with respect to any Plan, a statement, signed by the chief
financial officer of Borrower, describing said Reportable Event and within 20
days after such Reportable Event, a statement signed by such chief financial
officer describing the action which Borrower proposes to take with respect
thereto; and (b) within 10 Business Days of receipt, any notice from the
Internal Revenue Service, PBGC or Department of Labor with respect to a Plan
regarding any excise tax, proposed termination of a Plan, prohibited
transaction or fiduciary violation under ERISA or the Code which could result
in any liability to Borrower or any member of the Controlled Group in excess of
$100,000; and (c) within 10 Business Days of filing, any Form 5500 filed by
Borrower with respect to a Plan, or any member of the Controlled Group which
includes a qualified accountant’s opinion.


 


(vii)         As soon as possible and in any event
within 30 days after receipt by the Borrower, a copy of (a) any notice or claim
to the effect that the Borrower or any of its Subsidiaries, Qualifying
Investment Affiliates, or Special Qualifying Investment Affiliates is or may be
liable to any Person as a result of the release by such entity, or any of its
Subsidiaries, or any other Person of any toxic or hazardous waste or substance
into the environment, and (b) any notice alleging


 


61

















 


any violation of any
federal, state or local environmental, health or safety law or regulation by
the Borrower or any of its Subsidiaries or Investment Affiliates, which, in
either case, could be reasonably likely to have a Material Adverse Effect;


 


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


 


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


 


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


 


(xi)           Not later than 45 days after the end
of each quarter, a report on the aging of receivables with respect to each of
the Properties (i.e. 0-29, 30-59, 60-89 and 90 or more days past due) showing
aggregate delinquencies for each of the Properties (including a
characterization of the type of receivable) and trends for the prior four
quarters;


 


(xii)          Not later than 45 days after the end
of each quarter, an unaudited financial statement for each Qualifying
Investment Affiliate or Special Qualifying Investment Affiliate that is not a
Subsidiary that owns an Unencumbered Asset; and


 


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


 


7.2           Use of
Proceeds.


 


(i)            The Borrower will use the proceeds
of the Advances and the Facility Letters of Credit for the general business
purposes of the Borrower, including working capital needs, closing costs, and
interim or other financing for acquisitions of new Projects, construction of
new improvements or expansions of existing improvements on Projects, and to
repay outstanding Indebtedness; and


 


(ii)           The Borrower will not, nor will it
permit any Subsidiary to, use any of the proceeds of the Advances (x) to
purchase or carry any “margin stock” (as defined in Regulation U) or (y) to
fund any tender offer for all or substantially all of another Person’s
outstanding Capital Stock registered with the Securities and Exchange
Commission under the Securities Act of 1933, unless such Person shall have
consented to such tender offer prior to its commencement and the 


 


62

















 


Required Lenders shall
have consented to such use of the proceeds of such Advance.


 


7.3           Notice of
Default.


 


The Borrower will give, and will cause each of its
Subsidiaries and each Qualifying Investment Affiliate and Special Qualifying
Investment Affiliate to give, prompt notice in writing to the Lenders of the
occurrence of any Default or Unmatured Default and of any other development,
financial or otherwise, which could be reasonably likely to have a Material
Adverse Effect.


 


7.4           Conduct
of Business.


 


The Borrower will do, and will cause each of its
Subsidiaries, Qualifying Investment Affiliates, and Special Qualifying
Investment Affiliates to do, all things necessary to remain duly incorporated
and/or duly qualified, validly existing and in good standing as a real estate
investment trust, corporation, general partnership, limited liability company
or limited partnership, as the case may be, in its jurisdiction of
incorporation/formation, except, with respect to any Subsidiary or any
Qualifying Investment Affiliate or Special Qualifying Investment Affiliate
having less than $10,000,000 of Market Capitalization, where the preservation
of its corporate existence, in the good faith business judgment of the Borrower,
is no longer in the best interests of the Borrower and the failure to preserve
its corporate existence would not have a Material Adverse Effect and the
elimination of its Properties from the calculation of financial covenant
compliance would not cause a Default or an Unmatured Default.  The Borrower will maintain all requisite
authority to conduct its business in each jurisdiction in which the Properties
are located and, except where the failure to be so qualified would not have a
Material Adverse Effect, in each jurisdiction required to carry on and conduct
its businesses in substantially the same manner as it is presently conducted,
and, specifically, neither the Borrower nor its Subsidiaries nor the Qualifying
Investment Affiliates and Special Qualifying Investment Affiliates will
undertake any business other than the acquisition, development, ownership,
management, operation and leasing of warehouse/industrial properties and
ancillary businesses specifically related thereto, except that the Borrower and
its Subsidiaries, Qualifying Investment Affiliates and Special Qualifying
Investment Affiliates may invest in other assets subject to the following
limitations with respect to the specified categories of assets:


 


63

















 


	
  Categories of Assets

  	
   

  	
  Total Investment Limitations

  
	
  (i)            Unimproved Land and Developable
  Land (other than the CenterPoint Intermodal Center)

  	
   

  	
  8% of Market
  Capitalization

  
	
   

  	
   

  	
   

  
	
  (ii)           other property holdings (excluding
  cash, Cash Equivalents, the Non-industrial Properties and Indebtedness of any
  Subsidiary or Qualifying Investment Affiliate to the Borrower and
  Indebtedness of CDC or CRS to the Borrower or any Wholly-owned Subsidiary
  incurred in connection with the construction of warehouse/industrial
  properties)

  	
   

  	
  5% of Market
  Capitalization

  
	
   

  	
   

  	
   

  
	
  (iii)          stock holdings other than in
  Subsidiaries and Investment Affiliates and CRS holdings in CDC

  	
   

  	
  5% of Market
  Capitalization

  
	
   

  	
   

  	
   

  
	
  (iv)          mortgages other than Qualified
  Mortgages

  	
   

  	
  5% of Market
  Capitalization

  
	
   

  	
   

  	
   

  
	
  (v)           joint ventures and partnerships
  (including investments in Investment Affiliates)

  	
   

  	
  20% of Market
  Capitalization

  



 


The total investment in
all the foregoing investment categories in the aggregate shall be less than or
equal to thirty percent (30%) of Market Capitalization.  In addition to the foregoing restrictions,
(a) investments in Unimproved Land which is not adjacent to existing
improvements and not under active planning for near term development as
evidenced to the reasonable satisfaction of Administrative Agent shall not
exceed 5% of Market Capitalization, (b) lessee’s interests in operating leases
pursuant to which Borrower, its Subsidiaries or Investment Affiliates operate
any properties shall not exceed 10% of Market Capitalization,  (c)
the total estimated cost of completion of assets under construction, excluding
Presold Assets Under Development and Preleased Assets Under Development, shall
not exceed 10% of Market Capitalization, and (e) the total loans,
advances, and stock holdings of Borrower, its Subsidiaries, the Qualifying
Investment Affiliates and Special Qualifying Investment Affiliates in CDC shall
not exceed 5% of Market Capitalization. 
For the purposes of this Section 7.4, all investments shall be valued in
accordance with GAAP.


 


7.5           Taxes.


 


The Borrower will pay, and will cause each of its
Subsidiaries, Qualifying Investment Affiliates and Special Qualifying
Investment Affiliates to pay, when due all taxes, assessments and governmental
charges and levies upon them of their income, profits or Properties, except
those which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves have been set aside.


 


7.6           Insurance.


 


(i)            The Borrower will, and will cause
each of its Subsidiaries, Qualifying Investment Affiliates and Special
Qualifying Investment Affiliates to, maintain with financially sound and
reputable insurance companies insurance on all its Property in such amounts and
covering such risks as is consistent with sound business practice and in
compliance with the representation in Section 6.17, 


 


64

















 


and the Borrower will
furnish to the Administrative Agent or any Lender upon request full information
as to the insurance carried.


 


(ii)           The Borrower will promptly notify the
Administrative Agent if there has been a termination of any insurance policy or
a material change in coverage or of the credit rating of the insurer providing
such coverage.


 


7.7           Compliance
with Laws.


 


The Borrower will, and will cause each of its
Subsidiaries, Qualifying Investment Affiliates and Special Qualifying
Investment Affiliates to, be in material compliance with all laws, rules and
regulations and with all final orders, writs, judgments, injunctions, decrees or
awards to which they may be subject.


 


7.8           Maintenance
of Properties.


 


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


 


7.9           Inspection.


 


Upon reasonable notice, the Borrower will, and will
cause each of its Subsidiaries, Qualifying Investment Affiliates and Special
Qualifying Investment Affiliates to, permit the Lenders, by their respective
representatives and agents, to inspect any of the Properties, corporate books
and financial records of the Borrower and each of its Subsidiaries, Qualifying
Investment Affiliates and Special Qualifying Investment Affiliates, to examine
and make copies of the books of accounts and other financial records of the
Borrower and each of its Subsidiaries, Qualifying Investment Affiliates and
Special Qualifying Investment Affiliates, and to discuss the affairs, finances
and accounts of the Borrower and each of its Subsidiaries, Qualifying
Investment Affiliates and Special Qualifying Investment Affiliates, and to be
advised as to the same by, their respective officers at such reasonable times
during normal business hours and reasonable intervals as the Lenders may
reasonably designate.


 


7.10         Maintenance
of Status.


 


The Borrower shall at all times (i) maintain the
listing of its common shares of beneficial interest on the New York Stock
Exchange and not take any action that results in a proceeding to delist such
common shares, and (ii) maintain its status as a real estate investment
trust in compliance with all applicable provisions of the Code.


 


7.11         Dividends.


 


The Borrower will not, nor will it permit any
Subsidiary to declare or pay any dividends or make any distributions on its
Capital Stock (other than dividends payable in its own Capital Stock) or
redeem, repurchase or otherwise acquire or retire any of its Capital Stock at
any time outstanding except as provided in this Section 7.11.  Provided there is not a continuing Default


 


65

















 


under Section 8.1 or Section 8.2, and there is not a
continuing Default under Section 8.3 relating to a breach of any of the
covenants contained in Sections 7.20 and 7.21, the Borrower shall be permitted
to redeem, repurchase or otherwise acquire or retire any of its Capital Stock
and declare and pay dividends on their Capital Stock from time to time in
amounts determined by the Borrower, provided, however, that subject to the
terms of the next sentence, in no event shall the Borrower declare or pay
dividends on their Capital Stock if dividends paid in, or with respect to, any
period of four fiscal quarters, in the aggregate, would exceed 90% of Funds
From Operations for such period.  Notwithstanding
the foregoing, unless at the time of distribution there exists a Default in the
payment of principal, interest, or the Facility Fee, the Borrower shall be
permitted to distribute whatever amount of dividends is necessary to maintain
its tax status as a real estate investment trust.


 


 


7.12         Merger; Sale
of Assets.


 


The Borrower will not, nor will it permit any of its
Subsidiaries Qualifying Investment Affiliates, or Special Qualifying Investment
Affiliates to, enter into any merger, consolidation, reorganization or
liquidation or transfer or otherwise dispose of all or a portion of their
Property if such disposition would constitute a “Restricted Disposition,”
except for (i) such transactions that occur between Wholly-Owned
Subsidiaries, (ii) transactions where Borrower is the surviving entity and
there is no change in business conducted or loss of an investment grade rating
on such entity’s long-term unsecured debt and no other Default results from
such transaction, (iii) the sale by a Special Qualifying Investment Affiliate
of all of its assets pursuant to a buy-sell agreement provided that Borrower
remains in compliance with all covenants concerning Unencumbered Assets
contained herein, or (iv) transactions that are approved in advance in
writing by the Lenders.  For purposes of
this Section 7.12, a “Restricted Disposition” shall mean any disposition of
assets (exclusive of Like-Kind Exchanges of one industrial/warehouse property
for another and dispositions of Non-industrial Properties and Presold Assets
Under Development) if such disposition is of assets that (i) when
aggregated with all other assets of the Borrower, its Subsidiaries, Qualifying
Investment Affiliates and Special Qualifying Investment Affiliates previously
disposed of during the fiscal year (exclusive of Like-Kind Exchanges of one
industrial/warehouse property for another and dispositions of Non-industrial
Properties and Presold Assets Under Development), comprise more than 10% of
Market Capitalization for the most recent available quarter or (ii) when
aggregated with all other assets of the Borrower, its Subsidiaries, Qualifying
Investment Affiliates and Special Qualifying Investment Affiliates previously
disposed of (exclusive of Like-Kind Exchanges of one industrial/warehouse
property for another and dispositions of Non-industrial Properties and Presold
Assets Under Development) from the date hereof to the date of such sale
comprise 25% or more of Market Capitalization for the most recent available
quarter.  For purposes of aggregating
the assets disposed, the Market Capitalization attributable to assets disposed
during a period shall be reduced by the Market Capitalization attributable to
assets acquired during the same period.


 


7.13         Transfers
of Unencumbered Assets.


 


Neither the Borrower nor any of its Qualifying Investment
Affiliates shall transfer or otherwise dispose of (other than the creation or
incurrence of Liens permitted under Section 7.16) an Unencumbered Asset
(excluding its Non-industrial Properties and Presold Assets Under Development)
without the prior written consent of the Required Lenders if the 


 


66

















 


transfer or disposition of such Unencumbered Asset, together with the
transfer or disposition of any other Unencumbered Assets (excluding the
Non-industrial Properties and Presold Assets Under Development) which have been
disposed of during the period of four fiscal quarters ending with the quarter
during which such transfer occurs, would cause the Value of Unencumbered Assets
to decrease by more than 20% during such four quarter period, after giving
effect to the Value of Unencumbered Assets acquired or disposed of during such
period or if such transfer would result in a violation of the covenants
contained in Sections 7.20 and 7.21.


 


7.14         Ownership
and Control of Borrower.


 


The Borrower’s management (president, vice president,
senior vice president, secretary, treasurer, executive vice president, chief
financial officer or chief executive officer) and directors shall directly or
indirectly control the ownership (which shall include vested options) of a
minimum 550,000 common shares of the Borrower adjusted for stock splits,
provided that if Borrower’s management and directors fail to maintain such
ownership, such failure shall not constitute a Default unless such failure
continues for six months without approval by the Required Lenders of such lower
level of ownership.


 


7.15         Subsidiaries, Qualifying Investment
Affiliates and Special Qualifying Investment Affiliates.


 


In the event that Borrower shall, directly or
indirectly, transfer or otherwise dispose of the Capital Stock (other than
intercompany transfers where following such transfer the assets of the
Subsidiary or Qualifying Investment Affiliate still meet the requirements for
being an Unencumbered Asset) or other ownership interests in any Subsidiaries
or Qualifying Investment Affiliates, such transfer or disposal shall be treated
as though the applicable Subsidiary or Qualifying Investment Affiliate had
disposed of its assets for purposes of determining whether such disposition is
a Restricted Disposition as defined in Section 7.12 or whether such disposition
requires a written consent of Lenders pursuant to Section 7.13.


 


7.16         Liens.


 


The Borrower will not, nor will it permit any of its
Subsidiaries or Qualifying Investment Affiliates to, create, incur, or suffer
to exist any Lien in, of or on the Property of the Borrower or any of their
Subsidiaries or Qualifying Investment Affiliates except:


 


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


 


(ii)           Liens which arise by operation of
law, such as carriers’, warehousemen’s, landlords’, materialmen and mechanics’
liens and other similar liens arising in the ordinary course of business which
secure payment of obligations not more than 30 days past due or which are being
contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on its books in accordance with GAAP;


 


67

















 


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


 


(iv)          Utility easements, building
restrictions, zoning restrictions, easements and such other encumbrances or
charges against real property as are of a nature generally existing with
respect to properties of a similar character and which do not in any material
way affect the marketability of the same or interfere with the use thereof in
the business of the Borrower or its Subsidiaries or Qualifying Investment
Affiliates;


 


(v)           Liens of any Subsidiary or Investment
Affiliate in favor of the Borrower;


 


(vi)          Liens existing on the date hereof and
described in Schedule 3 hereto; and


 


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


 


Liens permitted pursuant
to this Section 7.16 shall be deemed to be “Permitted Liens”.


 


7.17         Affiliates.


 


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


 


7.18         Interest
Rate Hedging.


 


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


 


68

















 


7.19         Variable
Interest Indebtedness.


 


The Borrower shall not at any time permit the
outstanding principal balance of Indebtedness of the Borrower and its
Subsidiaries, Qualifying Investment Affiliates, or Special Qualifying
Investment Affiliates which bears interest at an interest rate that is not
fixed through the maturity date of such Indebtedness (“Variable Rate Debt”) to
exceed $375,000,000, unless the amount in excess of $375,000,000 is covered by
interest rate caps or other interest rate protection products reasonably
satisfactory to the Required Lenders. 
Notwithstanding the foregoing, Borrower shall be entitled to exclude up
to $75,000,000 of tax exempt bonds from the calculation of Variable Rate Debt.


 


7.20         Consolidated
Net Worth.


 


The Borrower as of the last day of any fiscal quarter,
shall maintain a Consolidated Net Worth of not less than the sum of
(i) $573,225,000 plus (ii) seventy-five percent (75%) of the
aggregate proceeds received by the Borrower (net of customary related fees and
expenses) in connection with any offering of Capital Stock in the Borrower after
March 31, 2003, minus (iii) seventy-five percent (75%) of the amount
expended by Borrower after March 31, 2003 to acquire or redeem its Capital
Stock.


 


7.21         Indebtedness and Cash Flow
Covenants.


 


The Borrower shall not at any time permit:


 


(i)            the ratio of EBITDA to Fully Diluted
Debt Service to be less than 2.00 to 1.0 for the quarter then ended;


 


(ii)           the ratio of EBITDA to Fixed Charges
to be less than 1.75 for the quarter then ended;


 


(iii)          Consolidated Total Indebtedness to
exceed fifty-five percent (55%) of Market Capitalization;


 


(iv)          the Unencumbered Pool Value to be less
than 1.75 times the Consolidated Senior Unsecured Indebtedness;


 


(v)           the ratio obtained by dividing:  (a) the Property Operating Income after
deducting (without duplication) the Capital Expenditure Reserve Amount and an
assumed management fee equal to 3% of gross revenues (excluding tenant
reimbursements) from all Unencumbered Assets qualifying for inclusion in the
calculation of Value of Unencumbered Assets for such quarter by (b) that
portion of Debt Service attributable to Consolidated Unsecured Indebtedness
plus (without duplication) Borrower’s pro rata share (based on economic
interest) of Debt Service for such quarter attributable to unsecured
indebtedness of Qualifying Investment Affiliates and Special Qualifying
Investment Affiliates that own assets qualifying for inclusion in the
calculation of Value of Unencumbered Assets to be less than 2.00 to 1.0 for the
quarter then ended; and


 


69

















 


(vi)          Consolidated Secured Indebtedness to
exceed thirty percent (30%) of Market Capitalization.


 


7.22         Environmental
Matters.


 


The Borrower will, and will cause each of its
Subsidiaries, Qualifying Investment Affiliates and Special Qualifying Investment
Affiliates to:


 


(i)            be in material compliance with, and
use its reasonable efforts to ensure material compliance by all tenants and
subtenants, if any, with all applicable Environmental Laws and obtain and be in
material compliance with and maintain, and use its reasonable efforts to ensure
that all tenants and subtenants obtain and be in material compliance with and
maintain, all material licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws;


 


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


 


(iii)          defend, indemnify and hold harmless
the Administrative Agent, and each Lender, and their respective employees,
agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses arising
out of, or in any way relating to the violation of, noncompliance with or
liability under any Environmental Laws applicable to the operations of the
Borrower, its Subsidiaries, Qualifying Investment Affiliates and Special
Qualifying Investment Affiliates or the Properties for which the Borrower, its
Subsidiaries, Qualifying Investment Affiliates or Special Qualifying Investment
Affiliates are liable or could reasonably be expected to be liable, including,
without limitation, reasonable attorney’s and consultant’s fees, investigation
and laboratory fees, response costs, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification therefor.  This indemnity shall continue in full force
and effect regardless of the termination of this Agreement; and


 


(iv)          prior to the acquisition of a new
Property after the Closing Date, perform or cause to be performed an
environmental investigation, which investigation shall at a minimum comply with
the specifications and procedures 


 


70

















 


attached hereto as
Exhibit H.  In connection with any
such investigation, Borrower shall cause to be prepared a report of such
investigation and make it available to the Administrative Agent, and any Lender
may request that Administrative Agent obtain a copy of such report.  Such report shall be reasonably satisfactory
in form and substance to the Administrative Agent.


 


7.23         Notification
of Rating Change.


 


The Borrower shall notify the Administrative Agent
promptly (but no later than ten days following the occurrence of any of the
following events) if there is any change in the rating assigned to Borrower’s
long term unsecured debt (regardless of whether any such debt is outstanding)
or Facility rating from Moody’s or S&P or any substitute rating agency of
either of such ratings.


 


7.24         Maximum
Revenue from Single Tenant.


 


Borrower shall not permit the rent revenue exclusive
of tenant reimbursements received from a single tenant during any quarter (as
annualized), to exceed 5% of total annualized gross revenue (exclusive of
tenant reimbursements).


 


7.25         Negative
Pledge.


 


Borrower agrees that throughout the term of this
Facility, no “negative pledge” on Unencumbered Assets shall be given to any
other lender.


 


7.26         Manager.


 


The Properties (other than the Non-industrial
Properties) shall at all times be managed by the Borrower or a Qualifying
Investment Affiliate, except as approved by the Administrative Agent, in its
sole discretion for Properties which in the aggregate comprise less than 5% of
the Borrower’s Market Capitalization.


 


7.27         Acceleration
Notice.


 


Borrower agrees that it shall, within ten (10) days
after receipt of written notice that any Indebtedness aggregating $5,000,000 or
more of Borrower or any Subsidiary, Qualifying Investment Affiliate or Special
Qualifying Investment Affiliate has been accelerated, provide written notice to
the Administrative Agent of such acceleration.


 


7.28         Lien
Searches; Title Searches.


 


Borrower shall, upon the Administrative Agent’s
request therefor given from time to time, but not more frequently than once
during the term of this Facility, unless a Default shall have occurred and be
continuing or such Title Search indicates a Lien other than a Permitted Lien or
another state of facts not reasonably satisfactory to the Administrative Agent
and the Required Lenders, pay for (a) reports of UCC, tax lien, judgment and
litigation searches with respect to Borrower and each Qualifying Investment
Affiliate or Special Qualifying Investment Affiliate that owns an Unencumbered
Asset, and (b) searches of title to each of the Properties which are
Unencumbered Assets (each, a “Title Search”). 
All Title Searches and lien searches 


 


71

















 


required under this Agreement shall be conducted by search firms
designated by Administrative Agent in each of the locations designated by the
Administrative Agent.


 


7.29         Additional
Covenants.


 


Borrower will not engage in or knowingly permit any
illegal activities at any Property.


 


7.30         Calculation of Financial Covenants
Upon Property Breaches.


 


In the event of a breach of a representation or
warranty under Article VI or of a covenant under Section 7.5, 7.6, 7.7, 7.8,
7.16, 7.22 or 7.26 (which relates to a Property and which does not have a
Material Adverse Effect (a “Property Breach”)), or if there are environmental
disclosures concerning a Property contained in Schedule 5, Borrower shall
be required to demonstrate financial covenant compliance under applicable
provisions of Article VII both with and without the affected Property for as
long as such breach or condition shall exist.


 


7.31         Securitized
Lease Transactions.


 


Following the occurrence of a Securitized Lease
Transaction, Borrower may be required pursuant to GAAP to record the sale of
the lease as a borrowing so long as it continues to own the Equity Residual (as
such term is defined in the definition of Securitized Lease Transaction), and
therefore include in Indebtedness the amount of proceeds received, and include
in Interest Expense an imputed amount of interest on such Indebtedness,
determined in accordance with GAAP. 
Notwithstanding such treatment required by GAAP, for a period not to
exceed one hundred twenty (120) days following such Securitized Lease
Transaction, Borrower may exclude from the calculation of all financial
covenants set forth in this Article VII, the Indebtedness (up to an aggregate
maximum of 10% of Market Capitalization) and Interest Expense (to the extent
related to Indebtedness excluded pursuant to this sentence) associated with the
lease that is the subject of such transaction, provided that the revenue
recognized from such lease is also excluded from such calculations.  If at the end of such one hundred twenty
(120) day period Borrower continues to own the Equity Residual, then Borrower
must include the Indebtedness, Interest Expense and lease revenue in all of
Borrower’s covenant calculations in the manner required by GAAP.


 


ARTICLE VIII.



DEFAULTS


 


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


 


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


 


8.2           Nonpayment of (i) interest upon
any Note, any Facility Fee, Administrative Agent’s Fee or Facility Letter of
Credit Fee, under any of the Loan Documents within five (5) Business Days after
the same becomes due or (ii) any other payment Obligation under any of the Loan
Documents within five (5) Business Days of Borrower’s receipt of written
notice.


 


72

















 


8.3           The breach of any of the terms or
provisions of Sections 7.1(iii), (iv) and (v), 7.2(ii), 7.6(i) (to the extent
such breach relates to a cancellation of an insurance policy or Borrower’s
failure to pay the required premium to renew a policy), 7.6(ii), 7.10, 7.11,
7.12, 7.13, 7.14, 7.16, 7.18, 7.20, 7.21 or 7.25, or a breach of any of the
terms or provisions of Section 7.1 (other than as set forth above) which remains
uncured for ten (10) business days.


 


8.4           Any representation or warranty made
or deemed made by or on behalf of the Borrower or any of its Subsidiaries to
the Lenders or the Administrative Agent under or in connection with this
Agreement (other than Section 6.24 and a Property Breach unless such breach
causes a Default under another provision of this Article VIII), any Loan, or
any certificate or information delivered in connection with this Agreement or
any other Loan Document shall be materially false on the date as of which made.


 


8.5           The breach (other than a breach which
constitutes a Default under Section 8.1, 8.2, 8.3 or 8.4 and other than a
Property Breach) of any of the other terms or provisions of this Agreement
which is not remedied within thirty (30) days or ninety (90) days, for a breach
which is curable but cannot be cured within 30 days but is being diligently
cured, after the earlier to occur of the breach or receipt of written notice
from the Administrative Agent or any Lender.


 


8.6           Failure of the Borrower, any
Qualifying Investment Affiliate or Special Qualifying Investment Affiliate (to
the extent the Indebtedness is recourse to Borrower or any Subsidiary) or any
of its Subsidiaries to pay when due (after applicable cure periods) any Indebtedness
aggregating in excess of $5,000,000 for which liability is not limited to
specific pledged collateral, or $50,000,000 for which liability is limited to
specific pledged collateral.


 


8.7           The Borrower, any Qualifying
Investment Affiliate or Special Qualifying Investment Affiliate that is not a
Subsidiary having a Market Capitalization which is more than 3% of Market
Capitalization, or any Subsidiary having more than $10,000,000 of Market
Capitalization shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
Section 8.7, (vi) fail to contest in good faith any appointment or
proceeding described in Section 8.8 or (vii) not pay, or admit in
writing its inability to pay, its debts generally as they become due.


 


8.8           A receiver, trustee, examiner,
liquidator or similar official shall be appointed for the Borrower, any
Qualifying Investment Affiliate or Special Qualifying Investment Affiliate that
is not a Subsidiary having a Market Capitalization which is more than 3% of
Market Capitalization, or any Subsidiary having more than $10,000,000 of Market
Capitalization or any Substantial Portion of its Property, or a proceeding
described in Section 8.7(iv) shall be instituted against the Borrower any
Qualifying Investment Affiliate or Special Qualifying Investment 


 


73

















 


Affiliate
or any such Subsidiary and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of sixty (60)
consecutive days.


 


8.9           Any court, government or governmental
agency shall condemn, seize or otherwise appropriate, or take custody or
control of (each a “Condemnation”), all or any portion of the Properties of the
Borrower and its Subsidiaries, Qualifying Investment Affiliates and Special
Qualifying Investment Affiliates which, when taken together with all other
Property of the Borrower and its Subsidiaries, Qualifying Investment Affiliates
and Special Qualifying Investment Affiliates so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such Condemnation occurs, constitutes a
Substantial Portion of their Property.


 


8.10         The Borrower or any of its Subsidiaries
or any Qualifying Investment Affiliate or Special Qualifying Investment
Affiliate shall fail within sixty (60) days to pay, bond or otherwise discharge
any judgments or orders for the payment of money in an amount which, when added
to all other judgments or orders outstanding against the Borrower or any
Subsidiary or any Qualifying Investment Affiliate would exceed $10,000,000 in
the aggregate, which have not been stayed on appeal or otherwise appropriately
contested in good faith, unless the liability is insured against and the
insurer has not challenged coverage of such liability.


 


8.11         The Borrower or any other member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer
Plan, the PBGC or other party that it has incurred withdrawal liability or is
in default of payments to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal
liability (determined as of the date of such notification) or amounts in
default, exceeds $250,000 or requires payments exceeding $100,000 per annum.


 


8.12         The Borrower or any other member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer
Plan or the PBGC or other party that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result of such reorganization or termination the aggregate annual
contributions of the Borrower and the other members of the Controlled Group
(taken as a whole) to all Multiemployer Plans which are then in reorganization
or being terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the respective plan years of each such
Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $250,000 per year.


 


8.13         (i) 
A Reportable Event shall occur with respect to a Plan, or (ii) any
Plan shall incur an accumulated funding deficiency (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived, or fail to make a required installment payment on or before the due
date under Section 412 of the Code or Section 302 of ERISA, or
(iii) Borrower or a member of the Controlled Group shall have engaged in a
nonexempt prohibited transaction under Section 4975 of the Code or
Section 406 of ERISA, or (iv) Borrower or any member of the
Controlled Group shall fail to pay when due an amount which it shall have
become liable to pay to the PBGC, or any Plan, any Multiemployer Plan, or
(v) Borrower or any member of the Controlled Group shall have received a
notice from the PBGC of its intention to terminate a Plan or to appoint a
trustee to administer a Plan, or Multiemployer Plan, or a condition exists by 


 


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reason
of which the PBGC would be entitled to obtain a decree adjudicating that a Plan
must be terminated, or (vi) any other event or condition shall occur or
exist with respect to any employee benefit plan (as defined in
Section 3(3) of ERISA) or Plan or any Multiemployer Plan, which could reasonably
be expected to subject Borrower or any member of the Controlled Group to any
tax, penalty or other liability or the imposition of any lien or security
interest on Borrower or any member of the Controlled Group, provided, however,
that any event or circumstance in Sections 8.13(i) through (vi) shall
only be an Event of Default if it would result in liability to Borrower in
excess of $250,000 per year; or (vii) the assets of Borrower become or are
deemed to be assets of an employee benefit plan (as defined in
Section 3(3) of ERISA or a plan as defined in Section 4975 of the
Code).  No Default under this
Section 8.13 shall be deemed to have been or be waived or corrected
because of any disclosure by Borrower.


 


8.14         Failure to remediate within the time period
required by law or governmental order (or within a reasonable time in light of
the nature of the problem if no specific time period is so established)
environmental problems in violation of applicable law (i) related to
Properties of the Borrower and its Subsidiaries and the Qualifying Investment
Affiliates and Special Qualifying Investment Affiliates if the affected
Properties have an aggregate book value in excess of $10,000,000 or
(ii) where the estimated cost of remediation is in the aggregate in excess
of $500,000, in each case after all administrative hearings and appeals have
been concluded.


 


8.15         The occurrence of any default under any
Loan Document other than this Agreement or the breach of any of the terms or
provisions of any Loan Document other than this Agreement, which default or
breach continues beyond any period of grace therein provided.


 


ARTICLE IX.



ACCELERATION,
WAIVERS, AMENDMENTS AND REMEDIES


 


9.1           Acceleration.


 


If any Default described in Section 8.7 or 8.8 occurs
with respect to the Borrower or any Subsidiary or Qualifying Investment
Affiliate or Special Qualifying Investment Affiliate, the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Facility Letters of
Credit hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part
of the Administrative Agent or any Lender. 
If any other Default occurs and is continuing, the Required Lenders may
terminate or suspend the obligations of the Lenders to make Loans hereunder and
to issue Facility Letters of Credit, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become immediately due and
payable, upon written notice to the Borrower.


 


In addition to the foregoing, following the occurrence
and during the continuance of a Default and so long as any Facility Letter of
Credit has not been fully drawn and has not been cancelled or expired by its
terms, upon demand by the Administrative Agent or the Required Lenders, the
Borrower shall establish and deposit in the Letter of Credit Collateral Account
cash in an amount equal to the aggregate undrawn face amount of all outstanding
Facility Letters of Credit and all fees and other amounts due or which may become
due with respect thereto.  The Borrower
shall have no control over funds in the Letter of Credit Collateral Account,
which funds will be invested by the Administrative Agent from time to time at
its discretion in 


 


75

















 


certificates of deposit of Bank One, NA having a maturity not exceeding
30 days.  Such funds shall be promptly
applied by the Administrative Agent to reimburse any Issuing Bank for drafts
drawn from time to time under the Facility Letters of Credit.  Such funds, if any, remaining in the Letter
of Credit Collateral Account following the payment of all Obligations in full
shall, unless Administrative Agent is otherwise directed by a court of
competent jurisdiction, be promptly paid over to the Borrower.


 


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


 


9.2           Amendments,
Waivers, Decisions.


 


Subject to the provisions of this Article IX and the
right of the Borrower, solely with the agreement of the Administrative Agent
and such new banks or existing Lenders as may provide new or increased
Commitments, to increase the Aggregate Commitment as described in Section 2.24
above, the Required Lenders (or the Administrative Agent with the consent or
direction in writing of the Required Lenders) and the Borrower may enter into
agreements supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights of the
Lenders or the Borrower hereunder, or waiving any Default hereunder; provided,
however, that no such supplemental agreement shall, without the consent of all
Lenders:


 


(i)            Extend the Facility Termination
Date,  forgive all or any portion of the
principal amount of any Loan or accrued interest thereon or the Facility Fee or
the fee payable pursuant to Section 2.2 in connection with an extension of the
Facility Termination Date, reduce the Applicable Margins on the underlying
interest rate options or otherwise modify or add to such interest rate options,
or extend the time of payment of any of the Obligations.


 


(ii)           Reduce the percentage specified in
the definition of Required Lenders or 
change any provision that currently requires an approval from the
Required Lenders, all Lenders or the specific Lender affected, to approval by a
different standard.


 


(iii)          Increase the amount of the Aggregate
Commitment beyond $500,000,000.


 


(iv)          Permit the Borrower to assign its
rights under this Agreement.


 


(v)           Amend Section 2.2, 2.3, 3.8(a), 12.2,
or this Section 9.2.


 


(vi)          Release or limit the liability of
Borrower or any guarantor with respect to the Obligations.


 


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


 


9.3           Preservation
of Rights.


 


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


 


ARTICLE X.



GENERAL
PROVISIONS


 


10.1         Survival
of Representations.


 


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


 


10.2         Governmental
Regulation.


 


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


 


10.3         Taxes.


 


Any taxes (excluding federal, state and local income
or franchise or other similar taxes on the overall net income of any Lender) or
other similar assessments or charges made by any governmental or revenue
authority in respect of the Loan Documents shall be paid by the Borrower,
together with interest and penalties, if any.


 


10.4         Headings.


 


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


 


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10.5         Entire
Agreement.


 


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


 


10.6         Several
Obligations; Benefits of this Agreement.


 


The respective obligations of the Lenders hereunder
are several and not joint and no Lender shall be the partner or agent of any
other (except to the extent to which the Administrative Agent is authorized to
act as such).  The failure of any Lender
to perform any of its obligations hereunder shall not relieve any other Lender
from any of its obligations hereunder. 
This Agreement shall not be construed so as to confer any right or
benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns.


 


10.7         Expenses;
Indemnification.


 


The Borrower shall reimburse the Arranger and
Administrative Agent on demand for any costs, and reasonable out-of-pocket
expenses (including, without limitation, all reasonable fees for consultants
and reasonable fees and expenses for attorneys for the Arranger and
Administrative Agent (without duplication), which attorneys may be employees of
the Arranger or Administrative Agent) paid or incurred by the Arranger (whether
in their capacity as Arranger, or, in the case of Bank One, NA, in its capacity
as Administrative Agent) in connection with the preparation, negotiation,
execution, delivery, amendment or modification of the Loan Documents.  The Borrower also agrees to reimburse the
Arranger, Administrative Agent, and the Lenders for any costs, internal charges
and reasonable out-of-pocket expenses (including, without limitation, all
reasonable fees and expenses for attorneys for the Arranger, Administrative
Agent and the Lenders, which attorneys may be employees of the Arranger or the
Lenders) paid or incurred by the Arranger or Administrative Agent (whether in
their capacity as Arranger, or, in the case of Bank One, NA, in its capacity as
Administrative Agent) or any Lender in connection with the collection and
enforcement of the Loan Documents (including, without limitation, any
workout).  The Borrower further agrees
to indemnify the Administrative Agent, the Arranger and each Lender and their
directors, officers, employees and agents against all losses, claims, damages,
penalties, judgments, liabilities and reasonable expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
such entity is a party thereto) which any of them may pay or incur arising out
of or relating to this Agreement, the other Loan Documents, the Properties, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder, other than
liability arising from the gross negligence or wilful misconduct of the party
being indemnified.  The obligations of
the Borrower under this Section 10.7 shall survive for two years after the
termination of this Agreement.


 


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10.8         Numbers
of Documents.


 


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


 


10.9         Accounting.


 


Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP, except that any
calculation or determination which is to be made on a consolidated basis shall
be made for the Borrower and all its Subsidiaries.


 


10.10       Severability
of Provisions.


 


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


 


10.11       Nonliability
of Lenders, Arranger, Administrative Agent, Documentation Agent,
Managing Agent and Syndication Agent.


 


The relationship between the Borrower, on the one
hand, and the Lenders, the Arranger, the Administrative Agent, the Syndication
Agent, the Documentation Agent, and the Managing Agents on the other, shall be
solely that of borrower and lender. 
Neither the Administrative Agent, the Syndication Agent, the
Documentation Agent, the Arranger, the Managing Agents nor any Lender shall
have any fiduciary responsibilities to the Borrower.  Neither the Administrative Agent, the Syndication Agent, the
Documentation Agent, the Arranger, the Managing Agents nor any Lender
undertakes any responsibility to the Borrower to review or inform the Borrower
of any matter in connection with any phase of the Borrower’s business or
operations.  None of the Arranger, the
Syndication Agent, the Documentation Agent, or the Managing Agents shall have
any responsibilities to the Borrower or Lenders under this Agreement except to
the extent, if any, expressly set forth herein.


 


10.12       Publicity.


 


Each Lender and each Arranger shall have the right to
do a tombstone publicizing the transaction contemplated hereby upon the consent
of the Borrower which shall not be unreasonably withheld.


 


10.13       Brokers.


 


Borrower and Administrative Agent each hereby
represent and warrant that no brokers or finders were used in connection with
procuring the financing contemplated hereby and Borrower hereby agrees to
indemnify and save the Administrative Agent, and each Lender harmless from and
against any and all liabilities, losses, costs and expenses (including
attorneys’ fees or court costs) suffered or incurred by the Administrative
Agent, or any Lender as a result of any claim or assertion by any party claiming
by, through or under Borrower, its Subsidiaries or any Investment Affiliate
that it is entitled to compensation in connection with the financing


 


79

















 


contemplated hereby. 
Administrative Agent hereby agrees to indemnify and save Borrower
harmless from and against any and all liabilities, losses, costs and expenses
(including attorneys’ fees or court costs) suffered or incurred by Borrower as
a result of any claim or assertion by any party claiming by, through or under
Administrative Agent that it is entitled to compensation in connection with the
financing contemplated hereby.


 


10.14       Confidentiality.


 


Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement
in confidence, except for disclosure (i) to its Affiliates and to other Lenders
and their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory officials,
(iv) to any Person as requested pursuant to or as required by law, regulation,
or legal process, (v) to any Person in connection with any legal proceeding to
which such Lender is a party, (vi) to such Lender’s direct or indirect
contractual counterparties in swap agreements or to legal counsel, accountants
and other professional advisors to such counterparties, (vii) permitted by
Section 13.5 and (viii) to rating agencies if requested or required by such
agencies in connection with a rating relating to the Advances hereunder.  Notwithstanding anything herein to the
contrary, confidential information shall not include, and each Lender (and each
employee, representative or other agent of any Lender) may disclose to any and
all Persons, without limitation of any kind, the “tax treatment” and “tax
structure” (in each case, within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are or have been provided to
such Lender relating to such tax treatment or tax structure other than
information or materials for which nondisclosure is reasonably necessary in
order to comply with applicable securities laws so long as disclosure is not
otherwise limited; provided that with respect to any document
or similar item that in either case contains information concerning such tax
treatment or tax structure of the transactions contemplated hereby as well as
other information, this sentence shall only apply to such portions of the
document or similar item that relate to such tax treatment or tax structure.


 


10.15       CHOICE OF LAW.


 


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


 


10.16       CONSENT
TO JURISDICTION.


 


THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT
SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
ANY OF THE LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM AND THE 


 


80

















 


LENDERS HEREBY CONSENT TO SAID JURISDICTION FOR SUCH PROCEEDINGS
BROUGHT AGAINST THEM BY BORROWER. 
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY
LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION.  ANY JUDICIAL PROCEEDING
BY THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE
OF THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.


 


10.17       WAIVER OF
JURY TRIAL.


 


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


 


ARTICLE XI.



THE
ADMINISTRATIVE AGENT


 


11.1         Appointment; Nature of Relationship.


 


Bank One, NA is hereby appointed by each of the
Lenders as its contractual representative (herein referred to as the
“Administrative Agent”) hereunder and under each other Loan Document, and each
of the Lenders irrevocably authorizes the Administrative Agent to act as the
contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents.  The Administrative Agent agrees to act as such contractual
representative upon the express conditions contained in this Article XI.  Notwithstanding the use of the defined term
“Administrative Agent,” it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any
Lender by reason of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the contractual representative of the
Lenders with only those duties as are expressly set forth in this Agreement and
the other Loan Documents.  In its capacity
as the Lenders’ contractual representative, the Administrative Agent (i) does
not hereby assume any fiduciary duties to any of the Lenders, (ii) is a
“representative” of the Lenders within the meaning of the term “secured party”
as defined in the Illinois Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents.  Each of the Lenders hereby agrees to assert
no claim against the Administrative Agent on any agency theory or any other
theory of liability for breach of fiduciary duty, all of which claims each
Lender hereby waives.


 


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11.2         Powers.


 


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


 


11.3         General
Immunity.


 


Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen
from the gross negligence or willful misconduct of such Person and except for
liability of Administrative Agent for breach of an express agreement made by
the Administrative Agent herein to take or not take actions based on the
approval or direction of a requisite number of Lenders.


 


11.4         No
Responsibility for Loans, Recitals, etc; Delivery of Information.


 


Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into, or verify (a) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article V, except
receipt of items required to be delivered solely to the Administrative Agent;
(d) the existence or possible existence of any Default or Unmatured Default;
(e) the validity, enforceability, effectiveness, sufficiency or genuineness of
any Loan Document or any other instrument or writing furnished in connection
therewith; (f) the value, sufficiency, creation, perfection or priority of any
Lien in any collateral security; or (g) the financial condition of the Borrower
or any guarantor of any of the Obligations or of any of the Borrower’s or any
such guarantor’s respective Subsidiaries. 
The Administrative Agent shall promptly distribute to Lenders copies of
material notices and information furnished to Administrative Agent in
accordance with the terms of this Agreement, which may be distributed by
posting on Intralinks or other customary distribution methods.  The Administrative Agent shall have no duty
to disclose to the Lenders information that is not required to be furnished by
the Borrower to the Administrative Agent at such time, but is voluntarily
furnished by the Borrower to the Administrative Agent (either in its capacity
as Administrative Agent or in its individual capacity).


 


11.5         Action
on Instructions of Lenders.


 


The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders, unless such action or inaction requires the consent of all
the Lenders or an individual Lender not included in the direction of the
Required Lenders pursuant to this Agreement, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders and on all holders of Notes. 
The Lenders hereby 


 


82

















 


acknowledge that the Administrative Agent shall be under no duty to
take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement or any other Loan Document unless it shall be
requested in writing to do so by the Required Lenders.  The Administrative Agent shall be fully
justified in failing or refusing to take any action hereunder and under any other
Loan Document unless it shall first be indemnified to its satisfaction by the
Lenders pro rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.


 


11.6         Employment of Administrative Agents
and Counsel.


 


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


 


11.7         Reliance
on Documents; Counsel.


 


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


 


11.8         Administrative Agent’s Reimbursement and
Indemnification.


 


The Lenders agree to reimburse and indemnify the
Administrative Agent in its capacity as Administrative Agent but not as Lender
ratably in proportion to their respective Commitments (or, if the Commitments
have been terminated, in proportion to their Commitments immediately prior to
such termination) (i) for any amounts not reimbursed by the Borrower for which
the Administrative Agent is entitled to reimbursement by the Borrower under the
Loan Documents including reasonable out of pocket expenses in connection with
the preparation, execution, delivery of the Loan Documents, (ii) for any other
expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including, without limitation, for any expenses
incurred by the Administrative Agent in connection with any dispute between the
Administrative Agent and any Lender or between two or more of the Lenders) and
(iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Administrative Agent in connection
with any dispute between the Administrative Agent and any Lender or between two
or more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, provided that (i) no Lender shall be
liable for any of the foregoing to the extent any of the


 


83

















 


foregoing is found in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Administrative Agent and (ii) any indemnification required
pursuant to Section 4.5(vii) shall, notwithstanding the provisions of this
Section 11.8, be paid by the relevant Lender in accordance with the provisions
thereof.  The obligations of the Lenders
under this Section 11.8 shall survive payment of the Obligations and
termination of this Agreement.


 


11.9         Notice of
Default.


 


The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Administrative Agent has received written notice from a
Lender or the Borrower referring to this Agreement describing such Default or
Unmatured Default and stating that such notice is a “notice of default” or
unless the default is a failure by Borrower to pay principal, interest or fees
due in accordance with this Agreement. 
In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.


 


11.10       Rights as a
Lender.


 


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


 


11.11       Lender
Credit Decision.


 


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


 


11.12       Successor
Administrative Agent.


 


The Administrative Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower, such resignation
to be effective upon the appointment of a successor Administrative Agent or, if
no successor Administrative Agent has been appointed, forty-five days after the
retiring Administrative Agent gives notice of its intention to resign.  The Administrative Agent may be removed at
any time with cause by written notice received by the 


 


84

















 


Administrative Agent from the Required Lenders, such removal to be
effective on the date specified by the Required Lenders (provided that for this
purpose only, Required Lenders shall mean Lenders having 66-2/3% of the
Aggregate Commitment exclusive of the Commitment of the Administrative
Agent).  Upon any such resignation or
removal, the Required Lenders shall have the right to appoint, on behalf of the
Borrower and the Lenders, a successor Administrative Agent, which successor
Administrative Agent shall, unless a Default shall have occurred and be
continuing, be acceptable to Borrower (such consent not to be unreasonably
withheld or delayed).  If no successor
Administrative Agent shall have been so appointed by the Required Lenders
within thirty days after the resigning Administrative Agent’s giving notice of
its intention to resign, then the resigning Administrative Agent may appoint,
on behalf of the Borrower and the Lenders, a successor Administrative Agent,
which successor Administrative Agent shall, unless a Default shall have
occurred and be continuing, be acceptable to Borrower (such consent not to be
unreasonably withheld or delayed). 
Notwithstanding the previous sentence, the Administrative Agent may at
any time without the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a commercial bank having capital and retained earnings of
at least $500,000,000 that is generally in the business of making loans
comparable to the Loans made under this Facility as a successor Administrative
Agent hereunder.  If the Administrative
Agent has resigned or been removed and no successor Administrative Agent has
been appointed (and approved by Borrower if required), the Lenders may perform
all the duties of the Administrative Agent hereunder and the Borrower shall
make all payments in respect of the Obligations to the applicable Lender and
for all other purposes shall deal directly with the Lenders.  No successor Administrative Agent shall be
deemed to be appointed hereunder until such successor Administrative Agent has
accepted the appointment.  Any such
successor Administrative Agent shall be either a Lender or a commercial bank
(or a subsidiary thereof) having capital and retained earnings of at least
$500,000,000 that is generally in the business of making loans comparable to
the Loans made under this Facility, except that if the successor Administrative
Agent is a subsidiary of a bank, such capital and retained earnings requirement
shall apply only to the parent bank. 
Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the resigning or removed Administrative Agent.  Upon the effectiveness of the resignation or
removal of the Administrative Agent, the resigning or removed Administrative
Agent and the successor Administrative Agent shall pro rate any agency fees,
and the resigning or removed Administrative Agent shall be discharged from its
duties and obligations hereunder and under the Loan Documents.  After the effectiveness of the resignation
or removal of an Administrative Agent, the provisions of this Article XI shall
continue in effect for the benefit of such Administrative Agent in respect of
any actions taken or omitted to be taken by it while it was acting as the
Administrative Agent hereunder and under the other Loan Documents.  In the event that there is a successor
Administrative Agent, then the term “Prime Rate” as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Administrative Agent.


 


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


 


85

















 


11.14       Notice of
Defaults.


 


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


 


11.15       Requests
for Approval.


 


If the Administrative Agent requests in writing the
consent or approval of a Lender, such Lender shall respond and either approve
or disapprove definitively in writing to the Administrative Agent within ten
Business Days (or sooner if such notice specifies a shorter period, but in no
event less than five Business Days for responses based on Administrative
Agent’s good faith determination that circumstances exist warranting its
request for an earlier response) after such written request from the
Administrative Agent.  If the Lender
does not so respond, that Lender shall be deemed to have approved the request.  Upon request, the Administrative Agent shall
notify the Lenders which Lenders, if any, failed to respond to a request for
approval.


 


11.16       Copies of
Documents.


 


Administrative Agent shall promptly deliver to each of
the Lenders copies of all notices of default and other formal notices sent or received
according to Section 14.1 of this agreement. 
Administrative Agent shall deliver to Lenders within 15 Business Days
following receipt, copies of all financial statements, certificates and notices
received regarding the Borrower’s unsecured debt rating except to the extent
such items are required to be furnished directly to the Lenders by Borrower
hereunder.  Within fifteen Business Days
after a request by a Lender to the Administrative Agent for other documents
furnished to the Administrative Agent by the Borrower, the Administrative Agent
shall provide copies of such documents to such Lender except where this
Agreement obligates Administrative Agent to provide copies in a shorter period
of time.


 


11.17       Defaulting
Lenders.


 


At such time as a Lender becomes a Defaulting Lender,
such Defaulting Lender’s right to vote on matters which are subject to the
consent or approval of the Required Lenders, each affected Lender or all
Lenders shall be immediately suspended until such time as the Lender is no longer
a Defaulting Lender.  If a Defaulting
Lender has failed to fund its Percentage of any Advance and until such time as
such Defaulting Lender subsequently funds its Percentage of such Advance, all
Obligations owing to such Defaulting Lender hereunder shall be subordinated in
right of payment, as provided in the following sentence, to the prior payment
in full of all principal of, interest on and fees relating to the Loans funded
by the other Lenders in connection with any such Advance in which the Defaulting
Lender has not funded its Percentage (such principal, interest and fees being
referred to as “Senior Loans” for the purposes of this section).  All amounts paid by the Borrower and
otherwise due to be applied to the Obligations owing to such Defaulting Lender
pursuant to the terms hereof shall be distributed by the Administrative Agent
to the other Lenders in accordance with their respective Percentages
(recalculated for the purposes hereof to exclude the Defaulting Lender) until
all Senior Loans have been paid in full. 
At that point, the “Defaulting Lender” shall no longer be deemed a
Defaulting Lender.  After the Senior
Loans have been paid in full equitable adjustments will be made in connection
with future 


 


86

















 


payments by the Borrower to the extent a portion of the Senior Loans
had been repaid with amounts that otherwise would have been distributed to a
Defaulting Lender but for the operation of this Section 11.17.  This provision governs only the relationship
among the Administrative Agent, each Defaulting Lender and the other Lenders;
nothing hereunder shall limit the obligation of the Borrower to repay all Loans
in accordance with the terms of this Agreement.  The provisions of this section shall apply and be effective
regardless of whether a Default occurs and is continuing, and notwithstanding
(i) any other provision of this Agreement to the contrary, (ii) any instruction
of the Borrower as to its desired application of payments or (iii) the suspension
of such Defaulting Lender’s right to vote on matters which are subject to the
consent or approval of the Required Lenders or all Lenders.


 


ARTICLE XII.



RATABLE
PAYMENTS


 


12.1         Intentionally Deleted.


 


12.2         Ratable
Payments.


 


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


 


ARTICLE XIII.



BENEFIT
OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS


 


13.1         Successors
and Assigns.


 


The terms and provisions of the Loan Documents shall
be binding upon and inure to the benefit of the Borrower and the Lenders and
their successors and permitted assigns, except that (i) the Borrower shall not
have the right to assign its rights or obligations under the Loan Documents and
(ii) any assignment by any Lender must be made in compliance with Section
13.3.  Notwithstanding clause (ii) of
this Section 13.1, any Lender may at any time, without the consent of the
Borrower assign all or any portion of its rights under this Agreement and its
Notes to a Federal Reserve Bank; provided, however, that no such assignment
shall release the transferor Lender from its obligations hereunder.  The Administrative Agent may treat the payee
of any Note as the owner thereof for all purposes hereof unless and until such
payee complies with Section 13.3 in the case of an assignment thereof or, in
the case of any other transfer, a 


 


87

















 


written notice of the transfer is filed with the Administrative
Agent.  Any assignee or transferee of a
Note agrees by acceptance thereof to be bound by all the terms and provisions
of the Loan Documents.  Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the holder of any Note, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Note or of
any Note or Notes issued in exchange therefor.


 


13.2         Participations.


 


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


 


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


 


13.3         Assignments.


 


13.3.1.  Permitted
Assignments.  Subject to any
other applicable requirements set forth in this Section 13.3, any Lender, in
the ordinary course of its business and in accordance with applicable law, at
any time, may assign all or any  portion
(greater than or equal to $5,000,000 per assignee) of its rights and
obligations under the Loan Documents. 
Notwithstanding the foregoing provision, any assignment by a Lender to
another Lender in the Facility or an Affiliate thereof or an Affiliate of the
assigning Lender shall not be subject to either the $5,000,000 minimum
assignment amount or the requirement set forth below regarding Borrower’s
consent or the fee in Section 13.3.2(ii). 
Any Person to whom such rights and obligations are assigned is a
“Purchaser.”  Such assignment shall be
substantially in the form of Exhibit F hereto or in such other form as may be
agreed to by the parties thereto (the “Assignment”).  So long as no Default has occurred and is continuing, Borrower’s
consent shall be required for any assignment provided that if such assignment
is to an entity that is a “Qualified Lender,” such consent shall not be
unreasonably denied or delayed. 
“Qualified Lender” shall mean an institution with assets over
$5,000,000,000.00 that is generally in the business of making loans comparable
to the Loans made under this Facility and that maintains an office in the
United States.  Administrative 


 


88

















 


Agent may make an assignment reducing its Commitment below $25,000,000
only if it first resigns its status as Administrative Agent or it obtains the
consent of Borrower or a Default has occurred.   The consent of the Administrative Agent, which shall not be
unreasonably withheld, shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or an Affiliate
thereof.  Notwithstanding any other
provision set forth in this Agreement, any Lender may at any time create a security
interest in all or any portion of its rights under this Agreement (including,
without limitation, amounts owing to it in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System), provided that no such security interest or the exercise by the secured
party of any of its rights thereunder shall release Lender from its funding
obligations hereunder and such Lender shall retain all voting rights.


 


13.3.2.  Effect;
Effective Date.  Upon (i)
delivery to the Administrative Agent and the Borrower of a notice of
assignment, substantially in the form attached as Exhibit “I” to Exhibit F
hereto (a “Notice of Assignment”), together with any consents required by
Section 13.3.1, and (ii) payment of a $3,500 fee to the Administrative
Agent for processing such assignment, such assignment shall become effective on
the effective date specified in such Notice of Assignment.  The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and Loans under the applicable
assignment agreement are “plan assets” as defined under ERISA and that the
rights and interests of the Purchaser in and under the Loan Documents will not
be “plan assets” under ERISA.  On and
after the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan Document
executed by the Lenders and shall have all the rights and obligations of a
Lender under the Loan Documents, to the same extent as if it were an original
party hereto, and no further consent or action by the Borrower, the Lenders or
the Administrative Agent shall be required to release the transferor Lender
with respect to the percentage of the Aggregate Commitment and Loans assigned
to such Purchaser.  Upon the
consummation of any assignment to a Purchaser pursuant to this Section 13.3.2,
the transferor Lender, the Administrative Agent and the Borrower shall make appropriate
arrangements so that replacement Notes are issued to such transferor Lender, if
applicable, and new Notes or, as appropriate, replacement Notes, are issued to
such Purchaser, in each case in principal amounts reflecting their Commitment,
as adjusted pursuant to such assignment.


 


13.4         Designation
of Lender to Make Competitive Bid Loans.


 


Any Lender (each a “Designating Lender”) may at any
time designate one or more Designated Lenders to fund Competitive Bid Loans
which the Designating Lender is required to fund subject to the terms of this
Section 13.4 and the provisions in Section 13.3 shall not apply to
such designation.  No Lender shall be
entitled to make more than two such designations.  The parties to each such designation shall execute and deliver to
the Administrative Agent, for its acceptance, a Designation Agreement in the
form of Exhibit I.  Upon its
receipt of an appropriately completed Designation Agreement executed by a
Designating Lender and a designee representing that it is a Designated Lender,
the Administrative Agent will accept such Designation Agreement and give prompt
notice thereof to the Borrower, whereupon, from and after the effective date
specified in the Designation Agreement, the Designated Lender shall become a
party to this Agreement with a right to make Competitive Bid Loans on behalf of
its Designating Lender pursuant to Section 2.14 after the Borrower has
accepted a Competitive Bid (or a portion thereof) of the Designating
Lender.  Each Designating Lender shall
serve as the 


 


89

















 


agent for the Designated Lender and shall on behalf of the Designated
Lender give and receive all communications and notices and take all actions
hereunder, including without limitation votes, approvals, waivers, consents and
amendments under or relating to this Agreement or the other Loan
Documents.  Any such notice,
communications, vote approval, waiver, consent or amendment shall be signed by
the Designating Lender as agent for the Designated Lender and shall not be
signed by the Designated Lender.  The
Borrower, the Administrative Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same, and
without any specific designation that the Designating Lender is signing in an
agency capacity.  This Section 13.4
shall survive the termination of this Agreement.


 


13.5         Dissemination
of Information.


 


The Borrower authorizes each Lender to disclose to any
Participant or Purchaser or any other Person acquiring an interest in the Loan
Documents by operation of law (each a “Transferee”) and any prospective
Transferee any and all information in such Lender’s possession concerning the
creditworthiness of the Borrower and its Subsidiaries, provided that such
Transferees agree to maintain the confidentiality of any information that is
confidential in the manner set forth in Section 10.14.


 


13.6         Tax
Treatment.


 


If any interest in any Loan Document is transferred to
any Transferee which is organized under the laws of any jurisdiction other than
the United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 4.5.


 


13.7         Possession of Loan Documents and
Register.


 


The Administrative Agent shall keep and maintain
complete and accurate files and records of all matters pertaining to the
Loan.  Upon reasonable prior notice to
the Administrative Agent by any Lender, the Administrative Agent will make
available to such Lender and their representatives and agents, the files and
records relating to the Facility for inspection and copying during normal
business hours.  The Administrative
Agent shall also maintain at its address specified pursuant to Article XIV, a
copy of each Assignment delivered to and accepted by it and a listing of the
names and addresses of the Lenders, the amount of each Lender’s Commitment and
Percentage (the “Register”).  The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and Borrower, Administrative Agent, and the Lenders may
treat each person or entity whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. 
The Register shall be available for inspection and copying by Borrower
or any Lender during normal business hours upon reasonable prior notice to the
Administrative Agent.


 


90

















 


ARTICLE XIV.



NOTICES


 


14.1         Giving
Notice.


 


Except as otherwise permitted by Section 2.17 with
respect to borrowing notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as
may be designated by such party in a notice to the other parties.  Any notice, if mailed and properly addressed
with postage prepaid, shall be deemed given when received; any notice, if
transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes).


 


14.2         Change of
Address.


 


The Borrower, the Administrative Agent and any Lender
may each change the address for service of notice upon it by a notice in writing
to the other parties hereto.


 


14.3         Accounts.


 


The Administrative Agent shall deliver to each Lender
and Borrower, and each Lender shall deliver to Administrative Agent wiring
instructions containing account information for purposes of the payment of sums
due under this Agreement.


 


ARTICLE XV.


 


COUNTERPARTS


 


This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart.  This Agreement shall be
effective when it has been executed by the Borrower, the Administrative Agent
and the Lenders and each party has notified the Administrative Agent by telex
or telephone, that it has taken such action.


 


91

















 


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


 


	
   

  	
   

  	
  CENTERPOINT PROPERTIES
  TRUST, a

  Maryland real estate investment trust

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Paul S. Fisher

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
  Paul S. Fisher

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice
  President

  
	
   

  	
   

  	
   

  	
  and Chief Financial
  Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Daniel J. Hemmer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
  Daniel J. Hemmer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President and

  
	
   

  	
   

  	
   

  	
  Associate General
  Counsel

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1808 Swift Road

  
	
   

  	
   

  	
  Oakbrook, IL  60532-1501

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Paul S. Fisher

  
	
   

  	
   

  	
  Telephone:

  	
  (630) 586-8000

  
	
   

  	
   

  	
  Facsimile:

  	
  (630) 586-8010

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Kirkland & Ellis

  
	
   

  	
   

  	
  200 East Randolph Drive

  
	
   

  	
   

  	
  Chicago, IL  60601

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Stephen G. Tomlinson

  
	
   

  	
   

  	
  Telephone:

  	
  (312) 861-2386

  
	
   

  	
   

  	
  Facsimile:

  	
  (312) 861-2200

  
						



 


S-1

















 


	
   

  	
   

  	
  BANK ONE, NA,

  
	
   

  	
   

  	
  Individually and as
  Administrative Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Scott Sigmund

  
	
   

  	
   

  	
  Print Name:

  	
  Scott Sigmund

  
	
   

  	
   

  	
  Title:

  	
  Associate

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1 Bank One Plaza

  
	
   

  	
   

  	
  IL1-0315

  
	
   

  	
   

  	
  Chicago, Illinois 60670

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Scott Sigmund

  
	
   

  	
   

  	
   

  	
  Suite 0315, 14th Floor

  
	
   

  	
   

  	
  Telephone:

  	
  312-732-4619

  
	
   

  	
   

  	
  Facsimile:

  	
  312-732-5939

  
					



 


S-2

















 


	
   

  	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
   

  	
  Individually and as
  Syndication Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Matthew Sadler

  
	
   

  	
   

  	
  Print Name:

  	
  Matthew Sadler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  231 South LaSalle
  Street

  
	
   

  	
   

  	
  Chicago, Illinois  60697

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Matthew Sadler

  
	
   

  	
   

  	
  Telephone:

  	
  312-828-7107

  
	
   

  	
   

  	
  Facsimile:

  	
  312-974-4970

  
					



 


S-3

















 


	
   

  	
   

  	
  WACHOVIA BANK, NATIONAL
  ASSOCIATION

  
	
   

  	
   

  	
  Individually and as
  Syndication Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Rex Rudy

  
	
   

  	
   

  	
  Print Name:

  	
  Rex Rudy

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  301 South College
  Street

  
	
   

  	
   

  	
  Charlotte, North
  Carolina  28288

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Rex Rudy

  
	
   

  	
   

  	
  Telephone:

  	
  704-383-6506

  
	
   

  	
   

  	
  Facsimile:

  	
  704-383-6205

  
					



 


S-4

















 


	
   

  	
   

  	
  COMMERZBANK AG, NEW YORK
  BRANCH

  
	
   

  	
   

  	
  Individually and as
  Documentation Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ E. Marcus Perry

  
	
   

  	
   

  	
  Print Name:

  	
  E. Marcus Perry

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ David Buettner

  
	
   

  	
   

  	
  Print Name:

  	
  David Buettner

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2 World Financial
  Center

  
	
   

  	
   

  	
  New York, NY  10281-1050

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  E. Marcus Perry

  
	
   

  	
   

  	
  Telephone:

  	
  212-266-7646

  
	
   

  	
   

  	
  Facsimile:

  	
  212-266-7565

  
					



 


S-5

















 


	
   

  	
   

  	
  SUNTRUST BANK

  
	
   

  	
   

  	
  Individually and as
  Managing Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Nancy B. Richards

  
	
   

  	
   

  	
  Print Name:

  	
  Nancy B. Richards

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Real Estate Finance
  Group

  
	
   

  	
   

  	
  8245 Boone Boulevard

  
	
   

  	
   

  	
  Suite 820

  
	
   

  	
   

  	
  Vienna, Virginia  22182

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Nancy B. Richards

  
	
   

  	
   

  	
  Telephone:

  	
  703-902-9039

  
	
   

  	
   

  	
  Facsimile:

  	
  703-902-9245

  
					



 


S-6

















 


	
   

  	
   

  	
  AMSOUTH BANK

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Alan C. Brown

  
	
   

  	
   

  	
  Print Name:

  	
  Alan C. Brown

  
	
   

  	
   

  	
  Title:

  	
  SeniorVice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1900 5th
  Avenue North

  
	
   

  	
   

  	
  AmSouth Center, 9th
  Floor

  
	
   

  	
   

  	
  Birmingham,
  Alabama  35203

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Alan C. Brown

  
	
   

  	
   

  	
  Telephone:

  	
  205-581-7267

  
	
   

  	
   

  	
  Facsimile:

  	
  205-326-4075

  
					



 


S-7

















 


	
   

  	
   

  	
  LASALLE BANK, NATIONAL
  ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jay Palmer

  
	
   

  	
   

  	
  Print Name:

  	
  Jay Palmer

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  135 South LaSalle
  Street

  
	
   

  	
   

  	
  Suite 1225

  
	
   

  	
   

  	
  Chicago, Illinois  60603

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Jay Palmer

  
	
   

  	
   

  	
  Telephone:

  	
  312-904-7211

  
	
   

  	
   

  	
  Facsimile:

  	
  312-904-6691

  
					



 


S-8

















 


	
   

  	
   

  	
  PNC BANK, NATIONAL
  ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Michael E. Smith

  
	
   

  	
   

  	
  Print Name:

  	
  Michael E. Smith

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  One PNC Plaza

  
	
   

  	
   

  	
  246 Fifth Avenue

  
	
   

  	
   

  	
  P1 POPP 19 2

  
	
   

  	
   

  	
  Pittsburgh,
  Pennsylvania  15222-2707

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Michael E. Smith

  
	
   

  	
   

  	
  Telephone:

  	
  412-768-9135

  
	
   

  	
   

  	
  Facsimile:

  	
  412-762-6500

  
					



 


S-9

















 


	
   

  	
   

  	
  SOUTHTRUST BANK

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Ronnie Brantley

  
	
   

  	
   

  	
  Print Name:

  	
  Ronnie Brantley

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institutional Real
  Estate Group

  
	
   

  	
   

  	
  420 North 20th
  Street

  
	
   

  	
   

  	
  Birmingham,
  Alabama  35203

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Ronnie Brantley

  
	
   

  	
   

  	
  Telephone:

  	
  205-254-4438

  
	
   

  	
   

  	
  Facsimile:

  	
  205-254-8270

  
					



 


S-10

















 


	
   

  	
   

  	
  COMERICA BANK

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Jessica Kempf

  
	
   

  	
   

  	
  Print Name:

  	
  Jessica Kempf

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  One Detroit Center

  
	
   

  	
   

  	
  500 Woodward Avenue

  
	
   

  	
   

  	
  7th Floor,
  M/C 3256

  
	
   

  	
   

  	
  Detroit, Michigan  48226

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Jessica Kempf

  
	
   

  	
   

  	
  Telephone:

  	
  313-222-6140

  
	
   

  	
   

  	
  Facsimile:

  	
  313-222-9295

  
					



 


S-11

















 


	
   

  	
   

  	
  THE NORTHERN TRUST
  COMPANY

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Kurt H. Prusener

  
	
   

  	
   

  	
  Print Name: 

  	
  Kurt H. Prusener

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  50 South LaSalle Street

  
	
   

  	
   

  	
  Chicago, Illinois  60675

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Kurt H. Prusener

  
	
   

  	
   

  	
  Telephone:

  	
  312-630-8944

  
	
   

  	
   

  	
  Facsimile:

  	
  312-444-7028

  
					



 


S-12