EXHIBIT 10.1



 






 

 











CREDIT AGREEMENT


Dated as of November 1, 2005


among


COGDELL SPENCER LP,

as Borrower,


COGDELL SPENCER INC.,

as a Guarantor,


BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender


and


L/C Issuer,


CITICORP NORTH AMERICA, INC.,

as Syndication Agent,


BRANCH BANKING & TRUST COMPANY,

as Managing Agent


and


The Other Lenders Party Hereto


BANC OF AMERICA SECURITIES LLC and

CITIGROUP GLOBAL MARKETS INC., as

Joint Lead Arrangers and Joint Book Managers



 

 










 









 
















TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	25	 
	1.03 Accounting Terms
	 	 	26	 
	1.04 Rounding
	 	 	27	 
	1.05 Times of Day
	 	 	27	 
	1.06 Letter of Credit Amounts
	 	 	27	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	27	 
	2.01 Committed Loans
	 	 	27	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	27	 
	2.03 Letters of Credit
	 	 	29	 
	2.04 Swing Line Loans
	 	 	36	 
	2.05 Prepayments
	 	 	39	 
	2.06 Termination or Reduction of Commitments
	 	 	40	 
	2.07 Repayment of Loans
	 	 	40	 
	2.08 Interest
	 	 	40	 
	2.09 Fees
	 	 	41	 
	2.10 Computation of Interest and Fees
	 	 	41	 
	2.11 Evidence of Debt
	 	 	42	 
	2.12 Payments Generally; Agent’s Clawback
	 	 	42	 
	2.13 Sharing of Payments
	 	 	44	 
	2.14 Increase in Commitments
	 	 	45	 
	2.15 Extension of Maturity Date
	 	 	46	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	47	 
	3.01 Taxes
	 	 	47	 
	3.02 Illegality
	 	 	49	 
	3.03 Inability to Determine Rates
	 	 	49	 
	3.04 Increased Costs
	 	 	49	 
	3.05 Compensation for Losses
	 	 	51	 
	3.06 Mitigation Obligations; Replacement Lenders
	 	 	51	 






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	Section	 	Page	 
	3.07 Survival
	 	 	51	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	52	 
	4.01 Conditions of Initial Credit Extension
	 	 	52	 
	4.02 Conditions to all Credit Extensions
	 	 	53	 
	ARTICLE V. CSI GUARANTY
	 	 	54	 
	5.01 CSI Guaranty
	 	 	54	 
	5.02 Payment
	 	 	54	 
	5.03 Guaranty Absolute
	 	 	54	 
	5.04 Reinstatement
	 	 	56	 
	5.05 Waiver; Subrogation
	 	 	56	 
	5.06 Set-Off and Waiver
	 	 	57	 
	ARTICLE VI. REPRESENTATIONS AND WARRANTIES
	 	 	57	 
	6.01 Existence, Qualification and Power; Compliance with Laws
	 	 	58	 
	6.02 Authorization; No Contravention
	 	 	58	 
	6.03 Governmental Authorization; Other Consents
	 	 	58	 
	6.04 Binding Effect
	 	 	58	 
	6.05 Financial Statements; No Material Adverse Effect; No Internal Control Event
	 	 	58	 
	6.06 Litigation
	 	 	59	 
	6.07 No Default
	 	 	59	 
	6.08 Ownership of Property; Liens
	 	 	59	 
	6.09 Environmental Compliance
	 	 	60	 
	6.10 Insurance
	 	 	60	 
	6.11 Taxes
	 	 	60	 
	6.12 ERISA Compliance
	 	 	60	 
	6.13 Subsidiaries
	 	 	61	 
	6.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act
	 	 	61	 
	6.15 Disclosure
	 	 	61	 
	6.16 Compliance with Laws
	 	 	61	 
	6.17
Intellectual Property; Licenses, Etc.
	 	 	61	 
	6.18 REIT Qualification
	 	 	62	 
	6.19 Solvency
	 	 	62	 






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	Section	 	Page	 
	ARTICLE VII. AFFIRMATIVE COVENANTS
	 	 	62	 
	7.01 Financial Statements
	 	 	62	 
	7.02 Certificates; Other Information
	 	 	63	 
	7.03 Notices
	 	 	65	 
	7.04 Payment of Obligations
	 	 	65	 
	7.05
Preservation of Existence, Etc.
	 	 	65	 
	7.06 Maintenance of Properties
	 	 	66	 
	7.07 Maintenance of Insurance
	 	 	66	 
	7.08 Compliance with Laws
	 	 	66	 
	7.09 Books and Records
	 	 	66	 
	7.10 Inspection Rights
	 	 	66	 
	7.11 Use of Proceeds
	 	 	67	 
	7.12 Financial Covenants
	 	 	67	 
	7.13 Additional Guarantors
	 	 	68	 
	7.14 REIT Qualification; Listing on Securities Exchange
	 	 	68	 
	7.15 Ownership of Borrower
	 	 	68	 
	7.16
Delivery of Guarantor Certificates, Opinions, etc.
	 	 	69	 
	ARTICLE VIII. NEGATIVE COVENANTS
	 	 	69	 
	8.01 Liens
	 	 	69	 
	8.02 Investments
	 	 	70	 
	8.03 Indebtedness
	 	 	71	 
	8.04 Fundamental Changes
	 	 	72	 
	8.05 Dispositions
	 	 	72	 
	8.06 Restricted Payments
	 	 	73	 
	8.07 Change in Nature of Business
	 	 	74	 
	8.08 Transactions with Affiliates
	 	 	74	 
	8.09 Burdensome Agreements
	 	 	74	 
	8.10 Use of Proceeds
	 	 	74	 
	8.11 Amendments to Organization Documents
	 	 	74	 
	ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES
	 	 	74	 
	9.01 Events of Default
	 	 	74	 
	9.02 Remedies Upon Event of Default
	 	 	77	 
	9.03 Application of Funds
	 	 	77	 






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	Section	 	Page	 
	ARTICLE X. ADMINISTRATIVE AGENT
	 	 	78	 
	10.01 Appointment and Authorization of Administrative Agent
	 	 	78	 
	10.02 Rights as a Lender
	 	 	78	 
	10.03 Exculpatory Provisions
	 	 	79	 
	10.04 Reliance by Administrative Agent
	 	 	79	 
	10.05 Delegation of Duties
	 	 	80	 
	10.06 Resignation of Agent
	 	 	80	 
	10.07 Non-Reliance on Agent and Other Lenders
	 	 	81	 
	10.08 No
Other Duties, Etc.
	 	 	81	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	81	 
	10.10 Guaranty Matters
	 	 	82	 
	ARTICLE XI. MISCELLANEOUS
	 	 	82	 
	11.01
Amendments, Etc.
	 	 	82	 
	11.02 Notices; Effectiveness; Electronic Communications
	 	 	83	 
	11.03 No Waiver; Cumulative Remedies
	 	 	85	 
	11.04 Expenses; Indemnity; Damage Waiver
	 	 	85	 
	11.05 Payments Set Aside
	 	 	87	 
	11.06 Successors and Assigns
	 	 	87	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	90	 
	11.08 Right of Setoff
	 	 	91	 
	11.09 Interest Rate Limitation
	 	 	91	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	92	 
	11.11 Survival of Representations and Warranties
	 	 	92	 
	11.12 Severability
	 	 	92	 
	11.13 Replacement of Lenders
	 	 	92	 
	11.14
Governing Law; Jurisdiction; Etc.
	 	 	93	 
	11.15 Waiver of Right to Trial by Jury
	 	 	94	 
	11.16 USA PATRIOT Act Notice
	 	 	94	 






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SCHEDULES



2.01 Commitments and Applicable Percentages



6.06 Litigation



6.09 Environmental Matters



6.13 Subsidiaries and Other Equity Investments



8.01 Existing Liens



8.03 Existing Indebtedness



11.02 Administrative Agent’s Office, Certain Addresses for Notices




EXHIBITS



Form of

A            Committed Loan Notice



B            Swing Line Loan Notice



C            Note



D            Compliance Certificate



E            Assignment and Assumption



F            Guaranty






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CREDIT AGREEMENT




     CREDIT AGREEMENT (this “Agreement”) is entered into as of November 1, 2005, among
COGDELL SPENCER LP, a Delaware limited partnership (“Borrower”), COGDELL SPENCER INC., a
Maryland corporation (“CSI”), each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.



     Borrower has requested that Lenders provide a revolving credit facility, and Lenders are
willing to do so on the terms and conditions set forth herein. In consideration of the mutual
covenants and agreements herein contained, the parties hereto covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




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



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



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



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



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



     “Aggregate Commitments” means the Commitments of all Lenders.



     “Agreement” means this Credit Agreement.



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



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



Applicable Rate




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Eurodollar Rate	 	 
	 	 	 	 	+	 	 
	Pricing Level	 	Leverage Ratio	 	Letters of Credit	 	Base Rate +
	1

	 	< 0.40:1
	 	 	1.00	%	 	 	0.00	%
	2

	 	3 0.40:1 but < 0.50:1
	 	 	1.15	%	 	 	0.00	%
	3

	 	3 0.50:1
	 	 	1.30	%	 	 	0.00	%





Any increase or decrease in the Applicable Rate resulting from a change in the Leverage Ratio shall
become effective as of the first Business Day of the month immediately following the date a
Compliance Certificate is delivered pursuant to Section 7.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then one Pricing Level higher than the previously applicable Pricing Level (unless already
at Pricing Level 3) shall apply as of the first Business Day of the month following the date such
Compliance Certificate was required to have been delivered. The Applicable Rate in effect from the
Closing Date until delivery of the Compliance Certificate for the fiscal quarter ending December
31, 2005 shall be determined based upon Pricing Level 3.




     “Arrangers” means Banc of America Securities LLC and Citigroup Global Markets Inc., in
their capacities as joint lead arrangers and joint book managers.



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



     “Audited Financial Statements” means the audited combined balance sheet of Cogdell
Spencer Inc. Predecessor for the fiscal year ended December 31, 2004, and the related combined
statements of income or operations, shareholders’ equity and cash flows for such fiscal year of
Cogdell Spencer Inc. Predecessor, including the notes thereto.



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



     “Available Amount” means




     (a) until Agent receives the documents, certificates, opinion or other items required
by Section 7.16 with respect to CS Business Trust I, CS Business Trust II and



2









 






each Subsidiary Guarantor, the lesser of $20,000,000 and the Aggregate Commitments; and




     (b) thereafter, the Aggregate Commitments.



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



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



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



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



     “Benefited Parties” means, collectively, Agent and the Lenders and affiliates thereof
party to a Related Swap Contract with CSI or any Subsidiary thereof.



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



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



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



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



     “Capital Reserves” means, for any period and with respect to a Property, an amount
equal to (a) $0.40 per square foot of such Property times (b) a fraction, the numerator of
which is the number of days in such period and the denominator of which is 365. Any portion of a
Property leased under a ground lease to a third party that owns the improvements on such portion of
such Property shall not be included in the determination of Capital Reserves. If the term “Capital
Reserves” is used without reference to any specific Property, then the amount shall be determined
on an aggregate basis with respect to all Properties of CSI and its Subsidiaries and the
appropriate pro rata share of all square footage in Properties owned by Unconsolidated Affiliates.
For the purpose of calculating Unencumbered Adjusted NOI, for the 12 month period following the
Closing Date, the Capital Reserves requirement for each Eligible Property will be $.00 per square
foot to the extent that Borrower deposits prior to or as of the Closing Date and



3









 




maintains during such period a capital reserve account with the Agent having a balance of not
less than $310,000.




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



     “Cash Collateralize” has the meaning specified in Section 2.03(g).



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



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



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



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



4









 





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



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



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



     “Code” means the Internal Revenue Code of 1986.



     “Cogdell Spencer Inc. Predecessor” has the meaning given to such term in the
Registration Statement.



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



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



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



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



     “Compliance Certificate” means a certificate substantially Exhibit D.



     “Consolidated Adjusted EBITDA” means for any period for CSI and its Subsidiaries on a
consolidated basis (without duplication): (a) net income (loss) of CSI and its Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP, exclusive of the following
(but only to the extent included in determination of such net income (loss)): (i) depreciation and
amortization expense; (ii) Consolidated Interest Expense; (iii) income tax expense; and (iv)
extraordinary or non-recurring gains and losses; plus (b) CSI’s pro rata share of net
income (loss) of Unconsolidated Affiliates for such period determined on a consolidated basis, in
accordance with GAAP, exclusive of the following (but only to the extent included in determination
of such net income (loss)): (A) depreciation and amortization expense; (B) interest expense
(without duplication of any amounts excluded as Consolidated Interest Expense under clause
(a)(ii) above); (C) income tax expense; and (D) extraordinary or non-recurring gains and losses
of Unconsolidated Affiliates; less (c) Capital Reserves. “Consolidated Adjusted EBITDA”
shall be adjusted to remove any impact from straight line rent leveling adjustments



5









 




required under GAAP and amortization of intangibles pursuant to Statement No. 141 of the
Financial Accounting Standards Board (FAS 141).




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



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



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



     “Consolidated Secured Indebtedness” means, at any time, the aggregate outstanding
principal amount of all Indebtedness of CSI and its Subsidiaries at such time on a consolidated
basis, that is secured in any manner by a Lien, and shall include (without duplication) the pro
rata share of the aggregate outstanding principal amount of all Indebtedness of Unconsolidated
Affiliates that is secured in any manner by a lien.



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



     “Consolidated Total Asset Value” means, at any time, the sum of all of the following
of CSI and its Subsidiaries on a consolidated basis determined in accordance with GAAP: (a) cash
and cash equivalents and investment grade marketable securities (other than Equity Interests in CSI
or any Subsidiaries); plus (b)(i) Consolidated Adjusted EBITDA for the fiscal quarter most
recently ended (less any portion thereof associated with Development Properties and
Unimproved Land) times four, divided by (ii) 0.085; plus (c) the GAAP book
value of Properties acquired during the most recent two fiscal quarters; plus (d)
Construction-in-Process until the earlier to occur of (i) the one year anniversary date of project
completion and (ii) the fiscal quarter immediately following the date that the Property achieves an
Occupancy Rate of at least



6









 




80%; plus (e) the GAAP book value of Unimproved Land, mortgage receivables and other
promissory notes. For the purposes herein, the pro rata share of assets held by Unconsolidated
Affiliates (excluding assets of the type described in the immediately preceding clause (a))
will be included in Consolidated Total Asset Value calculations consistent with the above-described
treatment for wholly owned assets. For purposes of determining Consolidated Total Asset Value, Net
Operating Income from Properties acquired or disposed of by CSI or any Subsidiary during the
immediately preceding two fiscal quarters shall be excluded under clause (b)(i) above.




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



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



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



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



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



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



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



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



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



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



     “Default Rate” means (a) when used with respect to Obligations other than L/C Fees an
interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable
to Base



7









 




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




     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Committed Loans, participations in L/C Obligations or participations in Swing Line Loans required
to be funded by it hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.



     “Development Property” means a Property currently under development that has not
achieved an Occupancy Rate of at least 80%, or on which the improvements (other than tenant
improvements on unoccupied space) related to the development have not been completed. A
Development Property on which all improvements (other than tenant improvements on unoccupied space)
related to the development of such Property have been completed for at least 12 months shall cease
to constitute a Development Property notwithstanding the fact that such Property has not achieved
an Occupancy Rate of at least 80%.



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



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



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; and (c) any
other Person (other than a natural person) approved by (i) Agent, the L/C Issuer and Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, Borrower (each such
approval not to be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include Borrower or any of Borrower’s Affiliates or
Subsidiaries.



     “Eligible Property” means a Property which satisfies all of the following
requirements: (a) such Property is fully developed as (i) a medical office property or (ii) an
ambulatory property; (b) the Property is owned, or leased under a Ground Lease reasonably
acceptable to Agent, by Borrower and/or a Guarantor; (c) such Property, or any interest of Borrower
or any Subsidiary therein, is free of all Liens except those permitted by Section 8.01; (d)
if such Property is owned or leased by a Guarantor, the Borrower directly, or indirectly through a
Subsidiary, has the right to take the following actions without the need to obtain the consent of
any Person: (x) to sell, transfer or otherwise dispose of such Property and (y) to create a lien on
such Property as security for Indebtedness of Borrower or such Guarantor, as applicable; and (e)
such Property is free of all structural defects or major architectural deficiencies, title defects,
environmental conditions or other adverse matters except for defects, deficiencies, conditions or



8









 




other matters individually or collectively which are not material to the profitable operation
of such Property.




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



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



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



     “Equity Issuance” means any issuance by CSI or any Subsidiary of any Equity Interest
in such Person and shall in any event include the issuance of any Equity Interest upon the
conversion or exchange of any security constituting Indebtedness that is convertible or
exchangeable, or is being converted or exchanged, for Equity Interests.



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



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in



9









 




reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.




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



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



	 	 	 	 	 	 	 
	 

	 	Eurodollar Rate
	 	=
	 	               Eurodollar Base Rate
	 

	 	 	 	 	 	1.00 — Eurodollar Reserve Percentage







     Where,




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




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



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



10









 





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



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



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



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



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



11









 




obligations consisting of continuing indemnities and other contingent Obligations of Borrower
or any Loan Party that may be owing to any of its Related Parties or any Lender pursuant to the
Loan Documents and expressly survive termination of this Agreement or any other Loan Document).




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



     “Fee Letter” means the letter agreement, dated October 4, 2005, among Borrower, Agent
and the Arrangers with respect to the credit facilities contemplated by this Agreement.



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



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



     “Funds From Operations” means, with respect to CSI and its Subsidiaries and for a
given period, (a) net income (loss) of CSI and its Subsidiaries determined on a consolidated basis
for such period minus (or plus) (b) gains (or losses) from debt restructuring and
sales of property determined on a consolidated basis during such period plus (c)
depreciation with respect to CSI’s and its Subsidiaries’ real estate assets and amortization (other
than amortization of deferred financing costs) of CSI and its Subsidiaries determined on a
consolidated basis for such period, all after adjustment for unconsolidated partnerships and joint
ventures. Adjustments for unconsolidated entities will be calculated to reflect funds from
operations on the same basis.



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



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to



12









 




government (including any supra-national bodies such as the European Union or the European
Central Bank).




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



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



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



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



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



13









 





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



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



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



14









 





     “Indemnified Taxes” means Taxes other than Excluded Taxes.



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



     “Information” has the meaning specified in Section 11.07.



     “Initial Public Offering” means an initial public offering of Equity Interests in CSI
pursuant to the Registration Statement.



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



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




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




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




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



     “Internal Control Event” means a material weakness in, or fraud that involves
management or other employees who have a significant role in, CSI’s internal controls over
financial reporting, in each case as described in the Securities Laws.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.



15









 





     “IRS” means the United States Internal Revenue Service.



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



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



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



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



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



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



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



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



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



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



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



16









 





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



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



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



     “Letter of Credit” means any letter of credit issued hereunder.



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



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



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



     “Loan Documents” means this Agreement (including the Facility Guaranty contained
herein), each Note, each Issuer Document, the Fee Letter and the Guaranty.



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



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



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of CSI and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of any Loan Party to perform its obligations under any Loan
Document



17









 




to which it is a party; or (c) a material adverse effect upon the legality, validity, binding
effect or enforceability against any Loan Party of any Loan Document to which it is a party.




     “Material Subsidiary” means any direct or indirect Subsidiary of CSI, other than any
Excluded Subsidiary, which has total assets equal to or greater than five percent (5%) of the
Consolidated Total Asset Value (calculated as of the most recent fiscal period end with respect to
which Agent shall have received financial statements required to be delivered pursuant to
Sections 7.01(a) or (b)); provided, however, that any Material
Subsidiary shall cease to be a Material Subsidiary and shall be released immediately from the
Guaranty or any obligation to provide a Guarantee of Borrower’s Obligations, as the case may be, if
it or substantially all of its assets are sold or conveyed in a transaction otherwise permitted
under this Agreement.



     “Maturity Date” means October 31, 2008, such earlier date upon which the Aggregate
Commitments may be terminated in accordance with the terms hereof or as such date may be extended
pursuant to Section 2.15.



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



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



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



18









 





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



     “Note” means a promissory note made by Borrower in favor of a Lender evidencing Loans
made by such Lender, substantially in the form of Exhibit C.



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



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



     “Off-Balance Sheet Obligations” means liabilities and obligations of CSI, Borrower,
any Subsidiary or any other Person in respect of “off-balance sheet arrangements” (as defined in
the SEC Off-Balance Sheet Rules) which CSI would be required to disclose in the “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” section of its report on
Form 10-Q or Form 10-K (or their equivalents) which CSI is required to file with the SEC. As used
in this definition, the term “SEC Off-Balance Sheet Rules” means the Disclosure in Management’s
Discussion and Analysis About Off-Balance Sheet Arrangements, Securities Act



19









 




Release No. 33-8182, 68 Fed. Reg. 5982 (Feb. 5, 2003) (codified at 17 CFR pts. 228, 229 and
249).




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



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



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



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



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



     “PBGC” means the Pension Benefit Guaranty Corporation.



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



     “Permitted Distribution Amount” means (i) for the period of four consecutive fiscal
quarters of CSI ending on December 31, 2006, the greater of (A) 100% of Funds From Operations for
such period and (B) the estimated distributions on the common stock of CSI and the Partnership
Units of Borrower as described in the Registration Statement, and (ii)



20









 




commencing on January 1, 2007 and continuing thereafter, 95% of Funds From Operations for the
relevant period.




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



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



     “Platform” has the meaning specified in Section 7.02.



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



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



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



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



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



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



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



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



     “Related Swap Contract” means all Swap Contracts which are entered into or maintained
by Borrower or any Subsidiary with a Lender or Affiliate of a Lender to the extent required to
hedge Obligations under the Loan Documents and which are not prohibited by the express terms of the
Loan Documents.



21









 





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



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



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



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



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



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



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



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



     “Single Asset Entity” means a Person (other than an individual) that (a) only owns a
single Property; (b) is engaged only in the business of owning, developing and/or leasing such
Property; and (c) receives substantially all of its gross revenues from such Property. In
addition,



22









 




if the assets of a Person consist solely of (i) Equity Interests in one other Single Asset
Entity and (ii) cash and other assets of nominal value incidental to such Person’s ownership of the
other Single Asset Entity, such Person shall also be deemed to be a “Single Asset Entity”.




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




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




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




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



     “Subsidiary” of a Person means, for any Person, any corporation, partnership or other
entity of which at least a majority of the Voting Equity Interests is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts of
which are consolidated with those of such Person pursuant to GAAP. Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of CSI.



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



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



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-



23









 




market value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).




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



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



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



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



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



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



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



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



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



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



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



     “Unencumbered Adjusted NOI” means, for any period, (a) Unencumbered NOI minus
(b) Capital Reserves for all Eligible Properties for such period.



24









 





     “Unencumbered Asset Value” means (a) the Unencumbered Adjusted NOI (excluding NOI
attributable to Development Properties) for the two fiscal quarters most recently ended
times two, divided by (ii) 0.085, plus (b) the GAAP book value of all
Properties acquired during such two fiscal quarters of Borrower, which Properties are free of any
Liens except those permitted by Section 8.01, plus (c) the GAAP book value of
Development Properties that are free of any Liens except those permitted under Section
8.01, until the earlier of (i) the one year anniversary date of project completion and (ii) the
second fiscal quarter of Borrower after the project achieves an Occupancy Rate of 80%. For
purposes of this definition, to the extent the Unencumbered Asset Value attributable to
Construction-in-Process would exceed 10% of the Unencumbered Asset Value, such excess shall be
excluded. For purposes of determining Unencumbered Asset Value, Unencumbered Adjusted NOI from
Properties acquired or disposed of by CSI or any Subsidiary during the immediately preceding two
fiscal quarters shall be excluded under clause (a) above.



     “Unencumbered NOI” means, for any period, (a) NOI from all Eligible Properties
plus (b) at any time that Consolidated Total Asset Value equals or exceeds $500,000,000,
NOI from Properties that are not Eligible Properties if expressly approved by the Required Lenders.



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



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



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



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



     “Unsecured Indebtedness” means Indebtedness of CSI and its Subsidiaries that is not
Consolidated Secured Indebtedness and includes the pro rata share of such Indebtedness of
Unconsolidated Affiliates.



     “Unsecured Interest Expense” means, for a given period, all Consolidated Interest
Expense of CSI and its Subsidiaries attributable to Unsecured Indebtedness of CSI and its
Subsidiaries for such period and includes the pro rata share of such interest expense of
Unconsolidated Affiliates.



     “Voting Equity Interests” means Equity Interests in a Person having by their terms
ordinary voting power to elect the board of directors or other individuals performing similar
functions of such Person (without regard to any contingency).



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



25









 





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



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



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



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



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either Borrower or the
Required Lenders shall so request, Agent, Lenders and Borrower shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior
to such change therein and (ii) Borrower shall provide to Agent and Lenders financial statements
and other documents required under this Agreement or as reasonably requested



26









 




hereunder setting forth a reconciliation between calculations of such ratio or requirement
made before and after giving effect to such change in GAAP.




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



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



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



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



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




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



     2.02 Borrowings, Conversions and Continuations of Committed Loans. (a) Each Committed
Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon Borrower’s irrevocable notice to



27









 




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




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



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



28









 





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



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



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




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




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




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




     (B) the expiry date of such requested Letter of Credit would occur after the
L/C Expiration Date, unless all the Lenders have approved such expiry date.




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




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any



29









 






Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or
request that the L/C Issuer refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon the L/C Issuer
with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing Date and which the L/C
Issuer in good faith deems material to it;




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




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




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




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




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




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




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




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



30









 





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




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




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




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



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     (c) Drawings and Reimbursements; Funding of Participations.




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




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




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




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




     (v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any



32









 






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




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



     (d) Repayment of Participations.




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




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



33









 





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




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




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




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




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




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



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



     (f) Role of L/C Issuer. Each Lender and Borrower agree that, in paying any drawing
under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by the Letter of Credit)
or to ascertain or inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer, Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable to any Lender for (i) any action taken or omitted in connection herewith at the



34









 




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




     (g) Cash Collateral. Upon the request of Agent, (i) if the L/C Issuer has honored any
full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C
Borrowing, or (ii) if, as of the L/C Expiration Date, any L/C Obligation for any reason remains
outstanding, Borrower shall, in each case, immediately Cash Collateralize the then Outstanding
Amount of all L/C Obligations. Sections 2.05 and 9.02(c) set forth certain additional requirements
to deliver Cash Collateral hereunder. For purposes hereof, “Cash Collateralize” means to
pledge and deposit with or deliver to Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to Agent and the L/C Issuer (which documents are hereby consented
to by Lenders). Derivatives of such term have corresponding meanings. Borrower hereby grants to
Agent, for the benefit of the L/C Issuer and Lenders, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing. Cash collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of America.



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



     (i) L/C Fees. Borrower shall pay to Agent for the account of each Lender in
accordance with its Applicable Percentage a Letter of Credit fee (the “L/C Fee”) for each
Letter of Credit equal to the Applicable Rate times the daily amount available to be drawn
under such



35









 




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




     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee (i) with respect
to each commercial Letter of Credit at the rate per annum equal to the Applicable Rate
times the daily amount available to be drawn under any such Letter of Credit, and payable
upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit
increasing the amount of such Letter of Credit, at a rate separately agreed between Borrower and
the L/C Issuer, computed on the amount of such increase, and payable upon the effectiveness of such
amendment, and (iii) with respect to each standby Letter of Credit, at the rate per annum equal to
the Applicable Rate times the daily amount available to be drawn under any such Letter of
Credit and on a quarterly basis in arrears. Such fronting fee shall be due and payable on the
tenth Business Day after the end of each March, June, September and December, in respect of the
most recently-ended quarterly period (or portion thereof, in the case of the first payment),
commencing with the first such date to occur after the issuance of such Letter of Credit, on the
L/C Expiration Date and thereafter on demand. For purposes of computing the daily amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. In addition, Borrower shall pay directly to the L/C Issuer
for its own account the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to
time in effect. Such individual customary fees and standard costs and charges are due and payable
on demand and are nonrefundable.



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



     2.04 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, Swing Line
Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section
2.04, to make loans (each such loan, a “Swing Line Loan”) to Borrower from time to time
on any Business Day during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line
Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans
and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such
Lender’s Commitment; provided, however, that after giving effect to any Swing Line
Loan, (i) the Total Outstandings shall not exceed the Available Amount, and (ii) the



36









 




aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Commitment. Within the foregoing limits, and subject to the other terms and conditions
hereof, Borrower may borrow under this Section 2.04, prepay under Section 2.05 and
reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan.
Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from Swing Line Lender a risk participation in
such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage
times the amount of such Swing Line Loan.




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



     (c) Refinancing of Swing Line Loans.




     (i) Swing Line Lender at any time in its sole and absolute discretion may request, on
behalf of Borrower (which hereby irrevocably authorizes Swing Line Lender to so request on
its behalf), that each Lender make a Base Rate Committed Loan in an amount equal to such
Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a Committed
Loan Notice for purposes hereof) and in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the Available Amount and
the conditions set forth in Section 4.02. Swing Line Lender shall furnish Borrower
with a copy of the applicable Committed Loan



37









 






Notice promptly after delivering such notice to Agent. Each Lender shall make an
amount equal to its Applicable Percentage of the amount specified in such Committed Loan
Notice available to Agent in immediately available funds for the account of Swing Line
Lender at the Administrative Agent’s Office not later than 11:00 a.m. on the day specified
in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each
Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan
to Borrower in such amount. Agent shall remit the funds so received to Swing Line Lender.




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




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




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



     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if Swing Line Lender receives any payment on account of such Swing Line
Loan, Swing Line Lender will distribute to such Lender its Applicable



38









 






Percentage of such payment (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender’s risk participation was funded) in
the same funds as those received by Swing Line Lender.




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



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



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



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



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



39









 




prepayment and the payment amount specified in such notice shall be due and payable on the
date specified therein.




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



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



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



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



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




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



40









 






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




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




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



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



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



     (a) Utilization Fee. Borrower shall pay to Agent for the account of each Lender in
accordance with its Applicable Percentage a utilization fee (the “Utilization Fee”) equal
to (i) on each day that the Total Outstandings are less than 50% of the amount of the Aggregate
Commitments then in effect (or, if terminated, in effect immediately prior to such termination),
0.200% times the actual daily amount by which the Aggregate Commitments exceed the Total
Outstandings and (ii) on each day that the Total Outstandings equal or exceed 50% of the amount of
the Aggregate Commitments then in effect (or, if terminated, in effect immediately prior to such
termination), 0.100% times the actual daily amount by which the Aggregate Commitments
exceed the Total Outstandings. The Utilization Fee shall be due and payable quarterly in arrears
on the last Business Day of each March, June, September and December, commencing with the first
such date to occur after the Closing Date, and on the Maturity Date (and, if applicable, thereafter
on demand). The Utilization Fee shall be calculated quarterly in arrears. The Utilization Fee
shall accrue at all times following the Closing Date, including at any time during which one or
more of the conditions in Article IV is not met.



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



     2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans when
the Base Rate is determined by Bank of America’s “prime rate” shall be made on



41









 




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




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



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



     2.12 Payments Generally; Agent’s Clawback.




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



42









 






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




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




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



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to Agent
funds for any Loan to be made by such Lender as provided in the foregoing provisions of this
Article II, and such funds are not made available to Borrower by Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not satisfied or
waived in accordance



43









 




with the terms hereof, Agent shall return such funds (in like funds as received from such
Lender) to such Lender, without interest.




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



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



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




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




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


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





44









 






     2.14 Increase in Commitments.




     (a) Request for Increase. Provided there exists no Default, upon notice to Agent
(which shall promptly notify the Lenders), Borrower may from time to time request an increase in
the Aggregate Commitments by an amount (for all such requests) not exceeding $150,000,000;
provided that (i) any such request for an increase shall be in a minimum amount of
$15,000,000, and (ii) Borrower may make a maximum of three such requests. At the time of sending
such notice, Borrower (in consultation with Agent) shall specify the time period within which each
Lender is requested to respond (which shall in no event be less than ten Business Days from the
date of delivery of such notice to the Lenders).



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



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



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



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



45









 





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



     2.15 Extension of Maturity Date.




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



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



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




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




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




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




     (iv) Borrower shall have paid to Agent for the account of each Lender in accordance
with its Applicable Percentage a fee equal to 0.200% times the Aggregate Commitments
then in effect.



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



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ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



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



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



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



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



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which Borrower is resident for
tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to Borrower (with a copy to Agent), at the
time or times prescribed by applicable law or reasonably requested by Borrower or Agent (but in no
event later than the date on which any amounts are payable under this Agreement), such properly
completed and executed documentation prescribed by applicable law as will permit such payments to
be made without withholding or at a reduced rate of withholding. In addition, any Lender, if
requested by Borrower or Agent, shall deliver such other documentation prescribed by applicable law
or reasonably requested by Borrower or Agent as will enable



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Borrower or Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.




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




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




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




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




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



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



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



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



     3.04 Increased Costs.



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




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




     (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified



49









 





Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any
change in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or




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


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




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



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



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



50









 




in Law giving rise to such increased costs or reductions is retroactive, then the nine-month
period referred to above shall be extended to include the period of retroactive effect thereof).




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



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



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



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



     3.06 Mitigation Obligations; Replacement Lenders.



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



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



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



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ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender
to make its initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:



     (a) Agent’s receipt of the following, each of which shall be originals or telecopies (followed
promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer
of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form and substance
satisfactory to Agent and each of the Lenders:




     (i) fully executed counterparts of this Agreement, sufficient in number for
distribution to Agent, each Lender and Borrower;




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




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




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




     (v) a favorable opinion of counsel to the Loan Parties addressed to Agent and each
Lender, as to the matters concerning CSI and the Borrower and the Loan Documents in form and
substance reasonably satisfactory to Agent;




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




     (vii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the
conditions specified in Sections 4.02(a) and (b) have been satisfied, and
(B) that there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect;



52









 






     (viii) evidence that (A) the Initial Public Offering shall have been, or substantially
simultaneously with the Closing Date shall be, consummated in accordance with the terms of
the final agreements and other documents (including all schedules and exhibits thereto) that
contain terms that are material to the structure of the Initial Public Offering, in
compliance with applicable Laws and regulatory approvals and (B) the aggregate Net Proceeds
of the Initial Public Offering shall have amounted to at least $95,000,000;




     (ix) a duly completed pro forma Compliance Certificate as of the last day of the fiscal
quarter of Cogdell Spencer Inc. Predecessor most recently ended prior to the Closing Date,
giving effect to the Initial Public Offering, signed by a Responsible Officer of Borrower or
CSI;




     (x) evidence of the ownership by CSI, directly or indirectly, of not less than the
percentage of the Partnership Units of Borrower indicated in the Registration Statement; and




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



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



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



     (d) The Closing Date shall have occurred on or before December 31, 2005.



     Without limiting the generality of the provisions of Section 10.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless Agent shall have received notice from such Lender
prior to the proposed Closing Date specifying its objection thereto.



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



     (a) The representations and warranties of Borrower and each other Loan Party contained in
Article VI or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct in all material
respects on and as of the date of such Credit Extension, except to the extent that such



53









 




representations and warranties specifically refer to an earlier date, in which case they shall
be true and correct in all material respects as of such earlier date, and except that for purposes
of this Section 4.02, the representations and warranties contained in subsections
(a) and (b) of Section 6.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section
7.01.




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



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



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



ARTICLE V.

CSI GUARANTY




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



     5.02 Payment. If Borrower shall default in payment or performance of any of the Obligations,
whether principal, interest, premium, fee (including, but not limited to, loan fees and attorneys’
fees and expenses), or otherwise, when and as the same shall become due, whether according to the
terms hereof, by acceleration, or otherwise, or upon the occurrence of any Event of Default
hereunder that has not been cured or waived, then CSI shall, upon demand thereof by Agent or its
successors or assigns as of the date of such demand, fully pay to Agent, for the benefit of the
Benefited Parties, an amount equal to all of the Guarantor’s Obligations then due and owing.



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



54









 






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




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




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




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




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




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




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




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




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



55









 




Borrower’s Obligations or Guarantor’s Obligations, other than actual repayment in full of
the Borrower’s Obligations or the Guarantor’s Obligations.




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



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



     5.05 Waiver; Subrogation.



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



     (b) CSI hereby agrees that payment or performance by CSI of the Guarantee made under this
Article V may be enforced by Agent on behalf of the Benefited Parties upon demand by Agent
to CSI without Agent being required, and CSI expressly waives any right it may have to require
Agent, to (i) prosecute collection or seek to enforce or resort to any remedies against Borrower or
any other Guarantor, or (ii) seek to enforce or resort to any remedies with respect to any security
interests, Liens or encumbrances granted to Agent by Borrower, any other Guarantor or any other
Person on account of Borrower’s Obligations or any Guarantee thereof, IT BEING EXPRESSLY
UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY CSI THAT DEMAND UNDER THIS ARTICLE V MAY BE MADE
BY AGENT, AND THE PROVISIONS HEREOF ENFORCED BY AGENT, EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF
DEFAULT OCCURS AND IS CONTINUING UNDER THIS



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AGREEMENT. Neither Agent nor any Lender shall have any obligation to protect, secure or
insure any of the foregoing security interests, Liens or encumbrances on the properties or
interests in properties subject thereto.




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



     5.06 Set-Off and Waiver. CSI waives any right to assert against Agent or any Lender as a
defense, counterclaim, set-off, recoupment or cross claim in respect of the Guarantor’s
Obligations, any defense (legal or equitable) or other claim which CSI may now or at any time
hereafter have against Borrower or the Benefited Parties without waiving any additional defenses,
set-offs, counterclaims or other claims otherwise available to CSI. If at any time hereafter the
Benefited Parties employ counsel for advice or other representation to enforce any of the
Guarantor’s Obligations that arise out of an Event of Default, then, in any of the foregoing
events, all of the reasonable attorneys’ fees arising from such services and all expenses, costs
and charges in any way or respect arising in connection therewith or relating thereto shall be paid
by CSI to Agent, for the benefit of the Benefited Parties, on demand. CSI agrees that Agent and
each Lender shall have a lien for all Guarantor’s Obligations upon all deposits or deposit
accounts, of any kind, or any interest in any deposits or deposit accounts of any kind, now or
hereafter pledged, mortgaged, transferred or assigned to Agent or such Lender or otherwise in the
possession or control of Agent or such Lender (other than for safekeeping) for any purpose for the
account or benefit of CSI and including any balance of any deposit account or of any credit of CSI
with Agent or such Lender, whether now existing or hereafter established, hereby authorizing Agent
and each Lender from and after the occurrence of an Event of Default giving rise to any of
Guarantor’s Obligations at any time or times with or without prior notice to apply such balances or
any part thereof to such of Guarantor’s Obligations to the Lenders then past due and in such
amounts as they may elect, and whether or not the collateral or the responsibility of other Persons
primarily, secondarily or otherwise liable may be deemed adequate. For the purposes of this
Section 5.06, all remittances and property shall be deemed to be in the possession of Agent
or such Lender as soon as the same may be put in transit to it by mail or carrier or by other
bailee.



ARTICLE VI.

REPRESENTATIONS AND WARRANTIES




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



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



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



     6.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, any Loan Party of this Agreement or any other Loan Document.



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



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



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     (b) The unaudited combined balance sheets of Cogdell Spencer Inc. Predecessor dated June 30,
2005 and the related consolidated statements of income or operations, shareholders’ equity and cash
flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of Cogdell Spencer Inc. Predecessor as of
the date thereof and their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal year-end
audit adjustments.



     (c) The unaudited pro forma consolidated balance sheets of CSI and its Subsidiaries dated June
30, 2005 and the related consolidated statements of income or operations, shareholders’ equity and
cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the pro forma financial condition of CSI and its Subsidiaries as
of the date thereof and their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal year-end
audit adjustments.



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



     (e) Since the date of the Audited Financial Statements, no Internal Control Event has
occurred.



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



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



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



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



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



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



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



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



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither CSI, Borrower nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
CSI, Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Sections 4201 or 4243 of ERISA with



60









 




respect to a Multiemployer Plan; and (v) neither CSI, Borrower nor any ERISA Affiliate has
engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.




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



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



     (b) None of Borrower, any Person Controlling Borrower, or any Subsidiary (i) 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, or (ii) is or is required to be registered as an “investment
company” under the Investment Company Act of 1940.



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



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



     6.17 Intellectual Property; Licenses, Etc. CSI, Borrower and each Subsidiary owns, or
possesses the right to use, all of the trademarks, service marks, trade names, copyrights,



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




     6.18 REIT Qualification. CSI has been organized in conformity with the requirements for
qualification as a REIT and its method of operation as described in the Registration Statement will
permit it to meet the requirements for qualification and taxation as a REIT.



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



ARTICLE VII.

AFFIRMATIVE COVENANTS




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



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



     (a) not later than five days following the filing of CSI’s Form 10-K with the SEC for each
fiscal year of CSI, but in any event within 90 days after the end of each fiscal year of CSI, a
consolidated balance sheet of CSI and its Subsidiaries as at the end of such fiscal year, and the
related consolidated statements of income or operations, shareholders’ equity and cash flows for
such fiscal year, certified by the chief executive officer or the chief financial officer of CSI as
fairly presenting the financial condition of CSI and its Subsidiaries and setting forth in each
case in comparative form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, audited and accompanied by (i) a report and opinion of an
independent certified public accounting firm of nationally recognized standing reasonably
acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit and (ii)
an attestation report of such independent certified public accounting firm as to CSI’s internal
controls pursuant to Section 404 of Sarbanes-Oxley expressing a conclusion to which the Required
Lenders do not object; and



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



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



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



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



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




     (i) a duly completed Compliance Certificate signed by the chief financial officer of
CSI;




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




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



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



     (d) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of CSI, and copies of all
annual, regular, periodic and special reports and registration statements which CSI may file



63









 




or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act
of 1934, and not otherwise required to be delivered to Agent pursuant hereto;




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



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



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



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



     Borrower hereby acknowledges that (a) Agent and/or the Arrangers will make available to
Lenders and the L/C Issuer materials and/or information provided by or on behalf of Borrower
hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on IntraLinks
or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be
“public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information
with respect to Borrower or its securities) (each, a “Public Lender”). Borrower hereby
agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” so long as Borrower is the issuer of any outstanding debt
or equity securities that are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities which, at a minimum, shall mean that the word



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“PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC”, Borrower shall be deemed to have authorized Agent, the Arrangers, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material non-public information with
respect to Borrower or its securities for purposes of United States Federal and state securities
laws (provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 11.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Investor”; and (z) Agent and each Arranger shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of
the Platform not designated “Public Investor”. Notwithstanding the foregoing, Borrower shall be
under no obligation to mark any Borrower Materials “PUBLIC”.



     7.03 Notices. Promptly notify Agent and each Lender:



     (a) of the occurrence of any Default;




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



     (c) of the occurrence of any ERISA Event;




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



     (e) of the occurrence of any Internal Control Event.



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



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



     7.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction of its



65









 




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




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



     7.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies that are not Affiliates of CSI, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts (after giving effect to any self-insurance
compatible with the following standards) as are customarily carried under similar circumstances by
such other Persons and providing for not less than 30 days’ prior notice to Agent of termination,
lapse or cancellation of such insurance.



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



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



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



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



     7.12 Financial Covenants.



     (a) Leverage Ratio. Maintain at all times a Leverage Ratio of 0.65:1.0 or less;
provided, however, that the Leverage Ratio may increase up to (but may not exceed)
0.75:1.0 on a one-time basis for not more than two consecutive fiscal quarters of CSI during the
term of this Agreement. This ratio will be calculated at the end of each reporting period for
which this Agreement requires delivery of financial statements, using the results of the four
consecutive fiscal quarter period of CSI ending with that reporting period.



     (b) Fixed Charge Coverage Ratio. Maintain as of the end of each fiscal quarter of CSI
a ratio of Consolidated Adjusted EBITDA to Consolidated Fixed Charges of at least 1.75:1.0. This
ratio will be calculated at the end of each reporting period for which this Agreement requires
delivery of financial statements, using the results of the four consecutive fiscal quarter period
of CSI ending with that reporting period.



     (c) Consolidated Secured Indebtedness to Consolidated Total Asset Value Ratio.
Maintain at all times a ratio of Consolidated Secured Indebtedness to Consolidated Total Asset
Value not more than (i) 0.50:1.0 from the Closing Date through and including December 31, 2006 and
(ii) 0.40:1.0 from January 1, 2007 and continuing thereafter. This ratio will be calculated at the
end of each reporting period for which this Agreement requires delivery of financial statements,
using the results of the four consecutive fiscal quarter period of CSI ending with that reporting
period.



     (d) Consolidated Recourse Indebtedness to Consolidated Total Asset Value Ratio.
Maintain at all times a ratio of Consolidated Recourse Indebtedness to Consolidated Total Asset
Value of 0.15:1.0 or less. This ratio will be calculated at the end of each reporting period for
which this Agreement requires delivery of financial statements, using the results of the four
consecutive fiscal quarter period of CSI ending with that reporting period.



     (e) Unsecured Indebtedness to Unencumbered Asset Value Ratio. Maintain at all times a
ratio of Unsecured Indebtedness to Unencumbered Asset Value of 0.60:1.0 or less; provided,
however, that this ratio may increase up to (but may not exceed) 0.75:1.0 on a one-time
basis for not more than two consecutive fiscal quarters of CSI during the term of this Agreement.
This ratio will be calculated at the end of each reporting period for which this Agreement requires
delivery of financial statements, using the results of the four consecutive fiscal quarter period
of CSI ending with that reporting period.



     (f) Unencumbered Adjusted NOI to Unsecured Interest Expense Ratio. Maintain as of the
end of each fiscal quarter of CSI a ratio of Unencumbered Adjusted NOI to Unsecured Interest
Expense of at least 2.0:1.0. This ratio will be calculated at the end of each reporting period for
which this Agreement requires delivery of financial statements, using the results of the four
consecutive fiscal quarter period of CSI ending with that reporting period.



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




     (i) thirty million Dollars ($30,000,000); plus




     (ii) the sum of 85% of Net Proceeds of Equity Issuances issued after the Closing Date.



     (h) Unencumbered Asset Value. Maintain at all times, with respect to Borrower and the
Guarantors on a consolidated basis, an Unencumbered Asset Value:




     (i) consisting of at least ten Eligible Properties, which have an overall Occupancy
Rate of at least 80%;




     (ii) equal to at least (A) the aggregate amount of Borrower’s outstanding Unsecured
Indebtedness times (B) 1.67; and




     (iii) equal to at least (A) from the Closing Date through and including December 31,
2006, $80,000,000, (B) from January 1, 2007 through and including December 31, 2007,
$100,000,000 and (C) from January 1, 2008 and continuing thereafter, $120,000,000.



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



     7.14 REIT Qualification; Listing on Securities Exchange. Subject to the limitations set forth
in Section 8.06, with respect to CSI, do all things required or necessary to (a) qualify as
and maintain its qualification as a REIT and obtain, at Agent’s request but only to the extent that
an Event of Default has occurred and is continuing, an opinion of counsel acceptable to Agent as to
CSI’s status as a REIT and as to CSI’s power and authority to conduct its business as a REIT and
(b) maintain a listing on any securities exchange that has registered with the SEC under Section 6
of the Securities Exchange Act of 1934, as amended.



     7.15 Ownership of Borrower. With respect to CSI, ensure that CS Business Trust I (unless CSI
(or a successor to CS Business Trust I that is wholly-owned by CSI and is a Guarantor) is the sole
general partner of the Borrower) remains the sole general partner of Borrower and own not less than
1% of the Partnership Units of Borrower, and (b) with respect to CSI (i) be, or own 100% of the
Equity Interests of, the general partner of the Borrower, and (ii) Control the Borrower.




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     7.16 Delivery of Guarantor Certificates, Opinions, etc. Promptly, and in any event within 30
days of the Closing Date, deliver to Agent with respect to CS Business Trust I, CS Business Trust
II and each Subsidiary Guarantor, the following, each of which shall be originals, each properly
executed by a Responsible Officer of each such Person and each in form and substance satisfactory
to Agent and each of the Lenders:




(a) executed counterparts of the Guaranty, sufficient in number for distribution to Agent,
each Lender and the Borrower;




(b) such certificates of resolutions or other action, incumbency certificates and/or other
certificates of Responsible Officers of each of CS Business Trust I, CS Business Trust II,
and each Subsidiary Guarantor as Agent may require evidencing the identity, authority and
capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in
connection with the Guaranty;




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




(d) a favorable opinion of counsel to each CS Business Trust I, CS Business Trust II, and
each Subsidiary Guarantor addressed to Agent and each Lender, as to the existence, good
standing of such Guarantor and the due authorization, execution and delivery, enforceability
and no conflicts with other material agreements of the Guaranty with respect to such
Guarantor, in form and substance reasonably satisfactory to Agent.



ARTICLE VIII.

NEGATIVE COVENANTS




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



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



     (a) Liens pursuant to any Loan Document;



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



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



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



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



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



     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;



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



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



     (j) Liens securing Nonrecourse Indebtedness permitted under Section 8.03(g).



     8.02 Investments. Make any Investments, except:



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



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



     (c) Investments of Borrower in any wholly-owned Subsidiary of the Borrower (other than
Excluded Subsidiaries) and Investments of any wholly-owned Subsidiary in Borrower or in another
wholly-owned Subsidiary of Borrower (other than Excluded Subsidiaries);



     (d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and



70









 







Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;



     (e) Guarantees permitted by Section 8.03;




     (f) Investments by Borrower or any Subsidiary of Borrower in:




     (i) Unconsolidated Affiliates, Excluded Subsidiaries and other Persons that are not
wholly-owned Subsidiaries (other than any Subsidiary that is a Guarantor) not to exceed, in
the aggregate at any time, 25% of the Consolidated Total Asset Value;




     (ii) mortgage receivables not to exceed, in the aggregate at any time, 25% of the
Consolidated Total Asset Value;




     (iii) Construction-in-Process not to exceed, in the aggregate at any time, 15% of the
Consolidated Total Asset Value; and




     (iv) Investments by Borrower or any Subsidiary of Borrower in Development Property and
Unimproved Land not to exceed, in the aggregate at any time, 5% of the Consolidated Total
Asset Value;


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




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



     (a) Indebtedness under the Loan Documents;



     (b) Indebtedness outstanding on the date hereof and listed on Schedule 8.03 and any
refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of
such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder and (ii) the terms relating to principal amount,
amortization, maturity, collateral (if any) and subordination (if any), and other material terms
taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of
any agreement entered into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the Loan Parties or Lenders than the terms of any agreement or
instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the
interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness
does not exceed the then applicable market interest rate;



     (c) Guarantees of Borrower or any Subsidiary in respect of Indebtedness otherwise permitted
hereunder of Borrower or any wholly-owned Subsidiary;



     (d) obligations (contingent or otherwise) of Borrower or any Subsidiary existing or arising
under any Swap Contract, provided that (i) such obligations are (or were) entered into by
such Person in the ordinary course of business for the purpose of directly mitigating risks



71









 







associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person, and not
for purposes of speculation or taking a “market view”; and (ii) such Swap Contract does not contain
any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;



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



     (f) other Recourse Indebtedness; provided, however, that the aggregate amount
of all such Recourse Indebtedness at any one time outstanding shall not exceed the lesser of 85% of
the actual cost or 80% of appraised value of all Properties acquired or financed with such Recourse
Indebtedness; and



     (g) Nonrecourse Indebtedness.



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



     (a) any Subsidiary may merge with (i) Borrower, provided that Borrower shall be the
continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that
when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary
shall be the continuing or surviving Person, and, provided, further, that if a
Guarantor is merging with another Subsidiary, the Guarantor shall be the surviving Person; and



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



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



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



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




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



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



     (e) Dispositions permitted by Section 8.04;




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



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



     (h) Dispositions by CSI and its Subsidiaries not otherwise permitted under this Section
8.05; provided that, at the time of such Disposition, no Default shall exist or would
result from such Disposition;


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




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



     (a) so long as no Default shall have occurred and be continuing at the time of any action
described below or would result therefrom, CSI may declare and make any cash dividends or make any
other payment or distribution of cash to its shareholders on account of its capital stock during
any period of four consecutive fiscal quarters of CSI in an amount not to exceed the greater of (i)
the Permitted Distribution Amount and (ii) the aggregate minimum amount required during such period
for CSI to qualify as and maintain its qualification as a REIT;



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



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



     (d) notwithstanding clauses (a) and (b) above, CSI may, during any relevant
period, make cash distributions to its shareholders in the minimum amount required during such
period for CSI to qualify as and maintain its qualification as a REIT; provided,
however, that notwithstanding the foregoing, if (i) a Default under Section 9.01(f) or
(g) (without giving effect to any grace or lapse of time referred to therein) shall have
occurred and be continuing, or (ii)



73









 







any other Event of Default shall have occurred and as a result thereof the Obligations have
been acelerated, neither the Borrower nor CSI shall make or declare any dividends or other cash
distributions; and



     (e) CSI may issue shares of its common stock upon the exercise of conversion rights by holders
of Partnership Units.



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



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



     8.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to Borrower or any Guarantor or to otherwise transfer property to Borrower or any
Guarantor, (ii) of any Subsidiary (other than an Excluded Subsidiary) or CSI to Guarantee the
Indebtedness of Borrower or (iii) of CSI or any Subsidiary to create, incur, assume or suffer to
exist Liens on property of such Person; provided, however, that this clause (iii) shall not
prohibit any such Contractual Obligation in favor or any holder of Indebtedness described under
Section 8.03(e) to the extent that such Contractual Obligation relates solely to the
property financed with such Indebtedness; or (b) requires the grant of a Lien to secure an
obligation of such Person (other than an Excluded Subsidiary) if a Lien is granted to secure
another obligation of such Person.



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



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



ARTICLE IX.

EVENTS OF DEFAULT AND REMEDIES




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



74









 





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



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



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



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



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



75









 







Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to
which Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the
Swap Termination Value owed by Borrower or such Subsidiary as a result thereof is greater than
$25,000,000; or (iii) Borrower or any Subsidiary fails to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in excess of
$25,000,000 in the aggregate under any Swap Contract; or



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



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



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



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



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



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has any or further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document or any provision thereof; or



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



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



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



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



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



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


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




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




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




     Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to Lenders and the
L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer (including fees and time charges for attorneys who may be employees of
any Lender or the L/C Issuer), amounts comparable to the foregoing in respect of Related
Swap Contracts and amounts payable under Article III), ratably among



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them in proportion to the respective amounts described in this clause Second
payable to them;




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




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




     Fifth, to Agent for the account of the L/C Issuer, to Cash Collateralize that
portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit;




     Sixth, to payment of the termination amount and amounts comparable to the
foregoing in respect of then-outstanding Related Swap Contracts as to which the Agent shall
have received notice of termination and the Swap Termination Value thereof from the
applicable Lender or Affiliate of a Lender; and




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



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



ARTICLE X.

ADMINISTRATIVE AGENT




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



     10.02 Rights as a Lender. The Person serving as Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the same as though it
were not Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or
unless the context otherwise requires, include the Person serving as Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act
as the financial advisor or in any other advisory capacity for and generally engage in any



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kind of business with Borrower or any Subsidiary or other Affiliate thereof as if such Person
were not Agent hereunder and without any duty to account therefor to Lenders.



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



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



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



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



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



     10.04 Reliance by Administrative Agent. Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. Agent also may rely upon any statement made to it
orally or by telephone and believed by it to have been made by the proper Person, and shall not
incur any liability for relying thereon. In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be



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fulfilled to the satisfaction of a Lender or the L/C Issuer, Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless Agent shall have received notice
to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance
of such Letter of Credit. Agent may consult with legal counsel (who may be counsel for Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.



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



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



     Any resignation by Bank of America as Agent pursuant to this Section shall also constitute its
resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a



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



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



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



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



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



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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to Agent and, in the event that Agent shall consent to the making of such


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payments directly to Lenders and the L/C Issuer, to pay to Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Agent and its agents and counsel, and any
other amounts due Agent under Sections 2.09 and 11.04. Nothing contained herein
shall be deemed to authorize Agent to authorize or consent to or accept or adopt on behalf of any
Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize Agent to vote in respect of
the claim of any Lender in any such proceeding.




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



ARTICLE XI.

MISCELLANEOUS




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



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



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



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



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 11.01) any fees
or other amounts payable hereunder or under any other Loan Document, without the written consent of
each Lender directly affected thereby; provided, however, that only the consent of
the



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Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive
any obligation of Borrower to pay interest or L/C Fees at the Default Rate or (ii) to amend any
financial covenant hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee
payable hereunder;



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



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



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



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



     11.02 Notices; Effectiveness; Electronic Communications.



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




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




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



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




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



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



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     (d) Change of Address, Etc. Each of Borrower, Agent, the L/C Issuer and Swing Line
Lender may change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by notice to
Borrower, Agent, the L/C Issuer and Swing Line Lender. In addition, each Lender agrees to notify
Agent from time to time to ensure that Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.



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



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



     11.04 Expenses; Indemnity; Damage Waiver.



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



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



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



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions



86









 







contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages
arising from the use by unintended recipients of any information or other materials distributed by
it through telecommunications, electronic or other information transmission systems in connection
with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.



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



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



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



     11.06 Successors and Assigns.



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



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     (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that (i) except in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment
to a Lender or an Affiliate of a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such assignment is
delivered to Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the
Trade Date, shall not be less than $5,000,000 unless each of Agent and, so long as no Event of
Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, except that this clause (ii) shall not
apply to rights in respect of Swing Line Loans; (iii) any assignment of a Commitment must be
approved by Agent, the L/C Issuer and Swing Line Lender, such approval not to be unreasonably
withheld or delayed, unless the Person that is the proposed assignee is itself a Lender (whether or
not the proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties to
each assignment shall execute and deliver to Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 and the Eligible Assignee, if it shall not be a Lender,
shall deliver to Agent an Administrative Questionnaire. Subject to acceptance and recording
thereof by Agent pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party
to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of
Sections 3.01, 3.04, 3.05, and 11.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Upon request, Borrower (at
its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.



     (c) Register. Agent, acting solely for this purpose as an agent of Borrower, shall
maintain at Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it
and a register for the recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for



88









 







inspection by each of Borrower and the L/C Issuer, at any reasonable time and from time to
time upon reasonable prior notice. In addition, at any time that a request for a consent for a
material or substantive change to the Loan Documents is pending, any Lender may request and receive
from Agent a copy of the Register.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
Borrower or Agent, sell participations to any Person (other than a natural person or Borrower or
any of Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion
of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing
Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) Borrower, Agent, the L/C Issuer and the
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, waiver or
other modification described in the first proviso to Section 11.01 that affects such
Participant. Subject to subsection (e) of this Section, Borrower agrees that each Participant
shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 11.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.13 as though it were a
Lender.



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



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



     (g) Electronic Execution of Assignments. The words “execution”, “signed”,
“signature”, and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any



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applicable law, including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other similar state laws
based on the Uniform Electronic Transactions Act.



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



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



     11.07 Treatment of Certain Information; Confidentiality. Each of Agent, Lenders and the L/C
Issuer agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or



90









 







thereunder, (f) subject to an agreement containing provisions substantially the same as those
of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to
Borrower and its obligations, (g) with the consent of CSI or Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to Agent, any Lender, the L/C Issuer or any of their respective Affiliates on
a nonconfidential basis from a source other than CSI or Borrower. For purposes of this Section,
“Information” means all information received from CSI or Borrower or any Subsidiary
relating to CSI, Borrower or any Subsidiary or any of their respective businesses, other than any
such information that is available to Agent, any Lender or the L/C Issuer on a nonconfidential
basis prior to disclosure by CSI, Borrower or any Subsidiary, provided that, in the case of
information received from CSI, Borrower or any Subsidiary after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information. Each of Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information
may include material non-public information concerning CSI, Borrower or a Subsidiary, as the case
may be, (b) it has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in accordance with
applicable Law, including United States Federal and state securities Laws.



     11.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of Borrower or any other Loan
Party against any and all of the obligations of Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer or any
such Affiliate, irrespective of whether or not such Lender or the L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such obligations of Borrower or
such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or
the L/C Issuer different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer
agrees to notify Borrower and Agent promptly after any such setoff and application,
provided that the failure to give such notice shall not affect the validity of such setoff
and application.



     11.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such



91









 







unpaid principal, refunded to Borrower. In determining whether the interest contracted for,
charged, or received by Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee,
or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.



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



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



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



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



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



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



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



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



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



11.14 Governing Law; Jurisdiction; Etc.




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



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



     (c) WAIVER OF VENUE. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT



93









 







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



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



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



     11.16 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined)
and Agent (for itself and not on behalf of any Lender) hereby notifies Borrower that pursuant to
the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
Borrower, which information includes the name and address of Borrower and other information that
will allow such Lender or Agent, as applicable, to identify Borrower in accordance with the Act.



[Signature pages follow.]





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



	 	 	 	 	 	 	 
	 	 	COGDELL SPENCER
LP, as Borrower  
	 
	 	 	 	 	 	 
	 	 	By: CS Business Trust I, its General Partner
	 
	 	 	 	 	 	 
	 

	 	 	By: 	/s/ Frank C. Spencer	 	 
	 

	 	 	 	 	 	 
	 

	 	 	Name: Frank C. Spencer	 	 
	 

	 	 	Title: President	 	 






 









 





	 	 	 	 	 
	 

	COGDELL SPENCER INC., as a
Guaranter
	 	 
	 
	 	 	 	 
	 

	By:	/s/ Frank C. Spencer	 	 
	 

	 	 	 	 
	 

	Name: Frank C. Spencer	 	 
	 

	Title: Chief Executive Officer and President	 	 






 









 





	 	 	 	 	 
	 

	BANK OF AMERICA, N.A.,
	 	 
	 

	as Administrative Agent	 	 
	 
	 	 	 	 
	 

	By:	 /s/ Kimberly R.T. Propst	 	 
	 

	 	 	 	 
	 

	Name: Kimberly R.T. Propst	 	 
	 

	Title: Vice President	 	 






 









 





	 	 	 	 	 
	 

	BANK OF AMERICA, N.A.,
	 	 
	 

	as a Lender	 	 
	 
	 	 	 	 
	 

	By:	/s/ Kimberly R.T. Propst	 	 
	 

	 	 	 	 
	 

	Name: Kimberly R.T. Propst	 	 
	 

	Title: Vice President	 	 






 









 





	 	 	 	 	 
	 

	CITICORP NORTH AMERICA, INC.,
	 	 
	 

	as a Lender	 	 
	 
	 	 	 	 
	 

	By:	/s/ David Bouton	 	 
	 

	 	 	 	 
	 

	Name: David Bouton	 	 
	 

	Title: Vice President	 	 






 









 





	 	 	 	 	 
	 

	BRANCH BANKING & TRUST COMPANY,
	 	 
	 

	as a Lender	 	 
	 
	 	 	 	 
	 

	By:	/s/ Robert M Searson	 	 
	 

	 	 	 	 
	 

	Name: Robert M Searson	 	 
	 

	Title: Senior Vice President