Exhibit
10.1


 


FOURTH
AMENDED AND RESTATED


REVOLVING CREDIT AGREEMENT


 


DATED AS OF JANUARY 22, 2004


 


AMONG


 


DUKE REALTY LIMITED PARTNERSHIP


AS BORROWER,


 


DUKE REALTY CORPORATION


AS GENERAL PARTNER AND GUARANTOR,


 


BANK ONE, NA


AS ADMINISTRATIVE AGENT AND LENDER,


 


BANC ONE CAPITAL MARKETS, INC.


AS LEAD ARRANGER AND SOLE BOOK RUNNER,


 


PNC BANK, NATIONAL ASSOCIATION


AS SYNDICATION AGENT AND LENDER,


 


WACHOVIA BANK, NATIONAL ASSOCIATION


AS SYNDICATION AGENT AND LENDER,


 


WELLS FARGO BANK, NA


AS SYNDICATION AGENT AND LENDER,


 


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


 


AMSOUTH BANK AS CO-AGENT AND LENDER,


 


THE BANK OF NOVA SCOTIA, NEW YORK AGENCY AS
CO-AGENT AND LENDER,


 


SUNTRUST BANK AS CO-AGENT AND LENDER,


 


US BANK AS CO-AGENT AND LENDER,


 


UBS LOAN FINANCE LLC AS CO-AGENT AND LENDER,


 


AND


 


THE SEVERAL OTHER LENDERS

FROM TIME TO TIME PARTIES HERETO


 

















 


TABLE
OF CONTENTS


 


	
  ARTICLE I DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II THE CREDIT

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1.

  	
  COMMITMENT

  	
   

  
	
  2.2.

  	
  Final
  Principal Payment

  	
   

  
	
  2.3.

  	
  Loans

  	
   

  
	
  2.4.

  	
  Applicable
  Margins

  	
   

  
	
  2.5.

  	
  Facility Fee

  	
   

  
	
  2.6.

  	
  Other Fees

  	
   

  
	
  2.7.

  	
  Voluntary
  Reduction of Aggregate Commitment Amount

  	
   

  
	
  2.8.

  	
  Minimum Amount of Each
  Advance

  	
   

  
	
  2.9.

  	
  Optional Principal Payments

  	
   

  
	
  2.10.

  	
  Method
  of Selecting Types and Interest Periods for New Advances

  	
   

  
	
  2.11.

  	
  Conversion
  and Continuation of Outstanding Advances

  	
   

  
	
  2.12.

  	
  Changes
  in Interest Rate, Etc.

  	
   

  
	
  2.13.

  	
  Rates Applicable After
  Default

  	
   

  
	
  2.14.

  	
  Swing Line Loans

  	
   

  
	
  2.15.

  	
  Competitive
  Bid Loans

  	
   

  
	
  2.16.

  	
  Method of Payment

  	
   

  
	
  2.17.

  	
  Notes;
  Telephonic Notices

  	
   

  
	
  2.18.

  	
  Interest
  Payment Dates; Interest and Fee Basis

  	
   

  
	
  2.19.

  	
  Notification
  of Advances, Interest Rates and Prepayments

  	
   

  
	
  2.20.

  	
  Lending
  Installations

  	
   

  
	
  2.21.

  	
  Non-Receipt
  of Funds by the Administrative Agent

  	
   

  
	
  2.22.

  	
  Usury

  	
   

  
	
  2.23.

  	
  Applications
  of Moneys Received

  	
   

  
	
  2.24.

  	
  Extension
  of Facility Termination Date

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III THE
  LETTER OF CREDIT SUBFACILITY

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1.

  	
  Obligations
  to Issue

  	
   

  
	
  3.2.

  	
  Types and
  Amounts

  	
   

  
	
  3.3.

  	
  Conditions

  	
   

  
	
  3.4.

  	
  Procedure
  for Issuance of Facility Letters of Credit

  	
   

  
	
  3.5.

  	
  Administration;
  Reimbursement by Lenders

  	
   

  
	
  3.6.

  	
  Reimbursement by
  Borrower

  	
   

  
	
  3.7.

  	
  Obligations Absolute

  	
   

  
	
  3.8.

  	
  Actions of Issuing Bank

  	
   

  
	
  3.9.

  	
  Indemnification

  	
   

  
	
  3.10.

  	
  Lenders’ Indemnification

  	
   

  
	
  3.11.

  	
  Participation

  	
   

  
	
  3.12.

  	
  Compensation for
  Facility Letters of Credit

  	
   

  
	
  3.13.

  	
  Letter of
  Credit Collateral Account

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV CHANGE IN
  CIRCUMSTANCES

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1.

  	
  Yield
  Protection

  	
   

  
	
  4.2.

  	
  Changes in
  Capital Adequacy Regulations

  	
   

  
	
  4.3.

  	
  Availability of Types
  of Advances

  	
   

  
	
  4.4.

  	
  Funding Indemnification

  	
   

  
	
  4.5.

  	
  Taxes

  	
   

  
	
  4.6.

  	
  Lender Statements; Survival of
  Indemnity

  	
   

  
	
  4.7.

  	
  Replacement of Lenders
  under Certain Circumstances

  	
   

  
					



 


ii

















 


	
  ARTICLE V CONDITIONS
  PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1.

  	
  Effective Date

  	
   

  
	
  5.2.

  	
  Each
  Credit Extension

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1.

  	
  Existence

  	
   

  
	
  6.2.

  	
  Authorization and Validity

  	
   

  
	
  6.3.

  	
  No Conflict; Government
  Consent

  	
   

  
	
  6.4.

  	
  Financial
  Statements; Material Adverse Change

  	
   

  
	
  6.5.

  	
  Taxes

  	
   

  
	
  6.6.

  	
  Litigation
  and Guarantee Obligations

  	
   

  
	
  6.7.

  	
  Subsidiaries

  	
   

  
	
  6.8.

  	
  ERISA

  	
   

  
	
  6.9.

  	
  Accuracy
  of Information

  	
   

  
	
  6.10.

  	
  Margin Stock

  	
   

  
	
  6.11.

  	
  Material
  Agreements

  	
   

  
	
  6.12.

  	
  Compliance
  With Laws

  	
   

  
	
  6.13.

  	
  Ownership
  of Properties

  	
   

  
	
  6.14.

  	
  Investment
  Company Act

  	
   

  
	
  6.15.

  	
  Public Utility
  Holding Company Act

  	
   

  
	
  6.16.

  	
  Solvency

  	
   

  
	
  6.17.

  	
  Insurance

  	
   

  
	
  6.18.

  	
  REIT Status

  	
   

  
	
  6.19.

  	
  Environmental
  Matters

  	
   

  
	
  6.20.

  	
  Unencumbered
  Assets

  	
   

  
	
  6.21.

  	
  Reportable
  Transaction

  	
   

  
	
  6.22.

  	
  Plan Assets; Prohibited
  Transactions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1.

  	
  Financial
  Reporting

  	
   

  
	
  7.2.

  	
  Use of Proceeds

  	
   

  
	
  7.3.

  	
  Notice of
  Default

  	
   

  
	
  7.4.

  	
  Conduct
  of Business

  	
   

  
	
  7.5.

  	
  Taxes

  	
   

  
	
  7.6.

  	
  Insurance

  	
   

  
	
  7.7.

  	
  Compliance with Laws

  	
   

  
	
  7.8.

  	
  Maintenance of Properties

  	
   

  
	
  7.9.

  	
  Inspection

  	
   

  
	
  7.10.

  	
  Maintenance
  of Status

  	
   

  
	
  7.11.

  	
  Dividends

  	
   

  
	
  7.12.

  	
  Merger;
  Sale of Assets

  	
   

  
	
  7.13.

  	
  General
  Partner’s Ownership and Control of Borrower

  	
   

  
	
  7.14.

  	
  Sale and Leaseback

  	
   

  
	
  7.15.

  	
  Liens

  	
   

  
	
  7.16.

  	
  Affiliates

  	
   

  
	
  7.17.

  	
  Interest
  Rate Hedging

  	
   

  
	
  7.18.

  	
  Variable Interest
  Indebtedness

  	
   

  
	
  7.19.

  	
  Consolidated
  Net Worth

  	
   

  
	
  7.20.

  	
  Indebtedness and
  Cash Flow Covenants

  	
   

  
	
  7.21.

  	
  Environmental
  Matters

  	
   

  
	
  7.22.

  	
  Intentionally
  Omitted

  	
   

  
	
  7.23.

  	
  Borrower’s Partnership
  Agreement

  	
   

  
	
  7.24.

  	
  Intentionally
  Omitted

  	
   

  
	
  7.25.

  	
  Notice
  of Rating Change

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII
  DEFAULTS

  	
   

  
				



 


iii

















 


	
  ARTICLE IX
  ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1.

  	
  Acceleration

  	
   

  
	
  9.2.

  	
  Amendments

  	
   

  
	
  9.3.

  	
  Preservation
  of Rights

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X GENERAL
  PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  10.1.

  	
  Survival of Representations

  	
   

  
	
  10.2.

  	
  Governmental
  Regulation

  	
   

  
	
  10.3.

  	
  Headings

  	
   

  
	
  10.4.

  	
  Entire Agreement

  	
   

  
	
  10.5.

  	
  Several
  Obligations; Benefits of this Agreement

  	
   

  
	
  10.6.

  	
  Expenses; Indemnification

  	
   

  
	
  10.7.

  	
  Numbers
  of Documents

  	
   

  
	
  10.8.

  	
  Accounting

  	
   

  
	
  10.9.

  	
  Severability of Provisions

  	
   

  
	
  10.10.

  	
  Nonliability
  of Lenders

  	
   

  
	
  10.11.

  	
  Publicity

  	
   

  
	
  10.12.

  	
  CHOICE OF LAW

  	
   

  
	
  10.13.

  	
  CONSENT
  TO JURISDICTION

  	
   

  
	
  10.14.

  	
  WAIVER
  OF JURY TRIAL

  	
   

  
	
  10.15.

  	
  Agent
  Responsibilities

  	
   

  
	
  10.16.

  	
  USA PATRIOT ACT
  NOTIFICATION.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI
  THE ADMINISTRATIVE AGENT AND AGREEMENTS AMONG LENDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  11.1.

  	
  Appointment; Nature
  of Relationship

  	
   

  
	
  11.2.

  	
  Powers

  	
   

  
	
  11.3.

  	
  General
  Immunity

  	
   

  
	
  11.4.

  	
  No
  Responsibility for Loans, Recitals, etc.

  	
   

  
	
  11.5.

  	
  Action on
  Instructions of Lenders

  	
   

  
	
  11.6.

  	
  Employment of Agents
  and Counsel

  	
   

  
	
  11.7.

  	
  Reliance on Documents;
  Counsel

  	
   

  
	
  11.8.

  	
  Administrative
  Agent’s Reimbursement and Indemnification

  	
   

  
	
  11.9.

  	
  Rights as a
  Lender

  	
   

  
	
  11.10.

  	
  Lender
  Credit Decision

  	
   

  
	
  11.11.

  	
  Successor Administrative
  Agent

  	
   

  
	
  11.12.

  	
  Notice of
  Defaults

  	
   

  
	
  11.13.

  	
  Requests
  for Approval

  	
   

  
	
  11.14.

  	
  Copies of
  Documents

  	
   

  
	
  11.15.

  	
  Defaulting
  Lenders

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII
  SETOFF; RATABLE PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  12.1.

  	
  Setoff

  	
   

  
	
  12.2.

  	
  Ratable
  Payments

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII
  BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  13.1.

  	
   

  	
   

  
	
  13.2.

  	
  Participations

  	
   

  
	
  13.3.

  	
  Assignments

  	
   

  
	
  13.4.

  	
  Designation
  of Lender to Make Competitive Bid Loans

  	
   

  
	
  13.5.

  	
  Dissemination of
  Information

  	
   

  
	
  13.6.

  	
  Tax Treatment

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV
  NOTICES

  	
   

  



 


iv

















 


	
  14.1.

  	
  Notices;
  Effectiveness; Electronic Communication

  	
   

  
	
  14.2.

  	
  Change
  of Address, Etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV
  COUNTERPARTS

  	
   

  
	
   

  	
   

  	
   

  
	
  15.1.

  	
  Counterparts;
  Effectiveness.

  	
   

  
	
  15.2.

  	
  Electronic
  Execution of Assignments.

  	
   

  



 


 


Exhibit
A - Pricing Schedule


Exhibit
B1 - Form of Note


Exhibit
B2 - Form of Competitive Bid Note


Exhibit
C1 - Form of Competitive Bid Quote Request


Exhibit
C2 - Invitation Competitive Bid Quotes


Exhibit
C3 - Competitive Bid Quote


Exhibit
D - Form of Opinion


Exhibit
E - Loan/Credit Related Money Transfer Instruction


Exhibit
F - Compliance Certificate


Exhibit
H - Assignment and Assumption Agreement


Exhibit
I - Designation Agreement


Exhibit
J - Amendment to Fourth Amended and Restated Revolving Credit Agreement


Exhibit
K - Form of Subsidiary Guaranty


 


 


Schedule 1
- Subsidiaries and Other Investments


Schedule 2
- Indebtedness and Liens


Schedule 3
- Unencumbered Assets


 


v

















 


FOURTH
AMENDED AND RESTATED

REVOLVING CREDIT AGREEMENT


 


This Agreement, dated as
of January 22, 2004, is among Duke Realty Limited Partnership, an Indiana
limited partnership (the “Borrower”), Duke Realty Corporation, an
Indiana corporation (the “General Partner” and the “Guarantor”), Banc One
Capital Markets, Inc. (“BOCM”) (the “Arranger”), Bank One, NA (“Bank
One”) as a Lender and not individually, but as “Administrative Agent”,
PNC Bank, National Association (“PNC”) as a Lender and not individually, but as
Syndication Agent, Wachovia Bank, National Association (“Wachovia”) as a Lender
and not individually, but as Syndication Agent, Wells Fargo Bank, NA (“Wells
Fargo”) as a Lender and not individually, but as Syndication Agent, Bank of
America, N.A. (“Bank of America”) as a Lender and not individually, but as
Managing Agent, AmSouth Bank (“AmSouth”) as a Lender and not individually, but
as Co-Agent, The Bank of Nova Scotia, New York Agency (“Nova Scotia”) as a
Lender and not individually, but as Co-Agent, SunTrust Bank (“SunTrust”) as a
Lender and not individually, but as Co-Agent, US Bank (“US Bank”) as a Lender
and not individually, but as Co-Agent, UBS Loan Finance LLC (“UBS”) as a Lender
and not individually, but as Co-Agent, and the several banks, financial
institutions and other entities from time to time parties to this Agreement
(the “Lenders”).


 


RECITALS


 


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


 


B.                                     The
General Partner, the Borrower’s sole general partner, is listed on the New York
Stock Exchange and is qualified as a real estate investment trust.  The General Partner owns approximately 87%
of the total partnership units in the Borrower and various limited partners in
the Borrower own approximately 13% of such partnership units.


 


C.                                     The
Borrower, General Partner, the Administrative Agent, and certain of the Lenders
are parties to a Third Amended and Restated Revolving Credit Agreement dated as
of February 28, 2001 (as previously amended, the “Existing Credit
Agreement”) pursuant to which the Lenders that are parties thereto agreed to
make loans to the Borrower in the maximum aggregate amount of $500,000,000.


 


D.                                    The
Borrower and the General Partner have requested that the Lenders modify and
extend the Existing Credit Agreement as provided herein.


 


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


 

















 


ARTICLE I


 


DEFINITIONS


 


As used in this
Agreement:


 


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


 


“ABR Applicable Margin”
means, as of any date, the Applicable Margin in effect on such date with
respect to ABR Advances and ABR Loans.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


“Aggregate Commitment”
means the aggregate of the Commitments of all the Lenders, which initially
shall be $500,000,000, and which may be changed in accordance with
Section 2.1.


 


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


 


“Allocated Facility
Amount” means, at any time, the sum of all then outstanding Advances and the
then outstanding Facility Letter of Credit Obligations.


 


“Alternate Base Rate”
means, for any day, a rate of interest per annum equal to the higher of (i) the
Prime Rate for such day and (ii) the sum of the Federal Funds Effective Rate
for such day plus 1/2% per annum.


 


“Applicable Margin” means
the applicable margin set forth in the table in Exhibit A used in
calculating the interest rate applicable to the various Types of Advances which
shall vary from time to time in accordance with Borrower’s and Guarantor’s long
term unsecured debt ratings.


 


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


 


“Arranger” means BOCM,
and its successors, in its capacity as Lead Arranger and Sole Book Runner.


 


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


 


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


 


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


 


“Bank One” means Bank
One, NA, a national banking association having its principal office in Chicago,
Illinois, in its individual capacity, and its successors.


 


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


 


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


 


“Borrowing Notice” is
defined in Section 2.10.


 


3

















 


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


 


“Capital Expenditure
Reserve Amount” means, for any quarter, the greater of (i) 6% of EBITDA for
such quarter or (ii) the average quarterly capital expenditures, leasing
commissions and tenant improvement costs except for leasing commissions and
tenant improvement costs associated with the initial leasing of space not
previously occupied (i.e., first generation space) for the four most
recently completed quarters.


 


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


 


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


 


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


 


“Cash Equivalents” means,
as of any date, (i) securities issued or directly and fully guaranteed or
insured by the United States Government or any agency or instrumentality
thereof having maturities of not more than one year from such date, (ii) time
deposits and certificates of deposit having maturities of not more than one
year from such date and issued by any domestic commercial bank having (A)
senior long-term unsecured debt rated at least A or the equivalent thereof by
S&P, A or the equivalent thereof by Fitch or A2 or the equivalent thereof
by Moody’s and (B) capital and surplus in excess of $500,000,000, and
(iii) commercial paper rated at least A-2 or the equivalent thereof by
S&P, at least A-2 or the equivalent thereof by Fitch or P-2 or the
equivalent thereof by Moody’s and in any such case maturing within 360 days
from such date.


 


“Closing Date” means the
date of this Agreement.


 


“Co-Agents” means the
Co-Agents identified in the preamble paragraph to this Agreement.


 


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


 


“Commitment” means, for
each Lender, the obligation of such Lender to make Loans to, and participate in
Facility Letters of Credit issued upon the application of, the Borrower in an
aggregate amount not exceeding the amount set forth opposite its signature
below or as set forth 


 


4

















 


in any Notice of Assignment relating to any assignment that has become
effective pursuant to Section 13.3.2, as such amount may be
modified from time to time pursuant to the terms hereof.


 


“Competitive Bid
Borrowing Notice” is defined in Section 2.15(f).


 


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


 


“Competitive Bid Loan” is
a Loan made pursuant to Section 2.15 hereof.


 


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


 


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


 


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


 


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


 


“Condemnation” is defined
in Section 8.9.


 


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


 


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


 


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


 


5

















 


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


 


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


 


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


 


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


 


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


 


“Credit Extension” means
the making of an Advance or the issuance of a Facility Letter of Credit.


 


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


 


“Default” means a Default
described in Article VIII.


 


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


 


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


 


“Designating Lender” is
defined in Section 13.4.


 


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


 


6

















 


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


 


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


 


“Equity Value” means Net
Operating Income capitalized at a 9.0% rate less any Indebtedness or, in the
case of assets acquired after the closing of the Facility, the purchase price
less any Indebtedness attributable to such asset.


 


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


 


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


 


“Extension Fee” means a
fee equal to 0.25% of (a) the Aggregate Commitment at the time of the
Extension Request minus (b) the sum of the Commitments of those Lenders
who do not consent to the Extension Request.


 


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


 


“Facility Fee” is defined
in Section 2.5.


 


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


 


“Facility Letter of
Credit Obligations” means, as at the time of determination thereof, all
liabilities, whether actual or contingent, of the Borrower with respect to
Facility Letters of Credit, including the sum of (a) the Reimbursement
Obligations and (b) the aggregate undrawn face amount of the then
outstanding Facility Letters of Credit.


 


“Facility Termination
Date” means
                    ,
2007 [Three
years from Closing Date] or any later date as may be specified as
the Facility Termination Date in accordance with, 


 


7

















 


and subject to the
conditions contained in, Section 2.24 or any earlier date on which
the Aggregate Commitment is reduced to zero or otherwise terminated pursuant to
the terms hereof.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Guarantee Obligation”
means, as to any Person (the “guaranteeing person”), any obligation
(determined without duplication) of (a) the guaranteeing person or
(b) another Person (including, without limitation, any bank under any
Letter of Credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counter-indemnity or similar 


 


8

















 


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


 


(a)                                  The
Guarantee provided by the Borrower and/or General Partner is limited to an
amount not greater than 50% of the value of the properties securing the
Investment Affiliate Debt (computed by capitalizing the Property Operating
Income from such properties at a rate of 9.0%), and


 


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


 


(c)                                  The
amount of the Investment Affiliate Debt that is being guaranteed (together with
any other Investment Affiliate Debt of such Investment Affiliate that is
secured by the same collateral that secures the Investment Affiliate Debt being
guarantied) is not more than 50% of the value of the properties securing such
Investment Affiliate Debt (computed by capitalizing the Property Operating
Income from such properties at a rate of 9.0%), and,


 


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


 


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


 


9

















 


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


 


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


 


“Indemnified Parties”
means Arranger and the Administrative Agent.


 


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


 


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


 


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


 


10

















 


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


 


“Invitation for
Competitive Bid Quotes” means a written notice to the Lenders from the
Administrative Agent in the form attached as Exhibit C-2 for
Competitive Bid Loans made pursuant to Section 2.15.


 


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


 


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


 


“Lenders” means the
lending institutions listed on the signature pages of this Agreement, their
respective successors and assigns and any other lending institutions that
subsequently become parties to this Agreement pursuant to Section 13.3 and
except when used in reference to an obligation of the Lenders which is based on
their Percentage of the Aggregate Commitment, each Designated Lender.


 


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


 


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


 


“Letter of Credit
Collateral Account” is defined in Section 3.13.


 


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


 


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


 


“LIBOR Base Rate” means,
with respect to a LIBOR Advance for the relevant LIBOR Interest Period, the
applicable British Bankers’ Association London interbank offered rate for
deposits in U.S. dollars as reported by any generally recognized financial
information service as 


 


11

















 


of 11:00 a.m. (London
time) two Business Days prior to the first day of the applicable interest
period, and having a maturity equal to such interest period.


 


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


 


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


 


“LIBOR Rate” means, with
respect to a LIBOR Advance for the relevant LIBOR Interest Period, the sum of
(i) the quotient of (a) the LIBOR Base Rate applicable to such LIBOR Interest
Period, divided by (b) one minus the Reserve Requirement (expressed as a decimal)
applicable to such LIBOR Interest Period, plus (ii) the LIBOR Applicable
Margin in effect on the day that such LIBOR Base Rate was determined.  The LIBOR Rate shall be rounded to the next
higher multiple of 1/100 of 1% if the rate is not a multiple of 1/16 of 1% or
of 1/100 of 1%.


 


“Lien” means any lien
(statutory or other), mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, the interest of a vendor or lessor under any conditional sale,
Capitalized Lease or other title retention agreement).


 


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


 


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


 


“Managing Agent” means
Bank of America, N.A.


 


“Market Capitalization”
means (a) Total Property Operating Income capitalized at 9.0%, plus
(b) ”earnings from service operations” capitalized at 20%, plus
(c) 50% of Assets Under Development (75% for a property that has signed
leases for 75% or more of the square feet of the space), plus (d) the
amount of any cash equivalents, excluding tenant security and other restricted
deposits, plus (e) the lower of book value or market value of land not
under development.


 


“Material Adverse Effect”
means a material adverse effect on (i) the business, Property, condition
(financial or otherwise), results of operations, or prospects of the General
Partner, the Borrower and their Subsidiaries taken as a whole, (ii) the ability
of the General Partner or the


 


12

















 


Borrower to perform their
obligations under the Loan Documents, or (iii) the validity or enforceability
of any of the Loan Documents or the rights or remedies of the Administrative
Agent or the Lenders thereunder.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Notice of Assignment” is
defined in Section 13.3.2.


 


13

















 


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


 


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


 


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


 


“Participants” is defined
in Section 13.2.1.


 


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


 


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


 


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


 


“Permitted Liens” are
defined in Section 7.15.


 


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


 


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


 


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


 


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


 


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


 


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


 


14

















 


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


 


“Purchasers” is defined
in Section 13.3.1.


 


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


 


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


 


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


 


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


 


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


 


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


 


15

















 


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


 


“Reserve Requirement”
means, with respect to a LIBOR Interest Period, the maximum aggregate reserve
requirement on Eurocurrency liabilities.


 


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


 


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


 


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


 


“Subsidiary Guarantor”
means a Subsidiary of Borrower or General Partner which executes and delivers a
Subsidiary Guaranty.


 


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


 


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


 


“Swing Line Lender” shall
mean Administrative Agent, in its capacity as a Lender.


 


“Swing Line Loans” means
loans of up to $40,000,000 made by the Swing Line Lender in accordance with Section 2.14
hereof.


 


“Syndication Agent” means
PNC Bank, N.A., Wachovia Bank, National Association, and Wells Fargo Bank, N.A.


 


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


 


16

















 


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


 


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


 


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


 


“Transferee” is defined
in Section 13.5.


 


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


 


“Unencumbered Asset”
means, with respect to any Project which is in service, at any date of
determination, the circumstance that such asset on such date (a) is not
subject to any Liens or claims (including restrictions on transferability or
assignability) of any kind (including any such Lien, claim or restriction
imposed by the organizational documents of the Borrower or any Subsidiary, but
excluding Permitted Liens other than those identified in Sections 7.15(v)
and (vi)), (b) is not subject to any agreement (including
(i) any agreement governing Indebtedness incurred in order to finance or
refinance the acquisition of such asset, and (ii) if applicable, the
organizational documents of the Borrower or any Subsidiary) which prohibits or
limits the ability of the General Partner, the Borrower or any of their
Subsidiaries to create, incur, assume or suffer to exist any Lien upon any assets
or Capital Stock of the General Partner, the Borrower or any of their
Subsidiaries, and (c) is not subject to any agreement (including any
agreement governing Indebtedness incurred in order to finance or refinance the
acquisition of such asset) which entitles any Person to the benefit of any Lien
(but excluding Permitted Liens other than those identified in Sections 7.15(v)
and (vi)) on any assets or Capital Stock of the General Partner, the
Borrower or any of their Subsidiaries, or would entitle any Person to the
benefit of any Lien (but excluding Permitted Liens other than those identified
in Sections 7.15(v) and (vi)) on such assets or Capital
Stock upon the occurrence of any contingency (including, without limitation,
pursuant to an “equal and ratable” clause), and (d) is 100% owned in fee simple
by the Borrower or a Subsidiary Guarantor. 
For the purposes of this Agreement, any Property of a Subsidiary shall
not be deemed to be unencumbered unless both (i) such Property and
(ii) all Capital Stock of such Subsidiary held by the General Partner or
the Borrower is unencumbered.


 


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


 


17

















 


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


 


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


 


“Value of Unencumbered
Assets” means, as of the end of a quarter, the value of all Unencumbered Assets
as of such date (other than those that are not approved by the Required
Lenders), determined by capitalizing the Property Operating Income for such
quarter (as annualized) from such Unencumbered Assets at a rate of 9.0%.  The Required Lenders shall have the right to
approve assets which are included in the determination of the Value of Unencumbered
Assets.  A Project may be approved by
the Required Lenders as an Unencumbered Asset even if it is subject to an
agreement which requires the Borrower or one of its Subsidiaries to indemnify a
prior owner of such Project for tax liability incurred by such owner in
connection with a sale of such Project by Borrower in a taxable transaction
prior to the expiration of specified time period, so long as in determining
Value of Unencumbered Assets the Borrower’s good faith estimate of such
potential indemnification liability is deducted from the value of such
Project.  The substitution or addition
of new assets shall also be subject to the approval of the Required
Lenders.  If an approved asset is
acquired during a quarter then Borrower shall be entitled to include pro forma
Property Operating Income from such property for the entire quarter in the
foregoing calculation.  If an asset is
not owned as of the last day of a quarter then no value shall be included based
on capitalizing Property Operating Income from such asset.


 


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


 


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


 


ARTICLE II


 


THE
CREDIT


 


2.1.                              Commitment. 
From and including the date of this Agreement and prior to the Facility
Termination Date, each Lender severally agrees, subject to the terms and
conditions set forth in this Agreement, to make Loans to the Borrower from time
to time prior to the Facility Termination Date, provided that the making
of any such Loan will not cause the total of the outstanding principal balance
of all Loans (including Swing Line Loans and Competitive Bid 


 


18

















 


Loans) and the Facility
Letter of Credit Obligations to exceed the Aggregate Commitment.  Except for Swing Line Loans and Competitive
Bid Loans each Lender shall fund its Percentage of each Advance and no Lender
will be required to fund any amount, which when aggregated with such Lender’s
Percentage of: (i) all other Advances (other than
Competitive Bid Loans) then outstanding, (ii)
Facility Letter of Credit Obligations, and (iii) all
Swing Line Loans, would exceed such Lender’s Commitment.  Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow at any time prior to the Facility
Termination Date.  The Commitments of
each Lender to lend hereunder shall expire on the Facility Termination
Date.  The Aggregate Commitment may be
increased from time to time by the addition of a new Lender or the increase of
the Commitment of an existing Lender with the consent of only the Borrower, the
Administrative Agent, and the new or existing Lender providing such additional
Commitment so long as the Aggregate Commitment does not exceed $700,000,000
less any voluntary reductions pursuant to Section 2.7.  Such increases shall be evidenced by the
execution and delivery of an Amendment Regarding Increase in the form of
Exhibit J attached hereto by the Borrower, the Administrative Agent and
the new Lender or existing Lender providing such additional Commitment, a copy
of which shall be forwarded to each Lender by the Administrative Agent promptly
after execution thereof.  On the
effective date of each such increase in the Aggregate Commitment, the Borrower
and the Administrative Agent shall cause the new or existing Lenders providing
such increase to hold its or their Percentage of all ratable Advances
outstanding at the close of business on such day, by either funding more than
its or their Percentage of new ratable Advances made on such date or purchasing
shares of outstanding ratable Loans held by the other Lenders or a combination
thereof.  The Lenders agree to cooperate
in any required sale and purchase of outstanding ratable Advances to achieve such
result.  Borrower agrees to pay all fees
associated with the increase in the Aggregate Commitment including any amounts
due under Section 4.4 in connection with any reallocation of LIBOR
Advances.  In no event will such new or
existing Lenders providing the increase be required to fund or purchase a
portion of any Competitive Bid Loan or Swingline Loan to comply with this
Section on such date.  No Lender
shall be required to increase its Commitment in connection with the increase in
the Aggregate Commitment herein described.


 


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


 


2.3.                              Loans.  Each
Advance hereunder shall consist of Loans made from the several Lenders ratably
in proportion to the ratio that their respective Commitments bear to the
Aggregate Commitment except for Swing Line Loans which shall be made by the
Swing Line Lender in accordance with Section 2.14 and Competitive
Bid Loans made in accordance with Section 2.15.  The Advances may be ABR Advances or LIBOR
Advances, or a combination thereof, selected by the Borrower in accordance with
Sections 2.10 and 2.11.


 


2.4.                              Applicable Margins.   The ABR Applicable Margin and the LIBOR Applicable Margin to be
used in calculating the interest rate applicable to different Types of Advances
shall vary from time to time in accordance with the long-term unsecured debt
ratings from Moody’s, and Fitch of the General Partner and the Borrower.  In the event the General Partner and the
Borrower have different ratings, the rating of the higher rated entity shall be
used.  In the event the rating agencies
are split on the rating for the higher rated entity, the lower rating for such
entity shall be deemed to be the applicable rating (e.g., if the higher rated
entity’s Moody’s debt 


 


19

















 


rating is Baa1, and its
Fitch’s rating is BBB, then the Applicable Margins shall be computed based on
the Fitch rating), and the Applicable Margins shall be adjusted effective on
the next Business Day following any change in the higher rated entity’s Moody’s
debt rating, and/or Fitch’s debt rating, as the case may be.  The applicable debt ratings and the
Applicable Margins are set forth in the table attached as Exhibit A.  In the event that Fitch or Moody’s shall
discontinue their ratings of the REIT industry, the General Partner or the
Borrower, a mutually agreeable substitute rating agency (or two mutually
agreeable substitute agencies if both existing rating agencies discontinue such
ratings) shall be selected by the Required Lenders and the Borrower.  If the Required Lenders and the Borrower
cannot agree on a substitute rating agency or substitute rating agencies within
thirty (30) days after such discontinuance, or if Fitch and Moody’s shall
discontinue their ratings of the REIT industry, the Borrower, or the General
Partner, the Applicable Margin to be used for the calculation of interest on
Advances hereunder shall be the highest Applicable Margin for each Type.


 


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


 


If a rating agency
upgrade results in a decrease in the ABR Applicable Margin, LIBOR Applicable
Margin or Facility Fee Rate and if such upgrade is reversed and the affected
Applicable Margin is restored within ninety (90) days thereafter, Borrower
shall be required to pay an amount to the Lenders equal to the interest
differential on the Advances and the differential on the Facility Fees during
such period of upgrade.


 


2.5.                              Facility Fee. 
The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a facility fee (the “Facility Fee”) calculated at a per annum
percentage (“Facility Fee Rate”) of the total Aggregate Commitment.  The Facility Fee Rate shall vary from time
to time based on the Borrower’s or General Partner’s long term unsecured debt
rating as set forth in the table attached hereto as Exhibit A, and
determined in a manner consistent with the provisions of Section 2.4
relating to Applicable Margins, and the Facility Fee shall be payable quarterly
in arrears on the last day of each calendar quarter hereafter beginning
March 31, 2004 and on the Facility Termination Date.


 


2.6.                              Other Fees. 
The Borrower will pay to Administrative Agent for the benefit of the
Lenders on or before the date hereof the fees specified in that certain Fee
Letter dated October 16, 2003.


 


2.7.                              Voluntary Reduction of Aggregate
Commitment Amount.  Upon at least
fifteen (15) days prior irrevocable written notice (or telephone notice
promptly confirmed in writing) to the Administrative Agent, Borrower shall have
the right, without premium or penalty, to terminate permanently the Aggregate
Commitment in whole or in part provided that (a) Borrower may not reduce the
Aggregate Commitment below the Allocated Facility Amount at 


 


20

















 


the time of such
requested reduction, and (b) any such partial termination shall be in the
minimum aggregate amount of Five Million Dollars ($5,000,000.00) or any
integral multiple of Five Million Dollars ($5,000,000.00) in excess
thereof.  Any partial termination of the
Aggregate Commitment shall be applied pro rata to each Lender’s Commitment.


 


2.8.                              Minimum Amount of Each Advance.  Each LIBOR Advance shall be in the minimum
amount of $2,000,000 (and in multiples of $1,000,000 if in excess thereof), and
each ABR Advance shall be in the minimum amount of $1,000,000 (and in multiples
of $500,000 if in excess thereof), provided, however, that any ABR Advance may
be in the amount of the unused Aggregate Commitment.


 


2.9.                              Optional Principal Payments.  The Borrower may from time to time pay,
without penalty or premium, all or any part of outstanding ABR Advances upon
two Business Days’ prior notice to the Administrative Agent.  The Borrower may from time to time pay a
LIBOR Advance, provided a LIBOR Advance may not be paid prior to the last day
of the applicable Interest Period unless accompanied by any amount due pursuant
to Section 4.4.  A Competitive Bid
Loan may not be paid prior to its maturity, provided, however, that if a
Competitive Bid Loan becomes due prior to its stated maturity due to acceleration
of the Obligations, then payment of such Competitive Bid Loan shall be
accompanied by any amount due pursuant to Section 4.4.


 


2.10.                        Method of Selecting Types and
Interest Periods for New Advances. 
The Borrower shall select the Type of Advance and, in the case of each
LIBOR Advance, the Interest Period applicable to each Advance from time to
time.  The Borrower shall give the
Administrative Agent irrevocable notice (a “Borrowing Notice”) (i) not
later than 10:00 a.m. Chicago time, at least one (1) Business Day before
the Borrowing Date of each ABR Advance, (ii) not later than 10:00 a.m.
Chicago time, at least three (3) Business Days before the Borrowing Date for
each LIBOR Advance, and (iii) not later than 11:00 a.m. Chicago time
on the Borrowing Date for each Swing Line Loan, specifying:


 


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


 


(b)                                 the
aggregate amount of such Advance,


 


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


 


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


 


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


 


No Interest Period may
end after the Facility Termination Date and, unless all of the Lenders
otherwise agree in writing, in no event may there be more than seven (7)
different 


 


21

















 


Interest Periods for
LIBOR Advances (other than Competitive Bid Loans) outstanding at any one time.


 


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


 


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


 


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


 


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


 


2.12.                        Changes in Interest Rate, Etc.  Each ABR Advance shall bear interest on the
outstanding principal amount thereof, for each day from and including the date
such Advance is made or is converted from a LIBOR Advance into a ABR Advance
pursuant to Section 2.11 to but excluding the date it becomes due
or is converted into a LIBOR Advance pursuant to Section 2.11
hereof, at a rate per annum equal to the ABR Rate for such day.  Changes in the rate of interest on that
portion of any Advance maintained as a ABR Advance will take effect
simultaneously with each change in the Alternate Base Rate.  Each LIBOR Advance shall bear interest from
and including the first day of the Interest Period applicable thereto to (but
not including) the last day of such Interest Period at the interest rate
determined as applicable to such LIBOR Advance.


 


2.13.                        Rates Applicable After Default.  Notwithstanding anything to the contrary
contained in Section 2.10, 2.11 or 2.12, during the
continuance of a Default or Unmatured Default the Required Lenders may, at
their option, by notice to the Borrower (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of Section 9.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that no 


 


22

















 


Advance may be made as,
converted into or continued beyond its current term as a LIBOR Advance.  During the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrower (which notice
may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 9.2 requiring unanimous consent of the Lenders
to changes in interest rates), declare that (i) each LIBOR Advance shall bear
interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per annum and (ii) each
ABR Advance shall bear interest at a rate per annum equal to the ABR Rate
otherwise applicable to the ABR Advance plus 2% per annum and the Facility
Letter of Credit Fee shall increase by 2% per annum; provided that such rates
and increase in the Facility Letter of Credit Fee shall become applicable
automatically without notice to the Borrower or an election or action by the
Administrative Agent or any Lender if a Default occurs under Section 8.7
or Section 8.8, or a Default occurs relating to the payment of
principal or interest, unless waived by the Required Lenders.


 


2.14.                        Swing Line Loans.  In addition to the other options available to Borrower hereunder,
up to $40,000,000 of the Swing Line Lender’s Commitment shall be available for
Swing Line Loans subject to the following terms and conditions.  Swing Line Loans shall be made available for
same day borrowings provided that notice is given in accordance with Section 2.10
hereof.  All Swing Line Loans shall bear
interest at the ABR Rate.  In no event
shall the Swing Line Lender be required to fund a Swing Line Loan if it would
increase the total aggregate outstanding Loans by Swing Line Lender hereunder
plus its Percentage of Facility Letter of Credit Obligations to an amount in
excess of its Commitment or if it would cause the Allocated Facility Amount to
exceed the Aggregate Commitment.  Each
Swing Line Loan shall be paid in full by the Borrower on or before the fifth
(5th) day after the Borrowing Date for such Swing Line Loan.  In addition, the Swing Line Lender (i) may
at any time in its sole discretion with respect to any outstanding Swing Line
Loan, or (ii) shall on the fifth (5th) day after the Borrowing Date of any
Swing Line Loan, require each Lender (including the Swing Line Lender) to make
a Loan in the amount of such Lender’s Percentage of such Swing Line Loan
(including, without limitation, any interest accrued and unpaid thereon), for
the purpose of repaying such Swing Line Loan. 
Not later than noon (Chicago time) on the date of any notice received
pursuant to this Section 2.14 (provided such notice is given by 10:00 A.M.
Chicago time), each Lender shall make available its required Loan, in funds
immediately available in Chicago to the Administrative Agent at its address
specified pursuant to Article XIV. 
Revolving Loans made pursuant to this Section 2.14 shall initially
be ABR Loans and thereafter may be continued as ABR Loans or converted into
LIBOR Loans in the manner provided in Section 2.11 and subject to the
other conditions and limitations set forth in this Article II.  Unless a Lender shall have notified the
Swing Line Lender, prior to its making any Swing Line Loan, that any applicable
condition precedent set forth in Sections 5.1 or 5.2 had not then been
satisfied, such Lender’s obligation to make Loans pursuant to this
Section 2.14 to repay Swing Line Loans shall be unconditional, continuing,
irrevocable and absolute and shall not be affected by any circumstances,
including, without limitation, (a) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Administrative
Agent, the Swing Line Lender or any other Person, (b) the occurrence or
continuance of a Default or Unmatured Default, (c) any adverse change in the
condition (financial or otherwise) of the Borrower, or (d) any other
circumstances, happening or event whatsoever. 
In the event that any Lender fails to make payment to the Administrative
Agent of any amount due under this Section 2.14, the Administrative Agent
shall be entitled to receive, retain and apply against such obligation the


 


23

















 


principal and
interest otherwise payable to such Lender hereunder until the Administrative
Agent receives such payment from such Lender or such obligation is otherwise
fully satisfied.  In addition to the
foregoing, if for any reason any Lender fails to make payment to the
Administrative Agent of any amount due under this Section 2.14, such
Lender shall be deemed, at the option of the Administrative Agent, to have
unconditionally and irrevocably purchased from the Swing Line Lender, without
recourse or warranty, an undivided interest and participation in the applicable
Swing Line Loan in the amount of such payment not made by such Lender, and such
interest and participation may be recovered from such Lender together with
interest thereon at the Federal Funds Effective Rate for each day during the
period commencing on the date of demand and ending on the date such amount is
received.  Swing Line Loans may be
outstanding for a maximum of ten (10) days during any calendar month.  On the Facility Termination Date, the
Borrower shall repay in full the outstanding principal balance of the Swing
Line Loans.


 


2.15.                        Competitive Bid Loans.


 


(a)                                  Competitive
Bid Option.  In addition to ratable
Advances pursuant to Section 2.3, but subject to the terms and conditions
of this Agreement (including, without limitation the limitation set forth in
Section 2.1 as to the maximum amount of all Loans not exceeding the
Aggregate Commitment), the Borrower may, as set forth in this Section 2.15,
request the Lenders, prior to the Facility Termination Date, to make offers to
make Competitive Bid Loans to the Borrower. 
Each Lender may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section 2.15.  Competitive Bid Loans shall be evidenced by the Competitive Bid
Notes.


 


(b)                                 Competitive
Bid Quote Request.  When the
Borrower wishes to request offers to make Competitive Bid Loans under this
Section 2.15, it shall transmit to the Administrative Agent by telecopy a
Competitive Bid Quote Request substantially in the form of Exhibit C-1
hereto so as to be received no later than (i) 10:00 a.m. (Chicago time) at
least five Business Days prior to the Borrowing Date proposed therein, in the
case of a request for a Competitive LIBOR Margin or (ii) 9:00 a.m.
(Chicago time) at least one Business Day prior to the Borrowing Date proposed
therein, in the case of a request for an Absolute Rate specifying:


 


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


 


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


 


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


 


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


 


The Borrower may
request offers to make Competitive Bid Loans for more than one (but not more
than five) Interest Periods in a single Competitive Bid Quote Request.  No Competitive Bid


 


24

















 


Quote Request
shall be given within five Business Days (or such other number of days as the
Borrower and the Administrative Agent may agree) of any other Competitive Bid
Quote Request.  A Competitive Bid Quote
Request that does not conform substantially to the form of Exhibit C-1 hereto
shall be rejected, and the Administrative Agent shall promptly notify the
Borrower of such rejection by telecopy.


 


(c)                                  Invitation
for Competitive Bid Quotes. 
Promptly and in any event before the close of business on the same
Business Day of receipt of a Competitive Bid Quote Request that is not rejected
pursuant to Section 2.15(b), the Administrative Agent shall send to each
of the Lenders by telecopy an Invitation for Competitive Bid Quotes
substantially in the form of Exhibit C-2 hereto, which shall constitute an
invitation by the Borrower to each Lender to submit Competitive Bid Quotes
offering to make the Competitive Bid Loans to which such Competitive Bid Quote
Request relates in accordance with this Section 2.15.


 


(d)                                 Submission
and Contents of Competitive Bid Quotes.


 


(i)                                     Each
Lender may, in its sole discretion, submit a Competitive Bid Quote containing
an offer or offers to make Competitive Bid Loans in response to any Invitation
for Competitive Bid Quotes.  Each
Competitive Bid Quote must comply with the requirements of this
Section 2.15(d) and must be submitted to the Administrative Agent by telex
or telecopy at its offices not later than (a) 9:00 a.m. (Chicago time) at
least three Business Days prior to the proposed Borrowing Date, in the case of
a request for a Competitive LIBOR Margin or (b) 9:00 a.m. (Chicago time)
on the proposed Borrowing Date, in the case of a request for an Absolute Rate
(or, in either case upon reasonable prior notice to the Lenders, such other
time and rate as the Borrower and the Administrative Agent may agree); provided
that Competitive Bid Quotes submitted by the Administrative Agent may only be
submitted if the Administrative Agent notifies the Borrower of the terms of the
Offer or Offers contained therein no later than 60 minutes prior to the latest
time at which the relevant Competitive Bid Quotes must be submitted by the
other Lenders.  Subject to the
Borrower’s compliance with all other conditions to disbursement herein, any
Competitive Bid Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the Borrower.


 


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


 


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


 


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


 


25

















 


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


 


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


 


(5)                                  the
identity of the quoting Lender, provided that such Competitive Bid Loan may be
funded by such Lender’s Designated Lender as provided in Section 2.15(j),
regardless of whether that is specified in the Competitive Bid Quote.


 


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


 


(1)                                  is
not substantially in the form of Exhibit C-3 hereto or does not specify
all of the information required by Section 2.15(d)(ii),


 


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


 


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


 


(4)                                  arrives
after the time set forth in Section 2.15(d)(i).


 


If any Competitive
Bid Quote shall be rejected pursuant to this Section 2.15(d)(iii), then
the Administrative Agent shall notify the relevant Lender of such rejection as
soon as practical.


 


(e)                                  Notice
to Borrower.  The Administrative
Agent shall promptly notify the Borrower of the terms (i) of any
Competitive Bid Quote submitted by a Lender that is in accordance with
Section 2.15(d) and (ii) of any Competitive Bid Quote that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid Quote
submitted by such Lender with respect to the same Competitive Bid Quote
Request.  Any such subsequent
Competitive Bid Quote shall be disregarded by the Administrative Agent unless
such subsequent Competitive Bid Quote specifically states that it is submitted
solely to correct a manifest error in such former Competitive Bid Quote.  The Administrative Agent’s notice to the
Borrower shall specify the aggregate principal amount of Competitive Bid Loans
for which offers have been received for each Interest Period specified in the
related Competitive Bid Quote Request and the respective principal amounts and
Competitive LIBOR Margins or Absolute Rate, as the case may be, so offered.


 


(f)                                    Acceptance
and Notice by Borrower.  Not later
than (i) 10:00 a.m. (Chicago time) at least three Business Days prior to
the proposed Borrowing Date in the case of a request for a Competitive LIBOR
Margin or (ii) 10:00 a.m. (Chicago time) on the proposed Borrowing Date,
in the case of a request for an Absolute Rate (or, in either case upon
reasonable prior notice to the Lenders, such other time and date as the
Borrower and the Administrative Agent may agree), the Borrower shall notify the
Administrative Agent of its acceptance or rejection of the


 


26

















 


offers so notified to it pursuant to Section 2.15(e); provided,
however, that the failure by the Borrower to give such notice to the
Administrative Agent shall be deemed to be a rejection of all such offers.  In the case of acceptance, such notice (a
“Competitive Bid Borrowing Notice”) shall specify the aggregate principal
amount of offers for each Interest Period that are accepted.  The Borrower may accept any Competitive Bid
Quote in whole or in part (subject to the terms of Section 2.15(d)(iii));
provided that:


 


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


 


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


 


(iii)                               the
Borrower may not accept any offer that is described in
Section 2.15(d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.


 


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


 


(h)                                 Administration
Fee.  The Borrower hereby agrees to
pay to the Administrative Agent an administration fee of $2,500 per each
Competitive Bid Quote Request transmitted by the Borrower to the Administrative
Agent pursuant to Section 2.15(b). 
Such administration fee shall be payable monthly in arrears on the first
Business Day of each month and on the Maturity Date (or such earlier date on
which the Aggregate Commitment shall terminate or be cancelled) for any period
then ending for which such fee, if any, shall not have been theretofore paid.


 


(i)                                     Other
Terms.  Any Competitive Bid Loan
shall not reduce the Commitment of the Lender making such Competitive Bid Loan,
and each such Lender shall continue to be obligated to fund its full Percentage
of all pro rata Advances under the Facility. 
In no event can the aggregate amount of all Competitive Bid Loans at any
time exceed fifty percent (50%) of the then Aggregate Commitment.  Competitive Bid Loans shall not be prepaid
prior to the end of the applicable Interest Period.  Competitive Bid Loans may not be continued and, if not repaid at
the end of the Interest Period applicable thereto, shall (subject to the
conditions set forth in this


 


27

















 


Agreement) be replaced by new Competitive Bid Loans made in accordance
with this Section 2.15 or by ratable Advances in accordance with
Section 2.11.


 


(j)                                     Designated
Lenders.  A Lender may designate its
Designated Lender to fund a Competitive Bid Loan on its behalf as described in
Section 2.15(d)(ii)(5).  Any
Designated Lender which funds a Competitive Bid Loan shall on and after the
time of such funding become the obligee under such Competitive Bid Loan and be
entitled to receive payment thereof when due. 
No Lender shall be relieved of its obligation to fund a Competitive Bid
Loan, and no Designated Lender shall assume such obligation, prior to the time
such Competitive Bid Loan is funded.


 


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


 


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


 


28

















 


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


 


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


 


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


 


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


 


29

















 


each day during the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.


 


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


 


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


 


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


 


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


 


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


 


(iv)                                                                              (a) in
case the entire unpaid principal of the Loan shall not have become due and
payable, the whole amount received as interest and Facility Letter of Credit
Fee then due to the Lenders (other than a Defaulting Lender) as their
respective Percentages appear (except to the extent there are Swing Line Loans or
Competitive Bid Loans outstanding in which event the full amount of interest
attributable to the Swing Line Loans and Competitive Bid Loans shall be payable
to the Swing Line Lender and Competitive Bid Lenders, respectively, unless the
Swing Line Lender or Competitive Bid


 


30

















 


Lender shall be a Defaulting Lender), together with the whole amount,
if any, received as principal first to the Swing Line Lender, unless the Swing
Line Lender shall be a Defaulting Lender, to repay any outstanding Swing Line
Loans and then to the Lenders as their respective Funded Percentages appear, or
(b) in case the entire unpaid principal of the Loan shall have become due
and payable, as a result of a Default or otherwise, to the payment of the whole
amount then due and payable on the Loan for principal, together with interest
thereon at the Default Rate or the interest rate, as applicable, to the Swing
Line Lender, unless the Swing Line Lender shall be a Defaulting Lender, for all
such amounts due in connection with Swing Line Loans and then to the Lenders
(other than a Defaulting Lender) as their respective Funded Percentages appear
until paid in full and then to the Letter of Credit Collateral Account until
the full amount of Facility Letter of Credit Obligations is on deposit therein;
and


 


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


 


2.24.                        Extension of Facility Termination Date.  Provided no Default or Unmatured Default has
occurred and is continuing the Borrower may request a one-year extension of the
Facility Termination Date by submitting a request for an extension to the Agent
(an “Extension Request”) no more than 90 and no fewer than 30 days prior to the
third anniversary of the closing of this Agreement.  Promptly upon receipt of an Extension Request, the Administrative
Agent shall notify each Lender thereof and shall request each Lender to approve
the Extension Request.  Each Lender
approving the Extension Request shall deliver its written consent no later than
15 days prior to such third anniversary of the closing of this Agreement.  If the consent of the Required Lenders is
received by the Administrative Agent, the Facility Termination Date shall be
extended by one year in the case of Lenders which approved such Extension
Request (the “Consenting Lenders”) and the Administrative Agent shall promptly
notify the Borrower and each Lender of the new Facility Termination Date and
the Consenting Lenders to which the same is applicable.  In the event all Lenders do not approve an
Extension Request in accordance with the foregoing, then the Borrower, at its
option and as a condition to the extension of the Facility Termination Date by
the Consenting Lenders, with respect to any Lender that did not agree to the
Extension Request (each, a “Non-Consenting Lender”), may either (a) replace any
such Non-Consenting Lender in accordance with the requirements of
Section 13.3 hereof or (b) pay any such Non-Consenting Lender’s
Outstanding Credit Exposure (including cash collateralizing such Lender’s
Percentage of outstanding Facility Letter of Credit Obligations) on or before
the Facility Termination Date as originally scheduled with a corresponding
termination of the Aggregate Commitments under Section 2.7 hereof.  It shall be an additional condition
precedent to any extension of the Facility Termination Date pursuant hereto
that the Borrower shall have paid, on or before the original Facility
Termination Date a fee to the Administrative Agent for the ratable account of
each Consenting Lender equal to the Extension Fee.


 


31

















 


ARTICLE III


 


THE
LETTER OF CREDIT SUBFACILITY


 


3.1.                              Obligations to Issue.  Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrower and the General Partner herein set forth, the Issuing Bank hereby
agrees to issue for the account of Borrower, one or more Facility Letters of
Credit in accordance with this Article III, and to renew, extend,
increase, decrease, or otherwise modify each Facility Letter of Credit
(“Modify”, and each such action, a “Modification”) from time to time during the
period commencing on the date hereof and ending on the Business Day prior to
the Facility Termination Date.  Any
Lender shall have the right to decline to be the Issuing Bank for a Facility
Letter of Credit provided that if no other Lender agrees to be the Issuing Bank
then Administrative Agent shall agree to do so.


 


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


 


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


 


(ii)                                                                                  issue
or Modify any Facility Letter of Credit if, after giving effect thereto, the
Facility Letter of Credit Obligations would exceed $40,000,000 or the Allocated
Facility Amount would exceed the Aggregate Commitment;


 


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


 


(iv)                                                                              issue
any Facility Letter of Credit having an expiration date, or containing
automatic extension provisions to extend such date, to a date which is more
than fifteen (15) months after the date of its issuance.


 


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


 


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


 


32

















 


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


 


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


 


3.4.                              Procedure for Issuance of Facility
Letters of Credit.


 


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


 


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


 


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


 


(3)          the
date on which such requested Facility Letter of Credit is to expire (which date
shall be a Business Day and shall in no event be later than the earlier of
fifteen months after the Issuance Date and the Facility Termination Date):


 


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


 


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


 


At the time such
request is made, the Borrower shall also provide the Administrative Agent and
the Issuing Bank with a copy of the form of the Facility Letter of Credit that
the Borrower is requesting be issued, which shall be subject to the approval of
the Issuing Bank and Administrative Agent. 
Such notice, to be effective, must be received by such Issuing Bank and
the Administrative Agent not later than 2:00 p.m. (Chicago time) on the last
Business Day on which notice can be given under this Section 3.4(a).  Administrative Agent shall promptly give a
copy of the Letter of Credit Request to the other Lenders.


 


33

















 


(b)                                 Subject
to the terms and conditions of this Article III and provided that
the applicable conditions set forth in Section 4.2 hereof have been
satisfied, such Issuing Bank shall, on the Issuance Date, issue a Facility
Letter of Credit on behalf of the Borrower in accordance with the Letter of
Credit Request and the Issuing Bank’s usual and customary business practices
(including the execution of a letter of credit application on the Issuing
Bank’s standard forms) unless the Issuing Bank has actually received (i)
written notice from the Borrower specifically revoking the Letter of Credit
Request with respect to such Facility Letter of Credit, (ii) written notice
from a Lender, which complies with the provisions of Section 3.11(a),
or (iii) written or telephonic notice from the Administrative Agent stating
that the issuance of such Facility Letter of Credit would violate Section 3.2.


 


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


 


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


 


3.5.                              Administration; Reimbursement by Lenders.  Upon receipt from the beneficiary of any
Facility Letter of Credit of any demand for payment under such Facility Letter
of Credit, the Issuing Bank shall notify the Administrative Agent and the Administrative
Agent shall promptly notify the Borrower and each other Lender as to the amount
to be paid by the Issuing Bank as a result of such demand and the proposed
payment date (the “LC Payment Date”). 
The responsibility of the Issuing Bank to the Borrower and each Lender
shall be only to determine that the documents (including each demand for
payment) delivered under each Facility Letter of Credit in connection with such
presentment shall be in conformity in all material respects with such Facility
Letter of Credit.  The Issuing Bank
shall endeavor to exercise the same care in the issuance and administration of
the Facility Letter of Credits as it does with respect to letters of credit in
which no participations are granted, it being understood that in the absence of
any gross negligence or willful misconduct by the Issuing Bank, each Lender
shall be unconditionally and irrevocably liable without regard to the
occurrence of any Default or any condition precedent whatsoever, to reimburse
the Issuing Bank on demand for (i) such Lender’s Percentage of the amount of
each payment made by the Issuing Bank under each Facility Letter of Credit to
the extent such amount is not reimbursed by the Borrower pursuant to
Section 3.6 below, plus (ii) interest on the foregoing amount to be
reimbursed by such Lender, for each day from the date of the Issuing Bank’s
demand for such reimbursement (or, if such demand is made after 11:00 a.m.
(Chicago time) on such date, from the next succeeding Business Day) to the date
on which such Lender pays the amount to be reimbursed by it, at a rate of
interest per annum equal to the Federal Funds Effective Rate for the first
three days and, thereafter, at a rate of interest equal to the rate applicable
to ABR Advances.


 


3.6.                              Reimbursement by Borrower.  The Borrower shall be irrevocably and
unconditionally obligated to reimburse the Issuing Bank on or before the
applicable LC Payment Date for any amounts to be paid by the Issuing Bank upon
any drawing under any Facility Letter of Credit, without presentment, demand,
protest or other formalities of any kind; provided that


 


34

















 


neither the Borrower nor
any Lender shall hereby be precluded from asserting any claim for direct (but
not consequential) damages suffered by the Borrower or such Lender to the
extent, but only to the extent, caused by (i) the willful misconduct or gross
negligence of the Issuing Bank in determining whether a request presented under
any Facility Letter of Credit issued by it complied with the terms of such
Facility Letter of Credit or (ii) the Issuing Bank’s failure to pay under any
Facility Letter of Credit issued by it after the presentation to it of a
request strictly complying with the terms and conditions of such Facility
Letter of Credit.  All such amounts paid
by the Issuing Bank and remaining unpaid by the Borrower shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to (x) the
rate applicable to ABR Advances for such day if such day falls on or before the
applicable LC Payment Date and (y) the sum of 2% plus the rate applicable to
ABR Advances for such day if such day falls after such LC Payment Date.  The Issuing Bank will pay to each Lender
ratably in accordance with its Percentage all amounts received by it from the
Borrower for application in payment, in whole or in part, of the Reimbursement
Obligation in respect of any Facility Letter of Credit issued by the Issuing
Bank, but only to the extent such Lender has made payment to the Issuing Bank
in respect of such Facility Letter of Credit pursuant to Section 3.5.  Subject to the terms and conditions of this
Agreement (including without limitation the submission of a Borrowing Notice in
compliance with Section 2.10 and the satisfaction of the applicable
conditions precedent set forth in Article V), the Borrower may request an
Advance hereunder for the purpose of satisfying any Reimbursement Obligation.


 


3.7.                              Obligations Absolute.  The Borrower’s obligations under
Section 3.6 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Bank, any
Lender or any beneficiary of a Facility Letter of Credit.  The Borrower further agrees with the Issuing
Bank and the Lenders that the Issuing Bank and the Lenders shall not be
responsible for, and the Borrower’s Reimbursement Obligation in respect of any
Facility Letter of Credit shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even if
such documents should in fact prove to be in any or all respects invalid,
fraudulent or forged, or any dispute between or among the Borrower, any of its
Affiliates, the beneficiary of any Facility Letter of Credit or any financing
institution or other party to whom any Facility Letter of Credit may be
transferred or any claims or defenses whatsoever of the Borrower or of any of
its Affiliates against the beneficiary of any Facility Letter of Credit or any
such transferee.  The Issuing Bank shall
not be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Facility Letter of Credit. 
The Borrower agrees that any action taken or omitted by the Issuing Bank
or any Lender under or in connection with each Facility Letter of Credit and
the related drafts and documents, if done without gross negligence or willful
misconduct, shall be binding upon the Borrower and shall not put the Issuing
Bank or any Lender under any liability to the Borrower.  Nothing in this Section 3.7 is intended
to limit the right of the Borrower to make a claim against the Issuing Bank for
damages as contemplated by the proviso to the first sentence of
Section 3.6.


 


3.8.                              Actions of Issuing Bank.  The Issuing Bank shall be entitled to rely,
and shall be fully protected in relying, upon any Facility Letter of Credit,
draft, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document believed by it to be genuine and correct and to have been


 


35

















 


signed, sent or made by
the proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Issuing Bank.  The Issuing Bank shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first have received such advice or concurrence of the Required Lenders as it
reasonably deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such
action.  Notwithstanding any other
provision of this Article 3.8, the Issuing Bank shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
in accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon the
Lenders and any future holders of a participation in any Facility Letter of
Credit.


 


3.9.                              Indemnification.  The Borrower hereby agrees to indemnify and hold harmless each
Lender, the Issuing Bank and the Administrative Agent, and their respective
directors, officers, agents, attorneys, professional advisors and employees
from and against any and all claims and damages, losses, liabilities, costs or
expenses which such Lender, the Issuing Bank, the Administrative Agent or their
respective directors, officers, agents, attorneys, professional advisors and
employees, may incur (or which may be claimed against such Lender, the Issuing
Bank or the Administrative Agent by any Person whatsoever) by reason of or in
connection with the issuance, execution and delivery or transfer of or payment
or failure to pay under any Facility Letter of Credit or any actual or proposed
use of any Facility Letter of Credit, including, without limitation, any
claims, damages, losses, liabilities, costs or expenses which the Issuing Bank
may incur by reason of or in connection with (i) the failure of any other
Lender to fulfill or comply with its obligations to the Issuing Bank hereunder
(but nothing herein contained shall affect any rights the Borrower may have
against any defaulting Lender) or (ii) by reason of or on account of the
Issuing Bank issuing any Facility Letter of Credit which specifies that the
term “Beneficiary” included therein includes any successor by operation of law
of the named Beneficiary, but which Facility Letter of Credit does not require
that any drawing by any such successor Beneficiary be accompanied by a copy of
a legal document, satisfactory to the Issuing Bank, evidencing the appointment
of such successor Beneficiary; provided that the Borrower shall not be
required to indemnify any Lender, the Issuing Bank or the Administrative Agent
or their respective directors, officers, agents, attorneys, professional
advisors and employees for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by (x) the willful
misconduct or gross negligence of the Issuing Bank in determining whether a
request presented under any Facility Letter of Credit complied with the terms
of such Facility Letter of Credit or (y) the Issuing Bank’s failure to pay
under any Facility Letter of Credit after the presentation to it of a request
strictly complying with the terms and conditions of such Facility Letter of
Credit.  Nothing in this
Section 3.9 is intended to limit the obligations of the Borrower under any
other provision of this Agreement.


 


3.10.                        Lenders’ Indemnification.  Each Lender shall, ratably in accordance
with its Percentage, indemnify the Issuing Bank, its affiliates and their
respective directors, officers, agents, attorneys, professional advisors and
employees (to the extent not reimbursed by the Borrower) against any cost,
expense (including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from such indemnitees’ gross
negligence or willful misconduct or the Issuing Bank’s failure to pay under any
Facility Letter of Credit after the presentation to it of a request strictly
complying with the terms and conditions of


 


36

















 


the Facility Letter of
Credit) that such indemnitees may suffer or incur in connection with this
Article III or any action taken or omitted by such indemnitees hereunder.


 


3.11.                        Participation.


 


(a)                                  Immediately
upon issuance by the Issuing Bank of any Facility Letter of Credit or
Modification in accordance with the procedures set forth in Section 3.4,
each Lender shall be deemed to have irrevocably and unconditionally purchased
and received from the Issuing Bank, without recourse, representation or
warranty, an undivided interest and participation equal to such Lender’s
Percentage in such Facility Letter of Credit (including, without limitation,
all obligations of the Borrower with respect thereto) and any security therefor
or guaranty pertaining thereto; provided that a Letter of Credit issued
by the Issuing Bank shall not be deemed to be a Facility Letter of Credit for
purposes of this Section 3.11 if the Issuing Bank shall have
received written notice from any Lender on or before the Business Day prior to
the date of its issuance of such Letter of Credit that one or more of the
conditions contained in Section 5.2 is not then satisfied, and in
the event the Issuing Bank receives such a notice it shall have no further
obligation to issue any Facility Letter of Credit until such notice is
withdrawn by that Lender or the Issuing Bank receives a notice from the
Administrative Agent that such condition has been effectively waived in
accordance with the provisions of this Agreement.  Each Lender’s obligation to make further Loans to the Borrower
(other than any payments such Lender is required to make under subparagraph (b)
below) or issue any letters of credit on behalf of Borrower shall be reduced by
such Lender’s pro rata share of each Facility Letter of Credit outstanding.


 


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


 


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


 


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


 


3.12.                        Compensation for Facility Letters of Credit.


 


(a)                                  The
Borrower shall pay to the Administrative Agent, for the ratable account of the
Lenders, based upon the Lenders’ respective Percentages, a per annum fee (the “Facility
Letter of Credit Fee”) with respect to each Facility Letter of Credit that
is equal to the LIBOR


 


37

















 


Applicable Margin in effect from time to time.  The Facility Letter of Credit Fee relating
to any Facility Letter of Credit shall be due and payable in arrears in equal
installments on each Payment Date and, to the extent any such fees are then due
and unpaid, on the Facility Termination Date. 
The Administrative Agent shall promptly remit such Facility Letter of
Credit Fees, when paid, to the other Lenders in accordance with their
Percentages thereof.


 


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


 


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


 


ARTICLE IV


 


CHANGE IN CIRCUMSTANCES


 


4.1.                              Yield Protection.


 


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


 


(a)                                  subjects
any Lender or any applicable Lending Installation or the Issuing Bank to any
Taxes, or changes the basis of taxation of payments (other than with respect to
Excluded Taxes) to any Lender or any applicable Lending Installation or the
Issuing Bank in respect of its LIBOR Loans, Facility Letters of Credit or
participations therein, or


 


(b)                                 imposes
or increases or deems applicable any reserve, assessment, insurance charge,
special deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or


 


38

















 


any applicable
Lending Installation or the Issuing Bank (other than reserves and assessments
taken into account in determining the interest rate applicable to LIBOR Advances),
or


 


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


 


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


 


4.2.                              Changes in Capital Adequacy Regulations.


 


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


 


39

















 


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


 


4.3.                              Availability of Types of Advances.


 


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


 


4.4.                              Funding Indemnification.


 


If any payment of a
ratable LIBOR Advance or a Competitive Bid Loan occurs on a date which is not
the last day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, or a ratable LIBOR Advance or a
Competitive Bid Loan is not made on the date specified by the Borrower for any
reason other than default by the Lenders or as a result of unavailability
pursuant to Section 4.3, the Borrower will indemnify each Lender
for any loss or cost incurred by it resulting therefrom, including, without
limitation, any loss or cost in liquidating or employing deposits acquired to
fund or maintain the ratable LIBOR Advance or Competitive Bid Loan, as the case
may be, and shall pay all such losses or costs within fifteen (15) days after
written demand therefor.  Nothing in
this Section 4.4 shall authorize the prepayment of a Competitive
Bid Loan prior to the end of the applicable Interest Period.


 


4.5.                              Taxes.


 


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


 


40

















 


in accordance with applicable law and (d) the Borrower shall furnish to
the Administrative Agent the original copy of a receipt evidencing payment
thereof within 30 days after such payment is made.


 


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


 


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


 


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


 


41

















 


the Administrative Agent that it is not capable of receiving payments
without any deduction or withholding of United States federal income tax.


 


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


 


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


 


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


 


4.6.                              Lender Statements; Survival of Indemnity.


 


To the extent possible in
the exercise of any Lender’s good faith discretion, each Lender shall designate
an alternate Lending Installation with respect to its LIBOR Loans to reduce any
liability of the Borrower to such Lender under Sections 4.1, 4.2 and 4.5 or to
avoid the unavailability of Advances under Section 4.3, so long as such
designation does not reduce such Lender’s income or increase such Lender’s
liabilities.  Each Lender shall deliver
a written statement of such Lender to the Borrower (with a copy to the
Administrative Agent) as to the


 


42

















 


amount due, if any, under
Section 4.1, 4.2, 4.4 or 4.5.  Such
written statement shall set forth in reasonable detail the calculations upon
which such Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error.  Determination of amounts payable under such
Sections in connection with a LIBOR Loan shall be calculated as though each
Lender funded its LIBOR Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
LIBOR Rate applicable to such Loan, whether in fact that is the case or not.  Unless otherwise provided herein, the amount
specified in the written statement of any Lender shall be payable on demand
after receipt by the Borrower of such written statement.  The obligations of the Borrower under Sections
4.1, 4.2, 4.4 and 4.5 shall survive payment of the Obligations and termination
of this Agreement.


 


4.7.                              Replacement of Lenders under Certain
Circumstances.


 


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


 


ARTICLE V


 


CONDITIONS PRECEDENT


 


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


 


43

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(viii)                                                                        A
certificate, signed by an officer of the General Partner on behalf of the
Borrower and for itself, stating that on the initial Borrowing Date no Default
or Unmatured Default has occurred and is continuing and that all
representations and warranties of the General Partner and the Borrower are true
and correct as of the initial Borrowing Date, upon which


 


44

















 


certificate the Administrative Agent and the Lenders shall be entitled
to rely until informed of any change in writing by the Borrower;


 


(ix)                                                                                The
most recent financial statements of the General Partner and the Borrower and a
certificate from an officer of the General Partner that no material adverse
change in the General Partner’s or the Borrower’s financial condition has
occurred since September 30, 2003 ;


 


(x)                                                                                   UCC
financing statement, judgment, and tax lien searches with respect to the
General Partner and the Borrower from their states of organization and the
states where they have their principal place of business;


 


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


 


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


 


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


 


(xiv)                                                                         The
Administrative Agent shall have determined that (i) since October 16, 2003
there is an absence of any material adverse change or disruption in primary or
secondary loan syndication markets, financial markets or in capital markets
generally that would likely impair syndication of the Loans hereunder and (ii)
the Borrower has fully cooperated with the Administrative Agent’s syndication
efforts including, without limitation, by providing the Administrative Agent
with information regarding the Borrower’s operations and prospects and such
other information as the Administrative Agent deems necessary to successfully
syndicate the Loans hereunder;


 


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


 


Until such time as
the foregoing conditions are satisfied and the initial disbursement hereunder
has been made, the Existing Credit Agreement shall remain in effect.  From and after the satisfaction of such
conditions, this Agreement shall be in effect and each of the new Lenders that
are parties to this Agreement shall be added as Lenders and the Commitments of
all Lenders shall be as set forth on the signature pages.


 


45

















 


5.2.                              Each Credit Extension.  The Lenders shall not be required to make
any Credit Extension (including Swing Line Loans) other than an Advance or
Swing Line Loan that, after giving effect thereto and to the application of the
proceeds thereof, does not increase the aggregate amount of outstanding
Advances (including Swing Line Loans) and Competitive Bid Loans, unless on the
applicable Borrowing Date:


 


(i)                                                                                     There
exists no Default or Unmatured Default;


 


(ii)                                                                                  The
representations and warranties contained in Article VI are true and
correct as of such Borrowing Date with respect to the General Partner, the
Borrower and to any Subsidiary in existence (as applicable) on such Borrowing
Date, except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
shall be true and correct on and as of such earlier date provided that for
those representations made to the Borrower’s best knowledge, Borrower shall not
be required to make any specific inquiry to determine the accuracy of a
representation and warranty as of a Borrowing Date, as long as such inquiry is
made on a quarterly basis in connection with the delivery of its quarterly
compliance certificate; and


 


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


 


Each Borrowing Notice or
request for issuance of a Facility Letter of Credit with respect to each such Credit
Extension (including Swing Line Loans) shall constitute a representation and
warranty by the Borrower that the conditions contained in Sections 5.2(i)
and (ii) have been satisfied. 
Any Lender may require a duly completed compliance certificate in substantially
the form of Exhibit F hereto (including all schedules or exhibits) as a
condition to making an Advance (including Swing Line Loans); provided that the
calculations contained therein shall be based on the most recent quarterly
information available.


 


ARTICLE VI


 


REPRESENTATIONS AND WARRANTIES


 


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


 


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


 


6.2.                              Authorization and Validity.  It has the power and authority and legal
right to execute and deliver the Loan Documents and to perform its obligations
thereunder.  The


 


46

















 


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


 


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


 


6.4.                              Financial Statements; Material Adverse
Change.  The September 30, 2003
consolidated financial statements of the General Partner, the Borrower and
their Subsidiaries heretofore delivered to the Lenders were prepared in
accordance with GAAP in effect on the date such statements were prepared and
fairly present the consolidated financial condition and operations of the
General Partner, the Borrower and their Subsidiaries at such date and the
consolidated results of their operations for the period then ended.  Since September 30, 2003, there has
been no change in the business, Property, prospects, condition (financial or
otherwise) or results of operations of the General Partner, the Borrower and
their Subsidiaries which could have a Material Adverse Effect.


 


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


 


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


 


47

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


48

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


49

















 


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


 


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


 


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


 


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


 


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


 


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


 


50

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


51

















 


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


 


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


 


6.20.7                  Except for matters insured by title
insurance, all improvements on the Unencumbered Asset lie within the boundaries
and building restrictions of the legal description of record of the
Unencumbered Asset, no such improvements encroach upon easements benefiting the
Unencumbered Asset other than encroachments that do not materially adversely
affect the use or occupancy of the Unencumbered Asset and no improvements on
adjoining properties encroach upon the Unencumbered Asset or easements
benefiting the Unencumbered Asset other than encroachments that do not
materially adversely affect the use or occupancy of the Unencumbered
Asset.  All material amenities, access
routes or other items that materially benefit the Unencumbered Asset are under
direct control of Borrower, constitute permanent easements that benefit all or
part of the Unencumbered Asset or are public property, and the Unencumbered
Asset, by virtue of such easements or otherwise, is contiguous to a physically
open, dedicated all weather public street, and has the necessary permits for
ingress and egress.


 


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


 


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


 


6.21.                        Reportable Transaction.  The Borrower does not intend to treat the
Advances and the other transactions contemplated hereby as being a “reportable
transaction” (within the meaning of Treasury Regulation
Section 1.6011-4).  In the event
the Borrower determines to take any action inconsistent with such intention, it
will promptly notify the Administrative Agent and the Lenders thereof.  The Borrower acknowledges that the
Administrative Agent and/or one or more of the Lenders may treat its Advances
and the other transactions contemplated hereby as


 


52

















 


part of a
transaction that is subject to Treasury Regulation Section 1.6011-4 or
Section 301.6112-1 and the Administrative Agent and such Lender or
Lenders, as applicable, may file such IRS forms or maintain such lists and
other records as they may determine is required by such Treasury Regulations.


 


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


 


ARTICLE VII


 


COVENANTS


 


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


 


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


 


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


 


(ii)                                                                                  As
soon as available, but in any event not later than 45 days after the close of
each fiscal quarter, for the General Partner, the Borrower and their
Subsidiaries, related reports in form and substance satisfactory to the
Lenders, all certified by the entity’s chief financial officer or chief
accounting officer, including a statement of Funds From Operations, a
description of Unencumbered Assets, a statement of Guarantee Obligations,
including a description of any guaranties of Investment Affiliate Debt excluded
from Guarantee Obligations pursuant to the definition thereof, along with a
certification that the conditions for exclusion are met and such back-up information
as may be requested by Administrative Agent, a listing of capital expenditures,
a report listing and


 


53

















 


describing all newly acquired Projects, including their Property
Operating Income, cost and secured or unsecured Indebtedness assumed in
connection with such acquisition, if any, summary Project information for all
Projects, including, without limitation, their Property Operating Income,
occupancy rates, square footage, property type and date acquired or built, and
such other information as may be requested;


 


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


 


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


 


(v)                                                                                 Together
with the quarterly and annual financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit F
hereto signed by the General Partner’s and the Borrower’s chief financial
officers or chief accounting officers showing the calculations and computations
necessary to determine compliance with this Agreement and stating that no
Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof;


 


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


 


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


 


54

















 


regulation by the General Partner or the Borrower or any of their
Subsidiaries, which, in either case, could have a Material Adverse Effect;


 


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


 


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


 


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


 


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


 


If any information which
is required to be furnished to the Lenders under this Section 7.1
is required by law or regulation to be filed by the Borrower with a government
body on an earlier date than is hereby required, then the information required
hereunder shall be furnished to the Lenders at such earlier date.


 


7.2.                              Use of Proceeds. 
The General Partner and the Borrower will, and will cause each of their
Subsidiaries to, use the proceeds of the Advances for the general business
purposes of the Borrower, including working capital needs and interim financing
for property acquisitions of new Projects, construction of new improvements or
expansions of existing improvements on Projects, and to repay outstanding
Advances.  The General Partner and the
Borrower will not, nor will they permit any Subsidiary to, use any of the
proceeds of the Advances (i) to purchase or carry any “margin stock” (as
defined in Regulation G or U) or (ii) to fund any purchase of, or offer for,
any Capital Stock of any Person, unless such Person has consented to such offer
prior to any public announcements relating thereto and the Required Lenders
have consented to such use of the proceeds of such Advance.


 


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


 


7.4.                              Conduct of Business.  The General Partner and the Borrower will
do, and will cause each of their Subsidiaries to do, all things necessary to
remain duly incorporated and/or duly qualified, validly existing and in good
standing as a real estate investment trust, corporation, general partnership or
limited partnership, as the case may be, in its jurisdiction of
incorporation/formation and maintain all requisite authority to conduct its
business in each jurisdiction in which its business is conducted and to carry
on and conduct its businesses in substantially the same manner as it is
presently conducted and, specifically, neither the General Partner, the
Borrower nor their respective Subsidiaries will undertake any business other
than the


 


55

















 


acquisition, development, ownership, management, operation and leasing
of office, industrial and retail properties and ancillary businesses
specifically related thereto, including its third party construction business
except that the Borrower and its Subsidiaries may invest in (i) land, (ii)
non-office/industrial/retail property holdings, (iii) stock holdings, (iv)
mortgages (v) passive non-real estate investments and (vi) joint ventures and
partnerships, provided that the total investment in any one of the first
five of the foregoing categories does not exceed ten percent (10%) of Market
Capitalization, the total investment in the sixth category (joint ventures and
partnerships) does not exceed 20% of Market Capitalization, and the total
investment in all of the foregoing investment categories in the aggregate is
less than or equal to twenty-five percent (25%) of Market Capitalization.  For the purposes of this Section 7.4,
joint ventures and partnerships shall be valued in accordance with GAAP,
non-revenue generating investments such as land and stock holdings shall be
valued at the lower of acquisition cost or market value, and the value of all
other investments shall be determined by capitalizing Property Operating Income
from these assets at a rate of 9.0%.  In
the event of any disagreement as to how to value an investment, the judgment of
the Administrative Agent shall prevail.


 


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


 


7.6.                              Insurance. 
The General Partner and the Borrower will, and will cause each of their
Subsidiaries to, maintain with financially sound and reputable insurance
companies insurance on all their Property in such amounts and covering such
risks as is consistent with sound business practice, and the General Partner
and the Borrower will furnish to any Lender upon request full information as to
the insurance carried.


 


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


 


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


 


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


 


56

















 


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


 


7.11.                        Dividends. 
Provided there is not a continuing Default under Section 8.1 or Section 8.2,
and there is not a continuing Default under Section 8.3 relating to
a breach of any of the covenants contained in Section 7.20, the
General Partner and its Subsidiaries shall be permitted to declare and pay
dividends on their Capital Stock from time to time in amounts determined by the
General Partner, provided, however, that subject to the terms of
the next sentence, in no event shall the General Partner or any of its
Subsidiaries declare or pay dividends on their Capital Stock if dividends paid
in any period of four fiscal quarters, in the aggregate, would exceed 90% of
Funds From Operations for such period. 
Notwithstanding the foregoing, the General Partner shall be permitted to
distribute whatever amount of dividends is necessary to maintain its tax status
as a real estate investment trust, provided there is not a
continuing Default under Sections 8.1 or 8.2.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


57

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


7.17.                        Interest Rate Hedging.  The General Partner and the Borrower will
not enter into or remain liable upon, nor will they permit any Subsidiary to
enter into or remain liable upon, any agreements, devices or arrangements
designed to protect at least one of the parties thereto from the fluctuations
of interest rates, exchange rates or forward rates applicable to such party’s
assets, liabilities or exchange transactions, including, but not limited to,
interest rate exchange


 


58

















 


agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate options
unless such agreement, device or arrangement was entered into by the General
Partner or the Borrower in the ordinary course of its business for the purpose
of hedging interest rate risk to the General Partner or the Borrower.


 


7.18.                        Variable Interest Indebtedness.  The General Partner shall not at any time
permit the outstanding principal balance of Indebtedness of the General Partner
and the Borrower and their Subsidiaries which bears interest at an interest
rate that is not fixed through the maturity date of such Indebtedness to exceed
$950,000,000.


 


7.19.                        Consolidated Net Worth.  The General Partner, as of the last day of
any fiscal quarter, shall maintain a Consolidated Net Worth of not less than
the sum of (i) $3,066,581,000 plus (ii) seventy-five percent (75%) of
the aggregate proceeds received by the General Partner (net of customary
related fees and expenses) in connection with any offering of stock in the
General Partner or partnership interests in the Borrower after
September 30, 2003.


 


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


 


(i)                                                                                     the
ratio of EBITDA to Interest Expense to be less than 2.25 to 1.0 for the quarter
then ended;


 


(ii)                                                                                  the
ratio of Adjusted EBITDA to Fixed Charges to be less than 1.75 to 1.0 for the
quarter then ended;


 


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


 


(iv)                                                                              Consolidated
Total Indebtedness to exceed fifty percent (50%) of Market Capitalization;


 


(v)                                                         the
Value of Unencumbered Assets to be less than 1.75 times the Consolidated Senior
Unsecured Indebtedness;


 


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


 


(vii)                                                                           Consolidated
Secured Indebtedness to exceed thirty-five percent (35%) of Market
Capitalization.


 


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


 


59

















 


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


 


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


 


(iii)                               defend,
indemnify and hold harmless the Administrative Agent and each Lender, and their
respective employees, agents, officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the violation of, noncompliance with
or liability under any Environmental Laws applicable to the operations of the
General Partner, the Borrower, their Subsidiaries or the Projects, or any
orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, attorney’s and consultant’s fees, investigation
and laboratory fees, response costs, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification therefor;
and


 


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


 


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


 


60

















 


7.22.                        Intentionally Omitted.


 


7.23.                        Borrower’s Partnership Agreement.  The General Partner shall not consent to any
changes to Borrower’s partnership agreement, other than changes in the ordinary
course of business, without the prior written consent of the Administrative
Agent.


 


7.24.                        Intentionally Omitted.


 


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


 


ARTICLE VIII


 


DEFAULTS


 


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


 


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


 


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


 


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


 


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


 


8.5.                              The
breach (other than a breach which constitutes a Default under Section 8.1,
8.2, 8.3 or 8.4) of any of the terms or provisions of this
Agreement which is not remedied within fifteen (15) days after written notice
from the Administrative Agent or any Lender.


 


8.6.                              Failure
of the General Partner, the Borrower or any of their Subsidiaries to pay when
due any Indebtedness aggregating in excess of $10,000,000 for which liability
is not limited to specific pledged collateral.


 


8.7.                              The
General Partner, the Borrower or any Subsidiary having more than $10,000,000 of
Equity Value shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it as a bankrupt or insolvent, or


 


61

















 


seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors or fail to
file an answer or other pleading denying the material allegations of any such
proceeding filed against it, (v) take any corporate action to authorize or
effect any of the foregoing actions set forth in this Section 8.7,
(vi) fail to contest in good faith any appointment or proceeding described in Section 8.8
and maintain adequate reserves for such contest in accordance with GAAP or
(vii) not pay, or admit in writing its inability to pay, its debts
generally as they become due.


 


8.8.                              A
receiver, trustee, examiner, liquidator or similar official shall be appointed
for the General Partner, the Borrower or any Subsidiary having more than
$10,000,000 of Equity Value or any Substantial Portion of its Property, or a
proceeding described in Section 8.7(iv) shall be instituted against
the General Partner, the Borrower or any such Subsidiary and such appointment
continues undischarged or such proceeding continues undismissed or unstayed for
a period of thirty (30) consecutive days.


 


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


 


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


 


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


 


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


 


62

















 


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


 


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


 


8.15.                        The
revocation or attempted revocation of the Guaranty.


 


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


 


ARTICLE IX


 


ACCELERATION,
WAIVERS, AMENDMENTS AND REMEDIES


 


 


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


 


In addition to the
foregoing, following the occurrence of a Default and so long as any Facility
Letter of Credit has not been fully drawn and has not been cancelled or expired
by its terms, upon demand by the Administrative Agent (which Administrative
Agent agrees to make if requested to by the Required Lenders) the Borrower
shall deposit in the Letter of Credit Collateral Account cash in an amount
equal to the aggregate undrawn face amount of all outstanding Facility Letters
of Credit and all fees and other amounts due or which may become due with
respect thereto.  The Borrower shall
have no control over funds in the Letter of Credit Collateral Account, which
funds will be invested by the Administrative Agent from time to time at its
discretion in certificates of deposit of First Chicago having a maturity not
exceeding 30 days.  Such funds shall be
promptly applied by the Administrative Agent to reimburse any Issuing Bank for
drafts drawn from time to time under the Facility Letters of Credit.  Such funds, if any, remaining in the Letter
of Credit Collateral Account following the payment of all Obligations in full
shall, unless Administrative Agent is otherwise directed by a court of
competent jurisdiction, be promptly paid over to the Borrower.


 


63

















 


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


 


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


 


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


 


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


 


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


 


(iv)                                                                              Increase
the amount of the Aggregate Commitment to an amount in excess of $700,000,000.


 


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


 


(vi)                                                                              Amend
this Section 9.2.


 


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


 


No amendment of
any provision of this Agreement relating to the Administrative Agent shall be
effective without the written consent of the Administrative Agent, no amendment
of any provision relating to the Issuing Bank shall be effective without the
consent of the Issuing Bank, and no amendment increasing the Commitment of any
Lender shall be effective without the written consent of such Lender.  The approval of the Required Lenders shall
not be required to increase the Aggregate Commitment in accordance with Section 2.1.


 


Notwithstanding the
foregoing: (1) no amendment, waiver, or consent shall, unless in writing and
signed by the Designating Lender on behalf of its respective Designated Lender
affected thereby, (a) subject such Designated Lender to any additional obligations,
(b) reduce the


 


64

















 


principal of, interest on, or the amounts due with respect to, the
Competitive Bid Loan Note made payable to such Designated Lender, (c) postpone
any date fixed for any payment of principal of, or interest on, or other
amounts due with respect to, the Competitive Bid Note made payable to such
Designated Lender, or (d) amend the definition of Required Lenders hereunder in
a manner which adversely affects the rights of such Designated Lender.


 


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


 


ARTICLE X


 


GENERAL
PROVISIONS


 


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


 


10.2.                        Governmental Regulation.  Anything contained in this Agreement to the
contrary notwithstanding, neither the Issuing Bank nor any Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.


 


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


 


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


 


10.5.                        Several Obligations; Benefits of
this Agreement.  The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any


 


65

















 


other (except to the extent to which the Administrative Agent is
authorized to act as such).  The failure
of any Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder.  This Agreement shall not be construed so as to confer any right
or benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns.


 


10.6.                        Expenses; Indemnification.  The Borrower shall reimburse the Indemnified
Parties on demand for any costs, internal charges and reasonable out-of-pocket
expenses (including, without limitation, all reasonable fees for consultants
and reasonable fees and expenses for attorneys for the Indemnified Parties,
which attorneys may be employees of the Indemnified Parties) paid or incurred
by the Indemnified Parties (whether in their capacity as arranger, or, in the
case of Bank One, NA in its capacity as Administrative Agent) in connection
with the preparation, negotiation, execution, delivery, review, amendment,
modification, and administration of the Loan Documents.  The Borrower also agrees to reimburse the
Indemnified Parties, the Issuing Bank and the Lenders for any costs, internal
charges and reasonable out-of-pocket expenses (including, without limitation,
all reasonable fees and expenses for attorneys for the Indemnified Parties, the
Issuing Bank and the Lenders, which attorneys may be employees of the
Indemnified Parties, the Issuing Bank or the Lenders) paid or incurred by the
Indemnified Parties (whether in their capacity as arranger, or, in the case of
Bank One, NA, in its capacity as Administrative Agent), the Issuing Bank or any
Lender in connection with the collection and enforcement of the Loan Documents
(including, without limitation, any workout). 
The Borrower further agrees to indemnify the Indemnified Parties, the
Issuing Bank and each Lender and their directors, officers, employees, agents,
attorneys and professional advisors against all losses, claims, damages,
penalties, judgments, liabilities and reasonable expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
such entity is a party thereto) which any of them may pay or incur arising out
of or relating to this Agreement, the other Loan Documents, the Projects, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Credit Extension hereunder.  The obligations of the Borrower under this Section 10.7
shall survive the termination of this Agreement.


 


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


 


10.8.                        Accounting. 
Except as provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall
be made in accordance with GAAP in a manner consistent with that used in
preparing the financial statements referred to in Section 6.4.  If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any
Loan Document, and the Borrower, the Administrative Agent or the Required
Lenders shall so request, the Administrative Agent, the Lenders and the Loan
Parties shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject
to the approval of the Required Lenders), provided that, until so amended such ratio
or requirement shall continue to be computed in accordance with GAAP prior to
such change therein and the Borrower shall provide to the Administrative Agent
and the Lenders reconciliation statements


 


66

















 


showing the difference in such calculation, together with the delivery
of monthly, quarterly and annual financial statements required hereunder.


 


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


 


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


 


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


 


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


 


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


 


67

















 


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


 


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


 


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


 


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


 


ARTICLE XI


 


THE
ADMINISTRATIVE AGENT AND AGREEMENTS AMONG LENDERS


 


11.1.                        Appointment; Nature of Relationship.  Bank One, NA is hereby appointed by each of
the Lenders as its contractual representative (herein referred to as the
“Agent”) hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the contractual representative of
such Lender with the rights and duties expressly set forth herein and in the
other Loan Documents.  The Agent agrees
to act as such contractual representative upon the express conditions contained
in this Article XI. 
Notwithstanding the use of the defined term “Agent,” it is expressly
understood and agreed that the Agent shall not have


 


68

















 


any fiduciary responsibilities to any Lender by reason of this
Agreement or any other Loan Document and that the Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents.  In its capacity as the Lenders’ contractual
representative, the Agent (i) does not hereby assume any fiduciary duties to
any of the Lenders, (ii) is a “representative” of the Lenders within the
meaning of the term “secured party” as defined in the Illinois Uniform
Commercial Code and (iii) is acting as an independent contractor, the rights
and duties of which are limited to those expressly set forth in this Agreement
and the other Loan Documents.  Each of
the Lenders hereby agrees to assert with respect to the Loan Documents and
administration of the Loan, no claim against the Agent on any agency theory or
any other theory of liability for breach of fiduciary duty, all of which claims
each Lender hereby waives.


 


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


 


11.3.                        General Immunity.  Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action lawfully taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except for its or their own gross negligence or willful misconduct.


 


11.4.                        No Responsibility for Loans,
Recitals, etc.  Except where
the failure to do so constitutes gross negligence or wilful misconduct, neither
the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (i) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any obligor under any Loan
Document, including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (iii) the satisfaction of any condition
specified in Article V, except receipt of items required to be
delivered to the Administrative Agent; (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished
in connection therewith; or (v) the value, sufficiency, creation, perfection or
priority of any interest in any collateral security.


 


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


 


69

















 


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


 


11.7.                        Reliance on Documents; Counsel.  The Administrative Agent shall be entitled
to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex, electronic mail message, statement, paper or
document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and, in respect to legal matters, upon
the opinion of counsel selected by the Administrative Agent, which counsel may
be employees of the Administrative Agent. 
For purposes of determining compliance with the conditions specified in
Sections 5.1, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the applicable date stating in reasonable
detail its objection thereto.


 


11.8.                        Administrative Agent’s
Reimbursement and Indemnification. 
The Lenders agree to reimburse and indemnify the Administrative Agent
ratably in proportion to their respective Commitments (i) for any reasonable
amounts not reimbursed by the Borrower or Guarantor for which the
Administrative Agent is entitled to reimbursement by the Borrower or Guarantor
under the Loan Documents including reasonable out-of-pocket expenses in
connection with the preparation, execution, delivery of the Loan Documents,
(ii) for any other reasonable out-of-pocket expenses incurred by the
Administrative Agent on behalf of the Lenders, in connection with the
administration and enforcement of the Loan Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Administrative Agent in
any way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby, or
the enforcement of any of the terms thereof or of any such other documents, provided
that no Lender shall be liable for (i) any of the foregoing to the extent they
arise from the gross negligence or willful misconduct of the Administrative
Agent, or (ii) any costs or expenses of the Administrative Agent’s in-house
legal staff and personnel.  The
obligations of the Lenders under this Section 11.8 shall survive
payment of the Obligations and termination of this Agreement, and shall not be
reduced by the designation of a Designated Lender to fund Competitive Bid Loans
on behalf of a Lender, provided that each Designated Lender shall be jointly
and severally liable with the Designating Lender for the Designating Lender’s
Share (as hereinafter determined) of the amounts due from such Designating
Lender.  The Designated Lender’s Share
of amounts due shall be equal to such amount due multiplied by a fraction whose
numerator is the amount funded by the Designated Lender (but in no event more
than the amount of Designating Lender’s Commitment) and whose denominator is
the amount of the Designating Lender’s Commitment.


 


70

















 


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


 


11.10.                  Lender Credit Decision.  Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents.  Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Loan Documents.  Except for any
notice, report, document or other information expressly required to be
furnished to the Lenders by the Administrative Agent or Arranger hereunder,
neither the Administrative Agent nor the Arranger shall have any duty or
responsibility (either initially or on a continuing basis) to provide any
Lender with any notice, report, document, credit information or other
information concerning the affairs, financial condition or business of the
Borrower or any of its Affiliates that may come into the possession of the
Administrative Agent or Arranger (whether or not in their respective capacity
as Administrative Agent or Arranger) or any of their Affiliates.


 


11.11.                  Successor Administrative Agent.  The Administrative Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower, and the
Administrative Agent shall be deemed to have automatically resigned if it is no
longer a Lender, such resignation in either case to be effective upon the
appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five days after the retiring
Administrative Agent gives notice of its intention to resign or ceases to be a
Lender, as the case may be.  The
Administrative Agent may be removed at any time with good cause by written
notice received by the Administrative Agent from the Required Lenders, such
removal to be effective on the date specified by the Required Lenders.  Upon any such resignation or removal, the
Required Lenders shall have the right to appoint, on behalf of the Borrower and
the Lenders, a successor Administrative Agent. 
If no successor Administrative Agent shall have been so appointed by the
Required Lenders within thirty days after a resigning Administrative Agent’s
giving notice of its intention to resign, then the resigning Administrative
Agent may appoint, on behalf of the Borrower and the Lenders, a successor
Administrative Agent.  If the
Administrative Agent has resigned or been removed and no successor
Administrative Agent has been appointed within 45 days, the Lenders shall
perform all the duties of the Administrative Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders.  No successor Administrative Agent shall be
deemed to be appointed hereunder until such successor


 


71

















 


Administrative Agent has accepted the appointment.  Any such successor Administrative Agent
shall be a commercial bank (or a subsidiary thereof) having capital and
retained earnings of at least $500,000,000, except that if the successor
Administrative Agent is a subsidiary of a bank, such capital and retained
earnings requirement shall apply only to the parent bank.  Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the resigning or removed
Administrative Agent.  Upon the
effectiveness of the resignation or removal of the Administrative Agent, the
resigning or removed Administrative Agent and the successor Administrative
Agent shall pro rate any agency fees, and the resigning or removed
Administrative Agent shall be discharged from its duties and obligations
thereafter arising hereunder and under the Loan Documents.  After the effectiveness of the resignation
or removal of an Administrative Agent, the provisions of this Article XI
shall continue in effect for the benefit of such Administrative Agent in
respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents.


 


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


 


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


 


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


 


11.15.                  Defaulting Lenders.  At such time as a Lender becomes a Defaulting Lender, such
Defaulting Lender’s right to vote on matters which are subject to the consent
or approval of the Required Lenders, each affected Lender or all Lenders, shall
be immediately suspended until such time as the Lender is no longer a
Defaulting Lender, except that the amount of the Commitment of the Defaulting
Lender may not be changed without its consent. 
If a Defaulting Lender has failed to fund its pro rata share of any
Advance and until such time as such Defaulting Lender subsequently funds its
pro rata share of such Advance, all Obligations owing to such Defaulting Lender
hereunder shall be subordinated in right of payment, as provided in the
following sentence, to the prior payment in full of all principal of, interest
on and fees relating to the Loans funded by the other Lenders in connection
with any such Advance in which the Defaulting Lender has not funded its pro
rata share (such principal, interest and fees being referred to as “Senior
Loans” for the purposes of this section). 
All amounts paid by the Borrower or the Guarantor and otherwise due to
be applied to the Obligations owing to such


 


72

















 


Defaulting Lender pursuant to the terms hereof shall be distributed by
the Administrative Agent to the other Lenders in accordance with their
respective pro rata shares (recalculated for the purposes hereof to exclude the
Defaulting Lender) until all Senior Loans have been paid in full.  After the Senior Loans have been paid in
full equitable adjustments will be made in connection with future payments by
the Borrower to the extent a portion of the Senior Loans had been repaid with
amounts that otherwise would have been distributed to a Defaulting Lender but
for the operation of this Section 11.15.  This provision governs only the relationship among the
Administrative Agent, each Defaulting Lender and the other Lenders; nothing
hereunder shall limit the obligation of the Borrower to repay all Loans in
accordance with the terms of this Agreement. 
The provisions of this section shall apply and be effective
regardless of whether a Default occurs and is continuing, and notwithstanding
(i) any other provision of this Agreement to the contrary, (ii) any instruction
of the Borrower as to its desired application of payments or (iii) the
suspension of such Defaulting Lender’s right to vote on matters which are
subject to the consent or approval of the Required Lenders or all Lenders.


 


 


ARTICLE XII


 


SETOFF;
RATABLE PAYMENTS


 


 


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


 


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


 


73

















 


ARTICLE XIII


 


BENEFIT
OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS


 


 


13.1.                        The terms and provisions of the Loan Documents shall be binding
upon and inure to the benefit of the Borrower and the Lenders and their
respective successors and assigns permitted hereby, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents without the prior written consent of each Lender, (ii) any
assignment by any Lender must be made in compliance with Section 13.3, and
(iii) any transfer by Participation must be made in compliance with
Section 13.2.  Any attempted
assignment or transfer by any party not made in compliance with this
Section 13.1 shall be null and void, unless such attempted assignment or
transfer is treated as a participation in accordance with
Section 13.3.2.  The parties to
this Agreement acknowledge that clause (ii) of this Section 13.1 relates
only to absolute assignments and this Section 13.1 does not prohibit
assignments creating security interests, including, without limitation, (x) any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a
Lender which is a Fund, any pledge or assignment of all or any portion of its
rights under this Agreement and any Note to its trustee in support of its
obligations to its trustee; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 13.3. 
The Administrative Agent may treat the Person which made any Loan or
which holds any Note as the owner thereof for all purposes hereof unless and
until such Person complies with Section 13.3; provided, however, that the
Administrative Agent may in its discretion (but shall not be required to)
follow instructions from the Person which made any Loan or which holds any Note
to direct payments relating to such Loan or Note to another Person.  Any assignee of the rights to any Loan or
any Note agrees by acceptance of such assignment to be bound by all the terms
and provisions of the Loan Documents. 
Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the owner of the
rights to any Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or assignee of the
rights to such Loan.


 


13.2.                        Participations.


 


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


 


74

















 


and directly with such Lender in connection with such Lender’s rights
and obligations under the Loan Documents.


 


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


 


13.2.3                  Benefit of Setoff.  The General Partner and the Borrower each
agrees that each Participant shall be deemed to have the right of setoff
provided in Section 12.1 in respect of its participating interest
in amounts owing under the Loan Documents to the same extent as if the amount
of its participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of setoff
provided in Section 12.1 with respect to the amount of
participating interests sold to each Participant.  The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 13.1,
agrees to share with each Lender, any amount received pursuant to the exercise
of its right of setoff, such amounts to be shared in accordance with Section 12.2
as if each Participant were a Lender.


 


13.3.                        Assignments.


 


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


 


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


 


75

















 


Loans).  Any consent required
under this Section 13.3.2 shall not be unreasonably withheld or
delayed.


 


13.3.3                  Effect; Effective Date.  Upon (i) delivery to the Administrative
Agent of a notice of assignment, substantially in the form attached as Exhibit
I to Exhibit H hereto (a “Notice of Assignment”), together
with any consents required by Section 13.3.2, and (ii) payment of a
$3,500 fee to the Administrative Agent for processing such assignment (unless
the assignment is to an affiliate of the Lender in which case no fee shall be
charged), such assignment shall become effective on the effective date
specified in such Notice of Assignment. 
The Notice of Assignment shall contain a representation by the Purchaser
to the effect that none of the consideration used to make the purchase of the
Commitment and Outstanding Credit Exposure under the applicable assignment
agreement are “plan assets” as defined under ERISA and that the rights and
interests of the Purchaser in and under the Loan Documents will not be “plan
assets” under ERISA.  On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document executed by the
Lenders and shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party thereto, and
the transferor Lender shall be released with respect to the Commitment and
Outstanding Credit Exposure assigned to such Purchaser without any further
consent or action by the Borrower, the other Lenders or the Administrative
Agent.  In the case of an assignment
covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a Lender hereunder but shall continue
to be entitled to the benefits of, and subject to, those provisions of this
Agreement and the other Loan Documents which survive payment of the Obligations
and termination of the applicable agreement. 
Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this Section 13.3 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section 13.2.  Upon the consummation of any assignment to a
Purchaser pursuant to this Section 13.3.2, the transferor Lender,
the Administrative Agent and the Borrower shall make appropriate arrangements
so that replacement Notes are issued to such transferor Lender and new Notes
or, as appropriate, replacement Notes, are issued to such Purchaser, in each
case in principal amounts reflecting their Commitment, as adjusted pursuant to
such assignment.


 


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


 


76

















 


13.4.                        Designation of Lender to Make
Competitive Bid Loans.  Any
Lender (each a “Designating Lender”) may at any time designate one or more
Designated Lenders to fund Competitive Bid Loans which the Designating Lender
is required to fund subject to the terms of this Section 13.4 and the
provisions in Section 13.3 shall not apply to such designation.  No Lender shall be entitled to make more
than two such designations.  The parties
to each such designation shall execute and deliver to the Administrative Agent,
for its acceptance, a Designation Agreement in the form of Exhibit I.  Upon its receipt of an appropriately
completed Designation Agreement executed by a Designating Lender and a Designee
representing that it is a Designated Lender, the Administrative Agent will
accept such Designation Agreement and give prompt notice thereof to the
Borrower, whereupon, from and after the effective date specified in the
Designation Agreement, the Designated Lender shall become a party to this
Agreement with a right to make Competitive Bid Loans on behalf of its
Designating Lender pursuant to Section 2.15 after the Borrower has
accepted a Competitive Bid (or a portion thereof) of the Designating
Lender.  Each Designating Lender shall
serve as the agent for the Designated Lender and shall on behalf of the
Designated Lender give and receive all communications and notices and take all
actions hereunder, including without limitation votes, approvals, waivers,
consents and amendments under or relating to this Agreement or the other Loan
Documents.  Any such notice,
communications, vote approval, waiver, consent or amendment shall be signed by
the Designating Lender as agent for the Designated Lender and shall not be
signed by the Designated Lender.  The
Borrower, the Administrative Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same, and
without any specific designation that the Designating Lender is signing in an
agency capacity.  The parties hereto
agree not to institute or join any other person in instituting against any
Designated Lender any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law, for one year and a day after the Facility
Termination Date.  This Section 13.4
shall survive the termination of this Agreement.


 


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


 


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


 


77

















 


ARTICLE XIV


 


NOTICES


 


 


14.1.                        Notices; Effectiveness; Electronic
Communication.


 


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


 


(i)                                     if
to the Borrower, or any other party to a Loan Document at its address or
telecopier number set forth on the signature page hereof;


 


(ii)                                  if
to the Administrative Agent, at its address or telecopier number set forth on
the signature page hereof;


 


(iii)                               if
to the Issuing Bank, at its address or telecopier number set forth on the
signature page hereof;


 


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


 


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


 


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


 


Unless the
Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of
an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement), provided that if such


 


78

















 


notice or other communication is not given during the normal business
hours of the recipient, such notice or communication shall be deemed to have
been given at the opening of business on the next Business Day for the recipient,
and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at
its e-mail address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website
address therefor.


 


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


 


 


ARTICLE XV


 


COUNTERPARTS


 


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


 


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


 


[INTENTIONAL END OF PAGE]


 


79

















 


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


 


 


	
   

  	
  DUKE REALTY LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DUKE REALTY CORPORATION,
  its

  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Matthew A. Cohoat

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
  Matthew A. Cohoat

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President and Chief

  Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  c/o Duke Realty Corporation

  
	
   

  	
  600 East 96th Street

  
	
   

  	
  Indianapolis, Indiana  46240

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention: 
  Matthew Cohoat

  
	
   

  	
  Telephone: 
  (317) 808-6065

  
	
   

  	
  Facsimile: 
  (317) 808-6795

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DUKE REALTY CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Matthew A. Cohoat

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Matthew A. Cohoat

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice President and Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  600 East 96th Street

  
	
   

  	
  Indianapolis, Indiana  46240

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention: 
  Matthew Cohoat

  
	
   

  	
  Telephone: 
  (317) 808-6065

  
	
   

  	
  Facsimile: 
  (317) 808-6795

  
												



 


S-1

















 


	
  Commitments:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  $60,000,000

  	
  BANK ONE, NA,
  Individually and as

  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott W. Sigmund

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Scott W. Sigmund

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Associate Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1 Bank One Plaza

  
	
   

  	
  Mail Code IL1-0315

  
	
   

  	
  Chicago, Illinois 60670

  
	
   

  	
   

  
	
   

  	
  Attention: 
  Charles Moffett

  
	
   

  	
  Telephone: 
  (312) 325-3128

  
	
   

  	
  Facsimile: 
  (312) 325-3122

  
								



 


S-2

















 


	
  $45,000,000

  	
  PNC BANK, NATIONAL ASSOCIATION,

  Individually and as Syndication Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Zachary K. Ellis

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Zachary K. Ellis

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Assistant Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Real Estate Banking

  
	
   

  	
  One PNC Plaza

  
	
   

  	
  249 Fifth Avenue

  
	
   

  	
  Mail Stop: 
  P1-POPP-19-2

  
	
   

  	
  Pittsburgh, Pennsylvania 15222

  
	
   

  	
   

  
	
   

  	
  Attention: 
  Zachary K. Ellis

  
	
   

  	
  Telephone: 
  (412) 762-5627

  
	
   

  	
  Facsimile: 
  (412) 762-6500

  
							



 


S-3

















 


	
  $45,000,000

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION,

  Individually and as Syndication Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Hoagland

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
  David Hoagland

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  301 South College Street

  
	
   

  	
  Charlotte, North Carolina  28288

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  David Hoagland

  
	
   

  	
  Telephone:

  	
  (704) 374-4809

  
	
   

  	
  Facsimile:

  	
  (704) 383-6205

  
									



 


S-4

















 


	
  $45,000,000

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION,

  Individually and as Syndication Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott Solis

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Scott Solis

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  123 North Wacker
  Drive

  
	
   

  	
  Suite 1900

  
	
   

  	
  Chicago, Illinois 60606

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  Scott Solis

  
	
   

  	
  Telephone:

  	
  (312) 269-4818

  
	
   

  	
  Facsimile:

  	
  (312) 782-0969

  
								



 


S-5

















 


	
  $40,000,000

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

  Managing Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael W. Edwards

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Michael W. Edwards

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Bank of America National Trust and

  
	
   

  	
  Savings
  Association

  
	
   

  	
  231
  S. LaSalle Street, 12th Floor

  
	
   

  	
  Chicago, IL  60697

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  Mark Mokelke

  
	
   

  	
  Telephone:

  	
  (312) 828-1739

  
	
   

  	
  Facsimile:

  	
  (312) 828-4970

  
							



 


S-6

















 


	
  $30,000,000

  	
  AMSOUTH BANK, Individually and as Co-Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lawrence Clark

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Lawrence Clark

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AmSouth Bank

  
	
   

  	
  1900 5th Avenue, North

  
	
   

  	
  AmSouth South Sonat Tower

  
	
   

  	
  15th Floor

  
	
   

  	
  Birmingham, AL 35288

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  Lawrence Clark

  
	
   

  	
  Telephone:

  	
  (205) 581-7493

  
	
   

  	
  Facsimile:

  	
  (205) 326-4075

  
								



 


S-7

















 


	
  $30,000,000

  	
  SUNTRUST BANK, Individually and as Co-Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nancy B. Richards

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Nancy B. Richards

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  8425 Boone Boulevard

  
	
   

  	
  Suite 820

  
	
   

  	
  Vienna, VA 
  22182

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  Nancy B. Richards

  
	
   

  	
  Telephone:

  	
  (703) 902-9039

  
	
   

  	
  Facsimile:

  	
  (703) 902-9245

  
							



 


S-8

















 


	
  $30,000,000

  	
  US BANK, Individually and as Co-Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John F. Olds

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  John F. Olds

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
    Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  One Financial Square

  
	
   

  	
  CN-KY-0850

  
	
   

  	
  Louisville, KY  40202-3322

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Bonnie Dutton

  
	
   

  	
  Telephone:

  	
  (502) 562-6629

  
	
   

  	
  Facsimile:

  	
  (502) 562-6448

  
								



 


S-9

















 


	
  $21,000,000

  	
  UBS LOAN FINANCE LLC, Individually and as
  Co-Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wilfred V. Saint

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Wilfred V. Saint

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
    Associate Director Banking Products

  Services, US

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joselin Fernandes

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Joselin Fernandes

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
    Associate Director Banking Products

  Services, US

  	
   

  
	
   

  	
   

  
	
   

  	
  677 Washington Boulevard

  
	
   

  	
  Stamford, CT  06901

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Marie Haddad

  
	
   

  	
  Telephone:

  	
  (203) 719-5609

  
	
   

  	
  Facsimile:

  	
  (203) 719-3888

  
											



 


S-10

















 


	
  $15,000,000

  	
  THE BANK OF NOVA SCOTIA, NEW YORK

  AGENCY, Individually and as Co-Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert H. Boese

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Robert H. Boese

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
  One Liberty Plaza

  
	
   

  	
  New York, NY  10006

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Neil Crawford

  
	
   

  	
  Telephone:

  	
  212-225-5170

  
	
   

  	
  Facsimile:

  	
  212-225-5166

  
							



 


S-11

















 


	
  $21,000,000

  	
  DEUTSCHE BANK TRUST COMPANY AMERICAS

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven P. Lapham

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Steven P. Lapham

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
  200 Crescent Court

  
	
   

  	
  Suite 550

  
	
   

  	
  Dallas, TX 
  75201

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Scott P. Speer

  
	
   

  	
  Telephone:

  	
  (214) 740-7903

  
	
   

  	
  Facsimile:

  	
  (214) 740-7910

  
								



 


S-12

















 


	
  $21,000,000

  	
  JPMORGAN CHASE BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marc E. Costantino

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Marc E. Costantino

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
    Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  270 Park Avenue

  
	
   

  	
  4th Floor

  
	
   

  	
  New York, NY  10017

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Marc E. Constantino

  
	
   

  	
  Telephone:

  	
  (212) 270-9554

  
	
   

  	
  Facsimile:

  	
  (212) 270-0213

  
							



 


S-13

















 


	
  $21,000,000

  	
  MERRILL LYNCH BANK USA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Louis
  Alder

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Louis Alder

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  15 West South Temple

  
	
   

  	
  Suite 300

  
	
   

  	
  Salt Lake City, UT  84101

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  Frank Stepan

  
	
   

  	
  Telephone:

  	
  (801) 526-8316

  
	
   

  	
  Facsimile:

  	
  (801) 531-7470

  
							



 


S-14

















 


	
  $21,000,000

  	
  MORGAN STANLEY BANK

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Jaap Tonckens

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Jaap Tonckens

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Executive Director

  	
   

  
	
   

  	
   

  
	
   

  	
  1633 Broadway

  
	
   

  	
  25th Floor

  
	
   

  	
  New York, NY  10019

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  Erma Dell’Aquila

  
	
   

  	
  Telephone:

  	
  (212) 537-1532

  
	
   

  	
  Facsimile:

  	
  (212) 537-1867

  
							



 


S-15

















 


	
  $15,000,000

  	
  NATIONAL CITY BANK OF INDIANA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Michael Shockey

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  J. Michael Shockey

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  101 West Washington

  
	
   

  	
  Suite 200E

  
	
   

  	
  Indianapolis, IN  46255

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  David Bartus

  
	
   

  	
  Telephone:

  	
  (317) 267-3755

  
	
   

  	
  Facsimile:

  	
  (317) 267-3987

  
							



 


S-16

















 


	
  $15,000,000

  	
  THE NORTHERN
  TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Wiarda

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Robert Wiarda

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  50 South LaSalle Street

  
	
   

  	
  Chicago, Illinois  60675

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Robert Wiarda

  
	
   

  	
  Telephone:

  	
  (312) 444-3380

  
	
   

  	
  Facsimile:

  	
  (312) 444-7028

  
								



 


S-17

















 


	
  $15,000,000

  	
  SCOTIABANC INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William E. Zarrett

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  William E. Zarrett

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  600 Peachtree Street, NE

  
	
   

  	
  Suite 2700

  
	
   

  	
  Atlanta, GA  30308

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  William Zarrett

  
	
   

  	
  Telephone:

  	
  404-877-1504

  
	
   

  	
  Facsimile:

  	
  404-888-8995

  
							



 


S-18

















 


	
  $10,000,000

  	
  FIFTH THIRD BANK

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David O’Neal

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  David O’Neal

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  250 North Illinois Street

  
	
   

  	
  Suite 1000

  
	
   

  	
  Indianapolis, IN  46204

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  David O’Neal

  
	
   

  	
  Telephone:

  	
  317-383-2288

  
	
   

  	
  Facsimile:

  	
  317-383-2764

  
								



 


S-19

















 


EXHIBIT A


 


PRICING SCHEDULE


 


	
  Applicable

  Margin

  	
   

  	
  Level I

  Status

  	
   

  	
  Level II

  Status

  	
   

  	
  Level III

  Status

  	
   

  	
  Level IV

  Status

  	
   

  	
  Level V

  Status

  	
   

  
	
  LIBOR

  	
   

  	
  0.525

  	
  %

  	
  0.60

  	
  %

  	
  0.725

  	
  %

  	
  0.90

  	
  %

  	
  1.30

  	
  %

  
	
  ABR

  	
   

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.30

  	
  %

  



 


	
  Applicable

  Fee Rate

  	
   

  	
  Level I

  Status

  	
   

  	
  Level II

  Status

  	
   

  	
  Level III

  Status

  	
   

  	
  Level IV

  Status

  	
   

  	
  Level V

  Status

  	
   

  
	
  Letter of Credit
  Fee

  	
   

  	
  0.525

  	
  %

  	
  0.60

  	
  %

  	
  0.725

  	
  %

  	
  0.90

  	
  %

  	
  1.30

  	
  %

  
	
  Facility Fee

  	
   

  	
  0.125

  	
  %

  	
  0.15

  	
  %

  	
  0.175

  	
  %

  	
  0.20

  	
  %

  	
  0.25

  	
  %

  



 


For the purposes of this Schedule, the following terms
have the following meanings, subject to the final paragraph of this Schedule:


 


“Fitch Rating” means, at any time, the rating issued
by Fitch, Inc., and then in effect with respect to the Borrower’s senior
unsecured long-term debt securities without third-party credit enhancement.


 


“Level I Status” exists at any date if, on such date,
the Borrower’s Moody’s Rating is A3 or better and
the Borrower’s Fitch Rating is A- or better.


 


“Level II Status” exists at any date if, on such date,
(i) the Borrower has not qualified for Level I Status and (ii) the Borrower’s
Moody’s Rating is Baa1 or better and
the Borrower’s Fitch Rating is BBB+ or better.


 


“Level III Status” exists at any date if, on such
date, (i) the Borrower has not qualified for Level I Status or Level II Status
and (ii) the Borrower’s Moody’s Rating is Baa2 or better and the Borrower’s Fitch Rating is BBB or
better.


 


“Level IV Status” exists at any date if, on such date,
(i) the Borrower has not qualified for Level I Status, Level II Status, or
Level III Status and (ii) the Borrower’s Moody’s Rating is Baa3 or better and the Borrower’s Fitch Rating is BBB- or
better.


 


“Level V Status” exists at any date if, on such date,
the Borrower has not qualified for Level I Status, Level II Status, Level III
Status, or Level IV Status.


 


“Moody’s Rating” means, at any time, the rating issued
by Moody’s Investors Service, Inc. and then in effect with respect to the
Borrower’s senior unsecured long-term debt securities without third-party
credit enhancement.


 


“Status” means Level I Status, Level II Status, Level
III Status, Level IV Status, or Level V Status.


 


The Applicable Margin and Applicable Fee Rate shall be
determined in accordance with the foregoing table based on the Borrower’s
Status as determined from its then-current Moody’s and Fitch Ratings.  The


 


A-1

















 


credit
rating in effect on any date for the purposes of this Schedule is that in
effect at the close of business on such date. 
If at any time the Borrower has no Moody’s Rating or no Fitch Rating,
Level V Status shall exist.


 


A-2

















 


EXHIBIT B-1


 


NOTE


 




	
  , 2003

  






 


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


 


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


 


This Note is one
of the Notes issued pursuant to, and is entitled to the benefits of, the Fourth
Amended and Restated Revolving Credit Agreement (as the same may be amended or
modified, the “Agreement”), dated as of                                 ,
2003, among the Borrower, Duke-Realty Corporation, as Guarantor and General
Partner, Bank One, NA, individually and as the Administrative Agent, and the
other lenders named therein, to which Agreement reference is hereby made for a
statement of the terms and conditions governing this Note, including the terms
and conditions under which this Note may be prepaid or its maturity date
accelerated.  Capitalized terms used
herein and not otherwise defined herein are used with the meanings attributed
to them in the Agreement.


 


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


 


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


 


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


 


B1-1

















 


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


 


 


	
   

  	
  DUKE REALTY LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DUKE REALTY CORPORATION, General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
						



 


B1-2

















 


SCHEDULE OF LOANS AND
PAYMENTS OF PRINCIPAL

TO

NOTE OF DUKE REALTY LIMITED PARTNERSHIP


DATED
              
, 2003


 


	
  Date

  	
   

  	
  Principal

  Amount

  of Loan

  	
   

  	
  Maturity

  of Interest

  Period

  	
   

  	
  Maturity

  Principal

  Amount Paid

  	
   

  	
  Unpaid

  Balance

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B1-3

















 


EXHIBIT B-2


 


FORM OF COMPETITIVE BID NOTE


 


                  ,
2003


 


 


On or before the
last day of each “Interest Period” applicable to a “Competitive Bid Loan”, as
defined in that certain Fourth Amended and Restated Revolving Credit Agreement
dated as of                      ,
2003 (as the same may be amended or modified, the “Agreement”) between
DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership (“Borrower”),
DUKE REALTY CORPORATION, an Indiana corporation (“Guarantor”), BANK ONE,
NA, a national bank organized under the laws of the United States of America,
individually and as Administrative Agent for the Lenders (as such terms are
defined in the Agreement), and the other lenders identified therein, Borrower
promises to pay to the order of                                      (the
“Lender”), or its successors and assigns, the unpaid principal amount of
such Competitive Bid Loan made by the Lender to the Borrower pursuant to Section 2.15
of the Agreement, in immediately available funds at the office of the
Administrative Agent in Chicago, Illinois, together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the
Agreement.  The Borrower shall pay any
remaining unpaid principal amount of such Competitive Bid Loans under this
Competitive Bid Note (“Note”) in full on or before the Facility
Termination in accordance with the terms of the Agreement.


 


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


 


This Note is
issued pursuant to, and is entitled to the security under and benefits of, the
Agreement and the other Loan Documents, to which Agreement and Loan Documents,
as they may be amended from time to time, reference is hereby made for, inter
alia, a statement of the terms and conditions under which this Note may
be prepaid or its maturity date accelerated. 
Capitalized terms used herein and not otherwise defined herein are used
with the meanings attributed to them in the Agreement.


 


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


 


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


 


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


 


B2-1

















 


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


 


	
   

  	
  DUKE REALTY LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DUKE REALTY CORPORATION, its General
  Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
						



 


B2-2

















 


PAYMENTS OF
PRINCIPAL


 


	
  Date

  	
   

  	
  Unpaid

  Principal

  Balance

  	
   

  	
  Notation

  Made by

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B2-3

















 


EXHIBIT C-1


 


FORM OF COMPETITIVE BID QUOTE REQUEST


 


(Section 2.15(b))


 


	
  To:

  	
   

  	
  Bank One, NA,

  as administrative agent (the “Agent”)

  
	
   

  	
   

  	
   

  
	
  From:

  	
   

  	
  Duke Realty Limited Partnership
  (“Borrower”)

  
	
   

  	
   

  	
   

  
	
  Re:

  	
   

  	
  Fourth Amended and Restated Credit
  Agreement dated as
  of                   ,
  2003, as amended among the Borrower, the Lenders from time to time party
  thereto, Bank One, NA, as Administrative Agent for the Lenders (as amended,
  supplemented or otherwise modified from time to time through the date hereof,
  the “Agreement”)

  



 


1.                                       Capitalized
terms used herein have the meanings assigned to them in the Agreement.


 


2.                                       We
hereby give notice pursuant to Section 2.15(b) of the Agreement that we
request Competitive Bid Quotes for the following proposed Competitive Bid
Loan(s):


 


Borrowing Date:                                  ,
200  


 


	
  Principal Amount(1)

  	
   

  	
  Interest Period(2)

  



 


3.                                       Such
Competitive Bid Quotes should offer [a Competitive LIBOR Margin]  [an Absolute
Rate].


 


 












(1)                                  Amount
must be at least $10,000,000 and an integral multiple of $1,000,000.


 


(2)                                  One,
two, three or six months subject to the provisions of the definitions of LIBOR
Interest Period and Absolute Interest Period.


 


C1-1

















 


(4)                                  Upon
acceptance by the undersigned of any or all of the Competitive Bid Loans
offered by Lenders in response to this request, the undersigned shall be deemed
to affirm as of the Borrowing Date thereof the representations and warranties
made in Article VI of the Agreement.


 


	
   

  	
  DUKE REALTY LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DUKE REALTY CORPORATION, its General
  Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
						



 


C1-2

















 


EXHIBIT C-2


 


INVITATION FOR COMPETITIVE BID QUOTES


(Section 2.15(c))


 


	
  To:

  	
   

  	
  Each of the Lenders party to

  the Agreement referred to below

  
	
   

  	
   

  	
   

  
	
  Re:

  	
   

  	
  Invitation for Competitive Bid Quotes to

  Duke Realty Limited Partnership (the “Borrower”)

  



 


 


Pursuant to Section 2.15(c)
of the Fourth Amended and Restated Credit Agreement dated as of
                     ,
2003 as amended from time to time, among the Borrower, the lenders from time to
time party thereto, and Bank One, NA as Administrative Agent for the Lenders
(as amended, supplemented or otherwise modified from time to time through the
date hereof, the “Agreement”), we are pleased on behalf of the Borrower to
invite you to submit Competitive Bid Quotes to the Borrower for the following
proposed Competitive Bid Loan(s):


 


Borrowing
Date:                                 ,
200  


 


	
  Principal Amount

  	
   

  	
  Interest Period

  



 


Such Competitive Bid
Quotes should offer [a Competitive LIBOR Margin]  [an Absolute
Rate].  Your Competitive Bid
Quote must comply with Section 2.15(c) of the Agreement and the
foregoing.  Capitalized terms used
herein have the meanings assigned to them in the Agreement.


 


Please respond to this
invitation by no later than [9:00 a.m.] (Chicago time) on
                         ,
200  .


 


	
   

  	
  BANK ONE, NA, as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


C2-1

















 


EXHIBIT C-3


 


COMPETITIVE BID QUOTE


(Section 2.15(d))


 


                   ,
200  


 


 


	
  To:

  	
   

  	
  Bank One, NA,

  as Administrative Agent

  
	
   

  	
   

  	
   

  
	
  Re:

  	
   

  	
  Competitive Bid Quote to Duke Realty
  Limited Partnership

  (the “Borrower”)

  



 


 


In response to your
invitation on behalf of the Borrower dated
                            ,
200  , we hereby make the following Competitive Bid Quote pursuant to
Section 2.15(d) of the Agreement hereinafter referred to and on the
following terms:


 


1.                                       Quoting
Lender:                                                                                                                                                                       


 


2..                                    Person
to contact at Quoting Lender:


 


3.                                       Borrowing
Date:                                                                                                                                                                       (1)


 


4.                                       We
hereby offer to make Competitive Bid Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:


 


	
  Principal

  Amount(2)

  	
   

  	
  Interest

  Period(3)

  	
   

  	
  [Competitive

  LIBOR Margin(4)]

  	
   

  	
  [Absolute

  Rate(5)]

  	
   

  	
  Minimum

  Amount(6)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 












(1)                                  As
specified in the related Invitation For Competitive Bid Quotes.


 


(2)                                  Principal
amount bid for each Interest Period may not exceed the principal amount
requested.  Bids must be made for at
least $5,000,000 and integral multiples of $1,000,000.


 


(3)                                  One,
two, three or six months, as specified in the related Invitation For
Competitive Bid Quotes.


 


(4)                                  Competitive
LIBOR Margin for the applicable LIBOR Interest Period.  Specify percentage (rounded to the nearest
1/100 of 1%) and specify whether “PLUS” or “MINUS”.


 


(5)                                  Specify
rate of interest per annum (rounded to the nearest 1/100 of 1%).


 


C3-1

















 


We understand and agree
that the offer(s) set forth above, subject to the satisfaction of the
applicable conditions set forth in the Fourth Amended and Restated Credit
Agreement dated as of
                      ,
2003, among the Borrower, the lenders from time to time party thereto, and Bank
One,  NA, as Administrative Agent for
the lenders (as amended, supplemented or otherwise modified from time to time
through the date hereof, the “Agreement”), irrevocably obligates us to make the
Competitive Bid Loan(s) for which any offer(s) are accepted, in whole or in
part.  Capitalized terms used herein and
not otherwise defined herein shall have their meanings as defined in the
Agreement.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [NAME OF LENDER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 












(6)                                  Specify
minimum amount, if any, which the Borrower may accept (see Section 2.15(d)(ii)(d)).


 


C3-2

















 


EXHIBIT D


 


FORM OF OPINION


 




	
                        ,
  200  

  	
   

  






 




	
  The Administrative Agent and

  
	
  the Lenders
  who are parties to the

  
	
  Credit
  Agreement described below

  






 


Gentlemen/Ladies:


 


We are counsel for Duke
Realty Limited Partnership, an Indiana limited partnership (the “Borrower”),
and Duke Corporation, an Indiana corporation (the “General Partner” and,
collectively with the Borrower, the “Duke Entities”), and have represented the
Duke Entities in connection with their execution and delivery of a Fourth
Amended and Restated Credit Agreement among the Duke Entities, Bank One, NA,
individually, and as Administrative Agent, and the Lenders named therein,
providing for Advances in an aggregate principal amount of $500,000,000 with
the ability to increase such amount to an amount not exceeding $700,000,000 at
any one time outstanding and dated as of
             (the
“Agreement”).  All capitalized terms
used in this opinion and not otherwise defined shall have the meanings
attributed to them in the Agreement.


 


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


 


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


 


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


 


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


 


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


 


D-1

















 


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


 


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


 


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


 


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


 


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


 


We are admitted to the
bar of the State of North Carolina and are not licensed to practice law in any
other state.  Our opinion is limited to
the laws of North Carolina, federal law, and the corporate and limited partnership
laws of the State of Indiana.  To the
extent the Loan Documents are governed by the laws of the State of Illinois, we
have assumed that they do not differ materially for the purposes of our opinion
from the laws of the State of North Carolina.


 


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


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  



 


D-2

















 


EXHIBIT E


 


LOAN/CREDIT
RELATED MONEY TRANSFER INSTRUCTION


 


 




	
  To: 
  Bank One, NA,

  
	
  as Agent
  (the “Agent”) under the Agreement

  
	
  Described
  Below

  






 


Re:                               Fourth
Amended and Restated Credit Agreement, dated as of
                    ,
2003 (as amended, modified, renewed or extended from time to time, the “Agreement”),
among Duke Realty Limited Partnership, an Indiana limited partnership (the
“Borrower”), Duke Realty Corporation, an Indiana corporation, Bank One, NA,
individually, and as Administrative Agent, and the Lenders named therein.  Terms used herein and not otherwise defined
shall have the meanings assigned thereto in the Agreement.


 


The Agent is
specifically authorized and directed to act upon the following standing money
transfer instructions with respect to the proceeds of Advances or other
extensions of credit from time to time until receipt by the Agent of a specific
written revocation of such instructions by the Borrower, provided, however,
that the Agent may otherwise transfer funds as hereafter directed in writing by
the Borrower in accordance with Section 14.1 of the Credit
Agreement or based on any telephonic notice made in accordance with Section 2.18
of the Agreement.


 


	
  Facility Identification Number(s)

  	
   

  	 

	
   

  	
   

  	 

	
  Customer/Account Name

  	
   

  	 

	
   

  	
   

  	 

	
  Transfer Funds To

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  For Account No.

  	
   

  	 

	
   

  	
   

  	 

	
  Reference/Attention To

  	
   

  	 

	
   

  	
   

  	 

	
  Authorized
  Officer (Customer Representative)

  	
   

  	
  Date

  	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
   

  	 

	
  (Please Print)

  	
   

  	
  Signature

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  Bank Officer Name

  	
   

  	
  Date

  	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
   

  
	
  (Please Print)

  	
   

  	
  Signature

  	 

											



 


(Deliver Completed Form to
Credit Support Staff For Immediate Processing)


 


E-1

















 


EXHIBIT F


 


COMPLIANCE CERTIFICATE


 




	
  To:                              The Administrative
  Agent and the Lenders

  
	
  who are parties to the Credit Agreement
  described below

  






 


This Compliance
Certificate is furnished pursuant to that certain Fourth Amended and Restated
Credit Agreement, dated as of
                    ,
           2003 (as amended,
modified, renewed or extended from time to time, the “Agreement”) among Duke
Realty Limited Partnership, an Indiana limited partnership (the “Borrower”),
Duke Realty Corporation, an Indiana corporation (“General Partner”), Bank One,
NA, individually, and as Administrative Agent, and the Lenders named
therein.  Unless otherwise defined
herein, capitalized terms used in this Compliance Certificate have the meanings
ascribed thereto in the Agreement.


 


THE UNDERSIGNED HEREBY CERTIFIES THAT:


 


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


 


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


 


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


 


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


 


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


 


 


 


F-1

















 


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


 


 


	
   

  	
  DUKE REALTY LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DUKE REALTY CORPORATION, its General
  Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


F-2

















 


[SAMPLE]


 


SCHEDULE I TO COMPLIANCE
CERTIFICATE


 


Schedule of Compliance as
of            with


Provisions
     ,      ,
      and       of the
Agreement


 


F-3

















 


EXHIBIT H


 


ASSIGNMENT AND ASSUMPTION AGREEMENT


 


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


 


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


 




	
  1.                                       Assignor:

  
	
   

  
	
  2.                                       Assignee:

  	
  [and is an
  Affiliate/Approved

  
	
   

  
	
   

  	
  Fund of [identify Lender](1)

  
	
   

  
	
  3.                                       Borrower(s):

  
	
   

  
	
  4.                                       Administrative
  Agent:

  	
  , as the administrative agent under the
  Credit Agreement.

  
	
   

  
	
  5.                                       Credit
  Agreement: The [amount] Credit Agreement dated as of

  	
  among

  
					






 


H-1

















 


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


 












(1) Select as applicable.


 


6.                                       Assigned
Interest:


 


	
  Facility Assigned

  	
   

  	
  Aggregate Amount of 

  Commitment/Loans for all 

  Lenders*

  	
   

  	
  Amount of 

  Commitment/Loans 

  Assigned*

  	
   

  	
  Percentage Assigned of 

  Commitment/Loans(2)

  	
   

  
	
   

  	
  (3)

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  



 


	
  7.                                       Trade Date:

  	
  (4)

  	
   

  



 


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


 


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


 


	
   

  	
  ASSIGNOR

  
	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  [Consented to and](5)  Accepted:

  	
   

  
	
   

  	
   

  
	
  [NAME OF ADMINISTRATIVE AGENT],

  as Administrative Agent

  	
   

  
						



 


H-2

















 


	
  By:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
				



 


[Consented to:](6)


 












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


 


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


 


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


 


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


 


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


 


(6) To be added only if the consent of the Borrower and/or other
parties (e.g. Swingline Lender, L/C Issuer) is required by the terms of the
Credit Agreement.


 


	
  [NAME OF RELEVANT PARTY]

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
				



 


H-3

















 


ANNEX 1


TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION


 


1.                                       Representations
and Warranties.


 


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


 


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


 


H-4

















 


their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.


 


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


 


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


 


H-5

















 


ADMINISTRATIVE QUESTIONNAIRE


 


(Schedule to be supplied
by Closing Unit or Trading Documentation Unit)


 


(For Forms for Primary
Syndication call Peterine Svoboda at 312-732-8844)


 


(For Forms after Primary
Syndication call Jim Bartz at 312-732-1242)


 


US AND NON-US TAX INFORMATION
REPORTING REQUIREMENTS


 


(Schedule to be supplied
by Closing Unit or Trading Documentation Unit)


 


(For Forms for Primary
Syndication call Peterine Svoboda at 312-732-8844)


 


(For Forms after Primary
Syndication call Jim Bartz at 312-732-1242)


 


H-6

















 


EXHIBIT I


 


DESIGNATION AGREEMENT


 


Dated
            ,
200   


 


Reference is made to the
Fourth Amended and Restated Credit Agreement dated as of
                       
   , 2003 (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”) among Duke Realty Limited Partnership, an
Indiana limited partnership (the “Borrower”), Duke Realty Corporation, an
Indiana corporation, the Banks parties thereto, and Bank One, NA, as
Administrative Agent (the “Administrative Agent”) for the Lenders.  Terms defined in the Credit Agreement are
used herein with the same meaning.


 


                                                                                (the
“Designor”),                              (the
“Designee”), the Administrative Agent and the Borrower agree as follows:


 


1.               The
Designor hereby designates the Designee, and the Designee hereby accepts such
designation, to have a right to make Competitive Bid Loans pursuant to
Section 2.15 of the Credit Agreement. 
Any assignment by Designor to Designee of its rights to make a
Competitive Bid Loan pursuant to such Section 2.15 shall be effective at
the time of the funding for such Competitive Bid Loan and not before such time.


 


2.                                       The
Designor makes no representation or warranty and assumes no responsibility
pursuant to this Designation Agreement with respect to (a) any statements,
warranties or representations made in or in connection with any Loan Document
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of any Loan Document or any other instrument and document furnished
pursuant thereto and (b) the financial condition of the Borrower or any
Loan Party of the performance or observance by the Borrower or any Loan Party
or any of their respective obligations under any Loan Document or any other
instrument or document furnished pursuant thereto.  (It is acknowledged that the Designor may make representations
and warranties of the type described above in other agreements to which the
Designor is a party.)


 


3.                                       The
Designee (a) confirms that it has received a copy of each Loan Document,
together with copies of the financial statements referred to in
Section 7.1 of the Credit Agreement and such other documents and
information as it has deemed appropriate to make its own independent credit
analysis and decision to enter into this Designation Agreement; (b) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Designor or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under Loan Document; (c) confirms
that it is a Designated Lender; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under any Loan Document as are delegated to the
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (e) agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of any Loan Document are required to be performed by it as a Lender.


 


I-1

















 


4.                                       The
Designee hereby appoints Designor as Designee’s agent and attorney in fact, and
grants to Designor an irrevocable power of attorney, to deliver and receive all
communications and notices under the Credit Agreement and other Loan Documents
and to exercise on Designee’s behalf all rights to vote and to grant and made
approvals, waivers, consents or amendment to or under the Credit Agreement or other
Loan Documents.  Any document executed
by the Designor on the Designee’s behalf in connection with the Credit
Agreement or other Loan Documents shall be binding on the Designee.  The Borrower, the Administrative Agent and
each of the Banks may rely on and are beneficiaries of the preceding
provisions.


 


5.                                       Following
the execution of this Designation Agreement by the Designor and its Designee,
it will be delivered to the Administrative Agent for acceptance and recording
by the Administrative Agent.  The effective
date for this Designation Agreement (the “Effective Date”) shall be the date of
acceptance hereof by the Administrative Agent, unless otherwise specified on
the signature page thereto.


 


6.                                       Neither
the Administrative Agent nor the Borrower shall institute, or join any other
person in instituting, against the Designee any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding under
any federal or state bankruptcy or similar law at any time that the Designee
has any outstanding debt or other securities which are rated by Fitch, Moody’s
or any other rating agency or at any time within one year and one day after the
date such debt or other securities have been repaid in full.


 


7.                                       The
Designor unconditionally agrees to pay or reimburse the Designee and save the
Designee harmless against all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed or asserted by any of the
parties to the Loan Documents against the Designee, in its capacity as such, in
any way relating to or arising out of this Designation Agreement or any other
Loan Documents or any action taken or omitted by the Designee hereunder or thereunder,
provided that the Designor shall not be liable for any portion of such
liabilities, obligations, losses, damage, penalties, actions, judgments, suits,
costs, expenses or disbursements if the same results from the Designee’s gross
negligence or willful misconduct.


 


8.                                       Upon
such acceptance and recording by the Administrative Agent, as of the Effective
Date, the Designee shall be a party to the Credit Agreement with a right to
make Competitive Bid Loans as pursuant to Section 2.15 of the Credit
Agreement and the rights and obligations of a Lender related thereto.


 


9.                                       This
Designation Agreement shall be governed by, and construed in accordance with,
the laws of the State of Illinois, without reference to the provisions thereof
regarding conflicts of law.


 


10.                                 This
Designation Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. 
Delivery of an executed counterpart of a signature page to this
Designation 


 


I-2

















 


Agreement
by facsimile transmission shall be effective as of delivery of a manually
executed counterpart of this Designation Agreement.


 


I-3

















 


IN WITNESS WHEREOF, the Designor and the
Designee, intending to be legally bound, have caused this Designation Agreement
to be executed by their officers thereunto duly authorized as of the date first
above written.


 


Effective
Date(1)                                       ,
200  


 


	
   

  	
  as Designor

  
	
   

  
	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  as Designee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Applicable Lending Office (and address for
  notices):

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Re: 
  Account No.

  	
   

  
									



 












(1)                                  This
date should be no earlier than five Business Days after the delivery of this
Designation Agreement to the Administrative Agent.


 


I-4

















 


	
  Accepted this
         day of
                           ,
  200  

  
	
   

  	
   

  
	
  BANK ONE, NA,
as Administrative Agent

  	
  DUKE REALTY LIMITED

  PARTNERSHIP

  
	
   

  	
  By:

  	
  DUKE REALTY CORPORATION, its

  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
											



 


I-5

















 


EXHIBIT J


 


AMENDMENT TO FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT


 


This Amendment to the
Fourth Amended and Restated Revolving Credit Agreement (the “Amendment”) is
made as of
                               ,
             ,
by and among Duke Realty Limited Partnership (“Borrower”), Duke Realty
Corporation (“Guarantor”), Bank One, NA, individually and as “Administrative
Agent”, and one or more new or existing “Lenders” shown on the signature pages
hereof.


 


R  E  C  I
T  A  L  S


 


A.                                   Borrower,
Guarantor, Administrative Agent and certain other Lenders have entered into an
Fourth Amended and Restated Credit Agreement dated as of
                     
     , 2004 (as amended, the “Credit Agreement”).  All capitalized terms used herein and not
otherwise defined shall have the meanings given to them in the Credit
Agreement.


 


B.                                     Pursuant
to the terms of the Credit Agreement, the Lenders initially agreed to provide
Borrower with a revolving credit facility in an aggregate principal amount of up
to $500,000,000.  The Borrower,
Guarantor, the Administrative Agent and the Lenders now desire to amend the
Credit Agreement in order to, among other things (i) increase the
Aggregate Commitment to $         ,000,000;
and (ii) admit [name of new banks] as “Lenders” under
the Credit Agreement.


 


NOW, THEREFORE, in
consideration of the foregoing Recitals and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


AGREEMENTS


 


1.                                       The
foregoing Recitals to this Amendment hereby are incorporated into and made part
of this Amendment.


 


2.                                       From
and after
                        ,
          (the “Effective Date”)
(i) [name of new banks] shall be considered as “Lenders” under
the Credit Agreement and the Loan Documents, and (ii) [name of existing lenders]
shall each be deemed to have increased its Commitment to the amount shown next
to their respective signatures on the signature pages of this Amendment, each
having a Commitment in the amount shown next to their respective signatures on
the signature pages of this Amendment. 
The Borrower shall, on or before the Effective Date, execute and deliver
to each of such new or existing Lenders a new or amended and restated Note in
the amount of such Commitment (and in the case of a new Lender, a Competitive
Bid Note as well).


 


3.                                       From
and after the Effective Date, the Aggregate Commitment shall equal
              Million Dollars
($            ,000,000).


 


J-1

















 


4.                                       For
purposes of Section 13.1 of the Credit Agreement (Giving Notice), the
address(es) and facsimile number(s) for [name of new banks] shall be as
specified below their respective signature(s) on the signature pages of this
Amendment.


 


5.                                       The
Borrower and Guarantor hereby represent and warrant that, as of the Effective
Date, there is no Default or Unmatured Default, the representations and
warranties contained in Article VI of the Agreement are true and correct
as of such date and the Borrower and Guarantor have no offsets or claims
against any of the Lenders.


 


6.                                       As
expressly modified as provided herein, the Credit Agreement shall continue in
full force and effect, and Guarantor reaffirms all of its obligations under the
Guaranty.


 


7.                                       This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any of the parties hereto may
execute this Amendment by signing any such counterpart.


 


J-2

















 


IN
WITNESS WHEREOF, the parties have executed and delivered this
Amendment as of the date first written above.


 


	
  DUKE REALTY LIMITED PARTNERSHIP

  	
  BANK ONE, NA, Individually and as 

  Administrative Agent

  
	
   

  	
   

  
	
  By: 

  	
  DUKE REALTY CORPORATION, its 

  General Partner

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
  Print Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  c/o Duke Realty Corporation

  	
   

  
	
  600 East 96th Street

  	
   

  
	
  Indianapolis, Indiana  46240

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
  Matthew Cohoat

  	
  1 Bank One National Plaza

  
	
  Telephone:

  	
  (317) 808-6065

  	
  Mail Suite Il 1-0315 

  
	
  Facsimile:

  	
  (317) 808-6795

  	
  Chicago, Illinois  60670 

  
	
   

  	
  Attention:

  	
  Large Corporate Real Estate

  
	
   

  	
  Telephone:

  	
  (312) 325-3128

  
	
   

  	
  Facsimile:

  	
  (312) 325-3122

  
	
   

  	
   

  
	
  DUKE REALTY CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  c/o Duke Realty Corporation

  	
   

  
	
  600 East 96th Street

  	
   

  
	
  Indianapolis, Indiana  46240

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
  Matthew Cohoat

  	
   

  
	
  Telephone:

  	
  (317) 808-6065

  	
   

  
	
  Facsimile:

  	
  (317) 808-6795

  	
   

  
																



 


J-3

















 


	
  Amount of Commitment:  $

  	
  [NAME OF NEW LENDER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Address of New Lender]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
  Telephone:

  	
   

  	
   

  
	
   

  	
  Facsimile:

  	
   

  	
   

  
									



 


J-4

















 


EXHIBIT K


 


FORM OF
SUBSIDIARY GUARANTY


 


 


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


 


 


RECITALS


 


A.                                   Duke Realty Limited
Partnership, an Indiana limited partnership (“Borrower”), Duke Realty
Corporation, an Indiana corporation (the “General Partner”), Banc One Capital
Markets, Inc. (“BOCM”) as Sole Lead Arranger and Book Runner, Bank One, NA,
individually, and as Administrative Agent, and the Lenders have entered into a
Fourth Amended and Restated Revolving Credit Agreement dated as of
       , 2003 (as amended, modified or
restated from time to time, the “Credit Agreement”) pursuant to which
the Lenders have agreed to provide Borrower with a revolving credit facility in
an aggregate principal amount of up to $700,000,000 (the “Facility”).  All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the Credit
Agreement.


 


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


 


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


 


 


AGREEMENTS


 


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


 


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


 


K-1

















 


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


 


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


 


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


 


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


 


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


 


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


 


K-2

















 


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


 


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


 


K-3

















 


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


 


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


 


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


 


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


 


K-4

















 


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


 


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


 


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


 


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


 


K-5

















 


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


 


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


 


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


 




	
  To Guarantor:

  
	
   

  	
   

  
	
   

  	
  c/o Duke Realty Corporation

  
	
   

  	
  600 East 96th Street

  
	
   

  	
  Indianapolis, Indiana 46240

  
	
   

  	
  Attention:

  	
  Matthew Cohoat

  
	
   

  	
   

  	
   

  
	
   

  	
  Telephone:

  	
  (317) 808-6065

  	 

	
   

  	
  Facsimile:

  	
  (317) 808-6794

  	 

	
   

  
	
  With a copy to:

  
	
   

  	
   

  
	
   

  	
  Howard L. Feinsand

  
	
   

  	
  3750 Shackeleford Road

  
	
   

  	
  Duluth, GA 
  30096

  
	
   

  	
   

  
	
   

  	
  Telephone:

  	
  770-717-3267

  
	
   

  	
  Facsimile:

  	
  770-717-3314

  
						






 


K-6

















 




	
  To Bank One, NA as Administrative Agent and
  as a Lender:

  	 

	 
	
   

  	
   

  
	 
	
   

  	
  Bank One, NA

  
	 
	
   

  	
  One Bank One Plaza

  
	 
	
   

  	
   

  
	 
	
   

  	
  Mail Code IL1-0315

  
	 
	
   

  	
  Chicago, Illinois  60670

  
	 
	
   

  	
  Attention:

  	
  Charles Moffett

  
	 
	
   

  	
   

  
	 
	
   

  	
  Telephone:

  	
  (312) 325-3128

  
	 
	
   

  	
  Facsimile:

  	
  (312) 325-3122

  
	 
	
   

  
	 
	
  With a copy to:

  
	 
	
   

  	
   

  
	 
	
   

  	
  Sonnenschein Nath & Rosenthal LLP

  
	 
	
   

  	
  8000 Sears Tower

  
	 
	
   

  	
  Chicago, Illinois  60606

  
	 
	
   

  	
  Attention:

  	
  Steven R. Davidson, Esq.

  
	 
	
   

  	
   

  
	 
	
   

  	
  Telephone:

  	
  (312) 876-8238

  
	 
	
   

  	
  Facsimile:

  	
  (312) 876-7934

  
	 
	
   

  	
   

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

  
					






 


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


 


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


 


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


 


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


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  a, 

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
							



 


K-7

















 


SCHEDULE 1


 


SUBSIDIARIES
AND OTHER INVESTMENTS


(See Section 6.7)


 


 


	
  Investment

  In

  	
   

  	
  Owned

  By

  	
   

  	
  Amount of  

  Investment

  	
   

  	
  Percent

  Ownership

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


1-1

















 


SCHEDULE 2


 


INDEBTEDNESS
AND LIENS


(See Section 7.15)


 


 


	
  Indebtedness

  Incurred By

  	
   

  	
  Indebtedness

  Owed To

  	
   

  	
  Property

  Encumbered

  	
   

  	
  Maturity

  and Amount

  of Indebtedness

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


2-1

















 


SCHEDULE 3


 


UNENCUMBERED
ASSETS


(See Section 6.20)


 


 


	
  Project
  Name

  and Address

  	
   

  	
  Type of Project

  	
   

  	
  Date Placed

  In Service

  	
   

  	
  Owned By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


3-1