exv10w3



 







Exhibit 10.3




UNSECURED TERM LOAN AGREEMENT




DATED AS OF AUGUST 1, 2005




AMONG




FIRST INDUSTRIAL, L.P., AS BORROWER




FIRST INDUSTRIAL REALTY TRUST, INC.,




AS GENERAL PARTNER AND GUARANTOR




THE LENDERS




AND




JPMORGAN CHASE BANK, N.A.,




AS ADMINISTRATIVE AGENT




AND




JPMORGAN SECURITIES INC.




AS LEAD ARRANGER AND SOLE BOOK RUNNER




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	Article I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.1. Definitions
	 	 	1	 
	1.2. Financial Standards
	 	 	18	 
	Article II. THE FACILITY
	 	 	18	 
	2.1. The Facility
	 	 	18	 
	2.2. Principal Payments and Extension Option
	 	 	18	 
	2.3. Requests for Advances; Responsibility for Advances
	 	 	18	 
	2.4. Evidence of Credit Extensions
	 	 	19	 
	2.5. Ratable and Non-Pro Rata Loans
	 	 	19	 
	2.6. Applicable Margins
	 	 	19	 
	2.7. Other Fees
	 	 	19	 
	2.8. Minimum Amount of Each Advance
	 	 	20	 
	2.9. Interest
	 	 	20	 
	2.10. Selection of Rate Options and LIBOR Interest Periods
	 	 	20	 
	2.11. Method of Payment
	 	 	23	 
	2.12. Default
	 	 	23	 
	2.13. Lending Installations
	 	 	23	 
	2.14. Non-Receipt of Funds by Administrative Agent
	 	 	23	 
	2.15. Swingline Loans
	 	 	23	 
	2.16. Competitive Bid Loans
	 	 	24	 
	2.17. INTENTIONALLY DELETED
	 	 	28	 
	2.18. INTENTIONALLY DELETED
	 	 	28	 
	2.19. Application of Moneys Received
	 	 	28	 
	Article III. THE LETTER OF CREDIT SUBFACILITY
	 	 	29	 
	3.1. Obligation to Issue
	 	 	29	 
	3.2. Types and Amounts
	 	 	29	 
	3.3. Conditions
	 	 	30	 
	3.4. Procedure for Issuance of Facility Letters of Credit
	 	 	30	 
	3.5. Reimbursement Obligations; Duties of Issuing Bank
	 	 	32	 
	3.6. Participation
	 	 	32	 
	3.7. Payment of Reimbursement Obligations
	 	 	33	 
	3.8. Compensation for Facility Letters of Credit
	 	 	34	 
	3.9. Letter of Credit Collateral Account
	 	 	35	 
	Article IV. CHANGE IN CIRCUMSTANCES
	 	 	35	 
	4.1. Yield Protection
	 	 	35	 
	4.2. Changes in Capital Adequacy Regulations
	 	 	36	 
	4.3. Availability of LIBOR Advances
	 	 	36	 
	4.4. Funding Indemnification
	 	 	37	 
	4.5. Taxes
	 	 	37	 
	4.6. Lender Statements; Survival of Indemnity
	 	 	39	 
	4.7. Replacement of Lenders under Certain Circumstances
	 	 	39	 
	Article V. CONDITIONS PRECEDENT
	 	 	40	 
	5.1. Conditions Precedent to Closing
	 	 	40	 
	5.2. Conditions Precedent to Subsequent Advances
	 	 	43	 
	Article VI. REPRESENTATIONS AND WARRANTIES
	 	 	43	 






 i






 









 








	 	 	 	 	 
	6.1. Existence
	 	 	43	 
	6.2. Corporate/Partnership Powers
	 	 	43	 
	6.3. Power of Officers
	 	 	44	 
	6.4. Government and Other Approvals
	 	 	44	 
	6.5. Solvency
	 	 	44	 
	6.6. Compliance With Laws
	 	 	44	 
	6.7. Enforceability of Agreement
	 	 	44	 
	6.8. Title to Property
	 	 	45	 
	6.9. Litigation
	 	 	45	 
	6.10. Events of Default
	 	 	45	 
	6.11. Investment Company Act of 1940
	 	 	45	 
	6.12. Public Utility Holding Company Act
	 	 	45	 
	6.13. Regulation U
	 	 	45	 
	6.14. No Material Adverse Financial Change
	 	 	45	 
	6.15. Financial Information
	 	 	45	 
	6.16. Factual Information
	 	 	46	 
	6.17. ERISA
	 	 	46	 
	6.18. Taxes
	 	 	46	 
	6.19. Environmental Matters
	 	 	46	 
	6.20. Insurance
	 	 	47	 
	6.21. No Brokers
	 	 	47	 
	6.22. No Violation of Usury Laws
	 	 	47	 
	6.23. Not a Foreign Person
	 	 	47	 
	6.24. No Trade Name
	 	 	48	 
	6.25. Subsidiaries
	 	 	48	 
	6.26. Unencumbered Assets
	 	 	48	 
	Article VII. ADDITIONAL REPRESENTATIONS AND WARRANTIES
	 	 	50	 
	7.1. Existence
	 	 	50	 
	7.2. Corporate Powers
	 	 	50	 
	7.3. Power of Officers
	 	 	50	 
	7.4. Government and Other Approvals
	 	 	50	 
	7.5. Compliance With Laws
	 	 	50	 
	7.6. Enforceability of Agreement
	 	 	50	 
	7.7. Liens; Consents
	 	 	50	 
	7.8. Litigation
	 	 	50	 
	7.9. Events of Default
	 	 	51	 
	7.10. Investment Company Act of 1940
	 	 	51	 
	7.11. Public Utility Holding Company Act
	 	 	51	 
	7.12. No Material Adverse Financial Change
	 	 	51	 
	7.13. Financial Information
	 	 	51	 
	7.14. Factual Information
	 	 	51	 
	7.15. ERISA
	 	 	51	 
	7.16. Taxes
	 	 	52	 
	7.17. No Brokers
	 	 	52	 
	7.18. Subsidiaries
	 	 	52	 
	7.19. Status
	 	 	52	 
	Article VIII. AFFIRMATIVE COVENANTS
	 	 	52	 






 ii





 









 








	 	 	 	 	 
	8.1. Notices
	 	 	53	 
	8.2. Financial Statements, Reports, Etc.
	 	 	53	 
	8.3. Existence and Conduct of Operations
	 	 	55	 
	8.4. Maintenance of Properties
	 	 	56	 
	8.5. Insurance
	 	 	56	 
	8.6. Payment of Obligations
	 	 	56	 
	8.7. Compliance with Laws
	 	 	56	 
	8.8. Adequate Books
	 	 	56	 
	8.9. ERISA
	 	 	56	 
	8.10. Maintenance of Status
	 	 	56	 
	8.11. Use of Proceeds
	 	 	56	 
	8.12. Pre-Acquisition Environmental Investigations
	 	 	57	 
	8.13. Distributions
	 	 	57	 
	Article IX. NEGATIVE COVENANTS
	 	 	57	 
	9.1. Change in Business
	 	 	57	 
	9.2. Change of Management of Properties
	 	 	57	 
	9.3. Change of Borrower Ownership
	 	 	57	 
	9.4. Use of Proceeds
	 	 	57	 
	9.5. Transfers of Unencumbered Assets
	 	 	57	 
	9.6. Liens
	 	 	58	 
	9.7. Regulation U
	 	 	58	 
	9.8. Indebtedness and Cash Flow Covenants
	 	 	58	 
	9.9. Mergers and Dispositions
	 	 	59	 
	9.10. Negative Pledge
	 	 	60	 
	9.11. Maximum Revenue from Single Tenant
	 	 	60	 
	9.12. Issuance of Senior Preferred Stock
	 	 	60	 
	Article X. DEFAULTS
	 	 	60	 
	10.1. Nonpayment of Principal
	 	 	60	 
	10.2. Certain Covenants
	 	 	60	 
	10.3. Nonpayment of Interest and Other Obligations
	 	 	60	 
	10.4. Cross Default
	 	 	60	 
	10.5. Loan Documents
	 	 	60	 
	10.6. Representation or Warranty
	 	 	61	 
	10.7. Covenants, Agreements and Other Conditions
	 	 	61	 
	10.8. No Longer General Partner
	 	 	61	 
	10.9. Material Adverse Financial Change
	 	 	61	 
	10.10. Bankruptcy
	 	 	61	 
	10.11. Legal Proceedings
	 	 	62	 
	10.12. ERISA
	 	 	62	 
	10.13. Revolving Credit Agreement
	 	 	62	 
	10.14. Failure to Satisfy Judgments
	 	 	62	 
	10.15. Environmental Remediation
	 	 	62	 
	Article XI. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
	 	 	62	 
	11.1. Acceleration
	 	 	62	 
	11.2. Preservation of Rights; Amendments
	 	 	63	 
	Article XII. THE ADMINISTRATIVE AGENT
	 	 	63	 
	12.1. Appointment
	 	 	63	 






 iii





 









 








	 	 	 	 	 
	12.2. Powers
	 	 	64	 
	12.3. General Immunity
	 	 	64	 
	12.4. No Responsibility for Loans, Recitals, etc.
	 	 	64	 
	12.5. Action on Instructions of Lenders
	 	 	64	 
	12.6. Employment of Administrative Agents and Counsel
	 	 	64	 
	12.7. Reliance on Documents; Counsel
	 	 	65	 
	12.8. Administrative Agent’s Reimbursement and Indemnification
	 	 	65	 
	12.9. Rights as a Lender
	 	 	65	 
	12.10. [Intentionally Omitted.]
	 	 	65	 
	12.11. Lender Credit Decision
	 	 	65	 
	12.12. Successor Administrative Agent
	 	 	66	 
	12.13. Notice of Defaults
	 	 	66	 
	12.14. Requests for Approval
	 	 	66	 
	12.15. Copies of Documents
	 	 	67	 
	12.16. Defaulting Lenders
	 	 	67	 
	12.17. Delegation to Affiliates
	 	 	67	 
	Article XIII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
	 	 	68	 
	13.1. Successors and Assigns
	 	 	68	 
	13.2. Participations
	 	 	68	 
	13.3. Assignments
	 	 	69	 
	13.4. Dissemination of Information
	 	 	71	 
	13.5. Tax Treatment
	 	 	71	 
	Article XIV. GENERAL PROVISIONS
	 	 	71	 
	14.1. Survival of Representations
	 	 	71	 
	14.2. Governmental Regulation
	 	 	71	 
	14.3. Taxes
	 	 	71	 
	14.4. Headings
	 	 	71	 
	14.5. No Third Party Beneficiaries
	 	 	71	 
	14.6. Expenses; Indemnification
	 	 	71	 
	14.7. Severability of Provisions
	 	 	72	 
	14.8. Nonliability of the Lenders
	 	 	72	 
	14.9. Choice of Law
	 	 	72	 
	14.10. Consent to Jurisdiction
	 	 	72	 
	14.11. Waiver of Jury Trial
	 	 	73	 
	14.12. Successors and Assigns
	 	 	73	 
	14.13. Entire Agreement; Modification of Agreement
	 	 	73	 
	14.14. Dealings with the Borrower
	 	 	74	 
	14.15. Set-Off
	 	 	74	 
	14.16. Counterparts
	 	 	74	 
	Article XV. NOTICES
	 	 	74	 
	15.1. Giving Notice
	 	 	74	 
	15.2. Change of Address
	 	 	76	 






EXHIBITS




	 	 	 	 	 
	A

	 	-
	 	Intentionally Deleted






 iv






 









 








	 	 	 	 	 
	B-1

	 	-
	 	Form of Note
	B-2

	 	-
	 	Form of Competitive Bid Note
	C-1

	 	-
	 	Form of Competitive Bid Quote Request
	C-2

	 	-
	 	Invitation for Competitive Bid Quotes
	C-3

	 	-
	 	Competitive Bid Quote
	D

	 	-
	 	Form of Guaranty
	E

	 	-
	 	Opinion of Borrower’s Counsel
	F

	 	-
	 	Opinion of General Partner’s Counsel
	G

	 	-
	 	Wiring Instructions
	H

	 	-
	 	Form of Compliance Certificate
	I

	 	-
	 	Intentionally Deleted
	J

	 	-
	 	Form of Assignment Agreement
	K

	 	-
	 	Form of Designation Agreement
	L

	 	-
	 	Intentionally Deleted






SCHEDULES




	 	 	 
	6.9

	 	Litigation (Borrower)
	6.19

	 	Environmental Compliance
	6.24

	 	Trade Names
	6.25

	 	Subsidiaries (Borrower)
	6.26

	 	Unencumbered Assets
	7.8

	 	Litigation (General Partner)
	7.18

	 	Subsidiaries (General Partner)






 v






 









 








UNSECURED TERM LOAN AGREEMENT




     THIS UNSECURED TERM LOAN AGREEMENT is entered into as of August 1, 2005 by and among the
following:



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



     FIRST INDUSTRIAL REALTY TRUST, INC., a Maryland corporation that is qualified as a real estate
investment trust whose principal place of business is 311 South Wacker Drive, Suite 4000, Chicago,
Illinois 60606 (“General Partner”);



     JP MORGAN CHASE BANK, N.A. (“JPMCB”), a national bank organized under the laws of the United
States of America having an office at 1 Bank One Plaza, Chicago, Illinois 60670 as Administrative
Agent (“Administrative Agent”) for the Lenders (as defined below); and



     Those Lenders identified on the signature pages hereto.



RECITALS




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



     B. Borrower has requested that Lenders provide a non-revolving bridge loan in the amount of
$150,000,000 to provide interim financing for property acquisitions and closing costs.



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



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



Article I.




DEFINITIONS AND ACCOUNTING TERMS




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



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



     “Absolute Rate” means a fixed rate of interest (rounded to the nearest 1/100 of 1%)
for an Absolute Interest Period with respect to a Competitive Bid Loan offered by a Lender and
accepted by the Borrower at such rate under Section 2.16.



 









 





     “Adjusted EBITDA” means for any Person the sum of EBITDA for such Person and such
Person’s reported corporate overhead for itself and its Subsidiaries; provided that “Adjusted
EBITDA” shall not include overhead related to specific properties.



     “Adjusted LIBOR Rate” means, with respect to a LIBOR Advance for the relevant LIBOR
Interest Period, the sum of (i) the quotient of (a) the Base LIBOR Rate applicable to such LIBOR
Interest Period, divided by (b) one minus the Reserve Requirement (expressed as a decimal)
applicable to such LIBOR Interest Period, plus, (ii) in the case of ratable LIBOR Advances, the
LIBOR Applicable Margin in effect from time to time during such LIBOR Interest Period, or in the
case of LIBOR Advances made as Competitive Bid Loans, the Competitive LIBOR Margin established in
the Competitive Bid Quote applicable to such Competitive Bid Loan.



     “Adjusted Prime Rate” means a floating interest rate equal to the Prime Rate plus
Prime Applicable Margin changing when and as the Prime Rate and Prime Applicable Margin changes.



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



     “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as contractual
representative of the Lenders pursuant to Article XII, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article XII.



     “Advance” means a borrowing hereunder, (i) disbursed by the Lenders on the same
Borrowing Date, or (ii) converted or continued by the Lenders on the same date of conversion or
continuation, consisting, in either case, of the aggregate amount of the several Loans of the same
type and, in the case of LIBOR Loans, for the same Interest Period. The term “Advance” shall
include Swingline Loans and Competitive Bid Loans unless otherwise expressly provided.



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



     “Aggregate Commitment” means, as of any date, the sum of all of the Lenders’
then-current Commitments, which shall be $150,000,000.



     “Agreement” means this Unsecured Term Loan Agreement and all amendments, modifications
and supplements hereto.



     “Agreement Execution Date” shall mean August 1, 2005, the date on which all of the
parties hereto have executed this Agreement.



     “Allocated Facility Amount” means, at any time, the sum of all then outstanding
Advances (including all Swingline Loans and Competitive Bid Loans), and the then outstanding
Facility Letter of Credit Obligations.



2









 





     “Applicable Cap Rate” means 8.5%.



     “Applicable Margin” means the applicable margins set forth in the table in Section 2.6
used in calculating the interest rate applicable to the various types of Advances, which shall vary
from time to time in accordance with the long term, senior unsecured debt ratings of Borrower and
General Partner in the manner set forth in Section 2.6.



     “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 JPMorgan Securities Inc.



     “Base LIBOR Rate” means, with respect to a LIBOR Advance for the relevant Interest
Period, the applicable British Bankers’ Association LIBOR rate for deposits in U.S. dollars as
reported by any generally recognized financial information service as of 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, and having a maturity equal to
such Interest Period, provided that, if no such British Bankers’ Association LIBOR rate is
available to the Agent, the applicable Base LIBOR Rate for the relevant Interest Period shall
instead be the rate determined by the Agent to be the rate at which JPMCB or one of its Affiliate
banks offers to place deposits in U.S. dollars with first-class banks in the London interbank
market at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, in the approximate amount of JPMCB’s relevant LIBOR Advance and having a maturity
equal to such Interest Period.



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



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



     “Borrowing Notice” is defined in Section 2.10(a) hereof.



     “Business Day” means a day, other than a Saturday, Sunday or holiday, on which banks
are open for business in Chicago, Illinois and, where such term is used in reference to the
selection or determination of the Adjusted LIBOR Rate, in London, England.



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



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



3









 





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



     “Commitment” means the obligation of each Lender, subject to the terms and conditions
of this Agreement and in reliance upon the representations and warranties herein, to make Advances
not exceeding in the aggregate the amount set forth on its signature page, or the amount stated in
any subsequent amendment hereto.



     “Competitive Bid Borrowing Notice” is defined in Section 2.16(f).



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



     “Competitive Bid Loan” is a Loan made pursuant to Section 2.16 hereof.



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



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



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



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



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



     “Consolidated Secured Debt” means as of any date of determination, the sum of (a) the
aggregate principal amount of all Indebtedness of the Consolidated Operating Partnership
outstanding at such date which is secured by a Lien on any asset or Capital Stock of Consolidated
Operating Partnership, including without limitation loans secured by mortgages, stock, or
partnership interests, but excluding Defeased Debt and (b) the amount by which the aggregate
principal amount of all Indebtedness of the Subsidiaries of the Borrower or General Partner
outstanding at such date exceeds $5,000,000, without duplication of any Indebtedness included under
clause (a).



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



4









 





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



     “Controlled Group” means all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control which, together with all or
any of the entities in the Consolidated Operating Partnership, are treated as a single employer
under Sections 414(b) or 414(c) of the Code.



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



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



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



     “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.



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



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



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



5









 





     “EBITDA” means, with respect to any Person, income before extraordinary items, without
deduction of any losses related to initial offering costs of preferred stock which are written off
due to the redemption of such preferred stock, and excluding any gains or losses from pay-off or
retirement of debt and from sales of assets (unless they are the result of Borrower’s Integrated
Industrial Solutions activities, which primarily involve merchant development activities and land
sales, as reported by the Borrower so long as the amount included in EBITDA from such activities
does not exceed 20% of the total amount of EBITDA), as reported by such Person and its Subsidiaries
on a consolidated basis in accordance with GAAP (reduced to eliminate any income from Investment
Affiliates of such Person, any interest income and, with respect to the Consolidated Operating
Partnership, any income from the assets used for Defeased Debt), plus Interest Expense,
depreciation, amortization and income tax (if any) expense plus a percentage of such income
(adjusted as described above) of any such Investment Affiliate equal to the allocable economic
interest in such Investment Affiliate held by such Person and any Subsidiaries, in the aggregate
(provided that no item of income or expense shall be included more than once in such calculation
even if it falls within more than one of the foregoing categories).



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



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



     “Equity Value” is defined in Section 10.10 hereof.



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



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



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



     “Extension Notice” is defined in Section 2.2 hereof.



     “Facility” means the unsecured revolving credit facility made available pursuant to
this Agreement.



     “Facility Fee” and “Facility Fee Rate” are defined in Section 2.7(b).



6









 





     “Facility Letter of Credit” means a Financial Letter of Credit or Performance Letter
of Credit issued hereunder.



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



     “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.



     “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.



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



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



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



     “Fitch” means Fitch, Inc.



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



     “Funded Percentage” means, with respect to any Lender at any time, a percentage equal
to a fraction the numerator of which is the amount of the Aggregate Commitment actually disbursed
and outstanding to Borrower by such Lender at such time, and the denominator of which is the total
amount of the Aggregate Commitment disbursed and outstanding to Borrower by all of the Lenders at
such time.



     “Funds From Operations” for any period means GAAP net income, as adjusted by (i)
adding back any losses related to initial offering costs of preferred stock which are written off
due to the redemption of such preferred stock, (ii) excluding gains and losses from property
sales



7









 




(unless they are the result of Borrower’s Integrated Industrial Solutions activities, which
primarily involve merchant development activities and land sales, as reported by the Borrower),
debt restructurings and property write-downs and adjusted for the non-cash effect of
straight-lining of rents, (iii) straight-lining various ordinary operating expenses which are
payable less frequently than monthly (e.g., real estate taxes), and (iv) adding back depreciation,
amortization and all non-cash items. Annualized Funds From Operations for any Person will be
calculated by annualizing actual Funds From Operations for the most recently ended fiscal quarter.
In calculating Funds From Operations, no deduction shall be made from net income for closing costs
and other one-time charges associated with the formation and capitalization of such Person.




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



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



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



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



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



8









 





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



     “Implied Capitalization Value” means for any Person as of any date, the sum of (i) the
quotient of (x) the Adjusted EBITDA for such Person during the most recent four fiscal quarters
(which Adjusted EBITDA shall exclude any Adjusted EBITDA attributable to all assets under
development or Rollover Projects, and which Adjusted EBITDA attributable to each Project which was
formerly a Rollover Project shall not be less than zero), and (y) the Applicable Cap Rate, plus
(ii) an amount equal to fifty percent (50%) of the then current book value of each asset under
development under GAAP other than 100% Preleased Assets Under Development, plus (iii) an amount
equal to one hundred percent (100%) of the then-current book value of each 100% Preleased Asset
Under Development, provided that in no event shall the aggregate amount added to Implied
Capitalization Value pursuant to clauses (ii) and (iii) exceed ten percent (10%) of the Implied
Capitalization Value, plus (iv) with respect to each Rollover Project, an amount equal to the
greater of (A) 50% of the then-current book value, determined in accordance with GAAP, of such
Rollover Project, and (B) the amount determined by dividing the Property Operating Income for such
Rollover Project for the most recent four fiscal quarters by the Applicable Cap Rate (provided that
the Rollover Projects shall at no time comprise more than 10% of Implied Capitalization Value),
plus (v) an amount equal to 100% of unrestricted cash and unrestricted cash equivalents, including
any cash on deposit with a qualified intermediary with respect to a deferred tax-free exchange (and
specifically excluding any cash or cash equivalents being used to support Defeased Debt), plus (vi)
an amount equal to 100% of the then-current book value, determined in accordance with GAAP, of all
first mortgage receivables on income producing commercial properties, provided that in no event
shall the aggregate amount added to Implied Capitalization Value pursuant to this clause (vi)
exceed ten percent (10%) of Implied Capitalization Value. For purposes of computing the Implied
Capitalization Value, (A) Adjusted EBITDA may be increased from quarter to quarter by the amount of
net cash flow from new leases of space at the Properties approved by Administrative Agent (where
such net cash flow has not then been included in EBITDA) which have a minimum term of one year and
(B) Properties which either (i) were acquired during the most recent four fiscal quarters and/or
(ii) were previously assets under development under GAAP but which have been completed during such
four quarter period and have at least some tenants in possession of the respective leased spaces
and conducting business operations therein each will be included in the calculation of Implied
Capitalization Value using pro forma EBITDA for such four quarter period, so long as a “new
acquisition/opening summary” form is submitted to, and approved by, Administrative Agent for each
new acquisition or newly-opened Property during such four quarter period.



     “Indebtedness” of any Person at any date means without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred
purchase price of property or services (other than current trade liabilities and other accounts
payable, and accrued expenses incurred in the ordinary course of business and payable in accordance
with customary practices), to the extent such obligations constitute indebtedness for the purposes
of GAAP, (c) any other indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (d) all obligations of such Person under financing leases and capital leases,



     (e) all obligations of such Person in respect of acceptances issued or created for the account
of such Person, (f) all Guarantee Obligations of such Person (excluding in any calculation of
consolidated Indebtedness of the Consolidated Operating Partnership, Guarantee Obligations of



9









 




any
member of the Consolidated Operating Partnership in respect of primary obligations of any other
member of the Consolidated Operating Partnership), (g) all reimbursement obligations of such Person
for letters of credit and other contingent liabilities, (h) Net Mark-to-Market Exposure under Rate
Management Transactions, (i) Rate Management Obligations, (j) all liabilities secured by any lien
(other than liens for taxes not yet due and payable) on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment thereof, (k) any
repurchase obligation or liability of such Person or any of its Subsidiaries with respect to
accounts or notes receivable sold by such Person or any of its Subsidiaries, and (l) such Person’s
pro rata share of debt in Investment Affiliates and any loans where such Person is liable as a
general partner.




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



     “Interest Expense” means all interest expense of the Consolidated Operating
Partnership determined in accordance with GAAP plus (i) capitalized interest not covered by
an interest reserve from a loan facility, plus (ii) the allocable portion (based on
liability) of any accrued or paid interest incurred on any obligation for which the Consolidated
Operating Partnership is wholly or partially liable under repayment, interest carry, or performance
guarantees, or other relevant liabilities, plus (iii) the allocable percentage of any
accrued or paid interest incurred on any Indebtedness of any Investment Affiliate, whether recourse
or non-recourse, equal to the applicable economic interest in such Investment Affiliate held by the
Consolidated Operating Partnership, in the aggregate, provided that no expense shall be included
more than once in such calculation even if it falls within more than one of the foregoing
categories; provided, however, that “Interest Expense” shall not include interest on the loans
after they became Defeased Debt.



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



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



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



     “Issuance Date” is defined in Section 3.4(a)(3).



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



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



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



10









 





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



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



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



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



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



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



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



     “LIBOR Interest Period” means, with respect to a LIBOR Advance, a period of one month
or a period of less than one month, as selected in advance by the Borrower with the consent of the
Administrative Agent and the Lenders.



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



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



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



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



     “Material Adverse Effect” means, with respect to any matter, that such matter in the
Required Lenders’ good faith judgment may (x) materially and adversely affect the business,
properties, condition or results of operations of the Consolidated Operating Partnership taken
as



11









 




a whole, or (y) constitute a non-frivolous challenge to the validity or enforceability of any
material provision of any Loan Document against any obligor party thereto.




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



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



     “Maturity Date” means September 15, 2005, or such earlier date on which the principal
balance of the Facility and all other sums due in connection with the Facility shall be due as a
result of the acceleration of the Facility.



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



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



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



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



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



     “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 any or
all of the Lenders arising under this Agreement or any of the other Loan Documents.



     “100% Preleased Assets Under Development” means Preleased Assets Under Development
which have one hundred percent (100%) of its projected total rentable area leased at market rates
to third party tenants similar to those at Borrower’s other properties.



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



12









 





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



     “Participants” is defined in Section 13.2.1 hereof.



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



     “Percentage” means, with respect to each Lender, the applicable percentage of the
then-current Aggregate Commitment represented by such Lender’s then-current Commitment.



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



     “Permitted Liens” are defined in Section 9.6 hereof.



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



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



     “Preleased Assets Under Development” means, as of any date of determination, any
Project which (i) is under construction and then treated as an asset under development under GAAP,
and (ii) has, as of such date, at least fifty percent (50%) of its projected total rentable area
leased at market rates to third party tenants similar to those at Borrower’s other properties, 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; provided, however, in no event
shall Preleased Assets Under Development include any Project for more than 365 days from the date
such Project is initially so designated under GAAP.



     “Presold Assets Under Development” means, as of any date of determination, any Project
(i) which is treated as an asset under development under GAAP, (ii) which is located in the United
States of America, and (iii) which has been presold under a binding purchase and sale agreement
with an unaffiliated third party; provided, however, in no event shall any Project be included in
such category of “Presold Assets Under Development” for more than three hundred sixty-five (365)
days from the date such Project is initially so designated under GAAP.



     “Prime Applicable Margin” means the Applicable Margin in effect for an Adjusted Prime
Rate Advance as determined in accordance with Section 2.6 hereof.



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



13









 





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



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



     “Property Operating Income” means, with respect to any Property, for any period,
earnings from rental operations (computed in accordance with GAAP but without deduction for
reserves) attributable to such Property plus depreciation, amortization and interest
expense with respect to such Property for such period, and, if such period is less than a year,
adjusted by straight lining various ordinary operating expenses which are payable less frequently
than once during every such period (e.g. real estate taxes and insurance). The earnings from
rental operations reported for the immediately preceding fiscal quarter shall be adjusted to
include pro forma earnings (as substantiated to the satisfaction of the Administrative Agent) for
an entire quarter for any Property acquired or placed in service during such fiscal quarter and to
exclude earnings during such quarter from any property not owned as of the end of the quarter.



     “Purchasers” is defined in Section 13.3.1 hereof.



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



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



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



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



     “Rate Option” means the Adjusted Prime Rate, the Adjusted LIBOR Rate or the Absolute
Rate (only as applicable to Competitive Bid Loans). The Rate Option in effect on any date shall
always be the Adjusted Prime Rate unless the Borrower has properly selected the Adjusted LIBOR Rate
pursuant to Section 2.10 hereof or a Competitive Bid Loan pursuant to Section 2.16 hereof.



14









 





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



     “Regulation D” means Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.



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



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



     “Required Lenders” means Lenders in the aggregate having at least 66 2/3% of the
Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the aggregate
holding at least 66 2/3% of the aggregate unpaid principal amount of the outstanding Advances.



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



     “Revolving Credit Agreement” means that certain Third Amended and Restated Unsecured
Revolving Credit Agreement dated as of June 11, 2004, as amended.



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



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



     “Senior Preferred Stock” means for any Person, any preferred stock issued by such
Person which is not typical preferred stock but instead is both (i) redeemable by the holders



15









 




thereof on any fixed date or upon the occurrence of any event and (ii) as to payment of
dividends or amounts on liquidation, either guaranteed by any direct or indirect subsidiary of such
Person or secured by any property of such Person or any direct or indirect subsidiary of such
Person.




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



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



     “Swingline Commitment” means the obligation of the Swingline Lender to make Swingline
Loans not exceeding $5,000,000.



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



     “Swingline Loan” means a Loan made by the Swingline Lender under the special
availability provisions described in Section 2.15 hereof.



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



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



     “Transferee” is defined in Section 13.4 hereof.



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



16









 




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




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



     “Value of Unencumbered Assets” means, as of any date, the sum of (a) the value of all
Unencumbered Assets that are not assets under development under GAAP (determined in the manner set
forth below), plus (b) any unrestricted cash, including any cash on deposit with a
qualified intermediary with respect to a deferred tax-free exchange, plus (c) an amount
equal to 100% of the then-current book value, determined in accordance with GAAP, of each first
mortgage receivable secured by an income producing commercial property, provided that such first
mortgage receivable is not subject to any Lien, plus (d) 100% of the then current book
value of each Presold Asset Under Development that is also an Unencumbered Asset, plus (e)
100% of the then current book value of each 100% Preleased Asset Under Development that is also an
Unencumbered Asset, plus (f) 50% of the then current book value of each other asset under
development under GAAP that constitutes an Unencumbered Asset (provided that in no event shall the
aggregate amount added to Value of Unencumbered Assets from the items forth in clauses (b), (c),
(d), (e) and (f) shall not exceed 20% of the total Value of Unencumbered Assets), plus (g)
with respect to each Rollover Project, an amount equal to the greater of (A) 50% of the
then-current book value, determined in accordance with GAAP, of such Rollover Project, and (B) the
amount determined by dividing the Property Operating Income for such Rollover Project for the most
recent four fiscal quarters by the Applicable Cap Rate, (provided that the Rollover Projects shall
at no time comprise more than 10% of the Value of Unencumbered Assets). Unencumbered Assets that
are not assets under development under GAAP shall be valued by dividing the Property Operating
Income for such Project for the most recent four fiscal quarters by the Applicable Cap Rate
(provided that for the purpose of such calculation, the Property Operating Income of each
Unencumbered Asset that was formerly a Rollover Project shall in no event be less than zero). If a
Project has been acquired during such calculation period then Borrower shall be entitled to include
pro forma Property Operating Income from such property for the entire calculation period in the
foregoing calculation, except for purposes of the financial covenant comparing the Property
Operating Income from Unencumbered Assets during a quarter to Debt Service for such quarter. If a
Project is no longer owned as of the date of calculation, then no value shall be included based on
capitalizing Property Operating Income from such Project, except for purposes of such financial
covenant



17









 




comparing the Property Operating Income from Unencumbered Assets during a quarter to Debt
Service for such quarter.




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



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



     1.2. Financial Standards. All financial computations required of a Person under this
Agreement shall be made, and all financial information required under this Agreement shall be
prepared, in accordance with GAAP, except that if any Person’s financial statements are not
audited, such Person’s financial statements shall be prepared in accordance with the same sound
accounting principles utilized in connection with the financial information submitted to Lenders
with respect to the Borrower or the General Partner or the Properties in connection with this
Agreement and shall be certified by an authorized representative of such Person.



Article II.




THE FACILITY




     2.1. The Facility.




          (a) Subject to the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Borrower and General Partner contained herein, Lenders
agree, severally and not jointly, to make three Advances through the Administrative Agent to
Borrower from time to time prior to the Maturity Date, provided that the
making of any such Advance will not cause the then Allocated Facility Amount to exceed the
then-current Aggregate Commitment. The Advances may be ratable Adjusted Prime Rate
Advances, ratable LIBOR Advances, non-pro rata Swingline Loans or non-pro rata Competitive
Bid Loans. Except as provided in Sections 2.15 and 2.16 hereof, each Lender shall
fund its Percentage of each such Advance and no Lender will be required to fund any amounts
which when aggregated with such Lender’s Percentage of (i) all other Advances (other than
Competitive Bid Loans) then outstanding, (ii) all Swingline Advances and (iii) all Facility
Letter of Credit Obligations would exceed such Lender’s then-current Commitment. This
facility (“Facility”) is not a revolving credit facility and amounts repaid may not be
reborrowed .




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



     2.2. Principal Payments and Extension Option. Any outstanding Advances (other than Competitive Bid Loans) and all other unpaid Obligations
shall be paid in full by the Borrower on the Maturity Date. Each Competitive Bid Loan shall be
paid in full on the last day of the applicable Interest Period as described in Section 2.16
below. In addition at such time as the Revolving Credit Agreement is amended or replaced in order
to increase the aggregate amount of



18









 




the commitments thereunder, Borrower shall concurrently
therewith repay all Advances outstanding and all commitments hereunder shall be immediately
terminated without further action.




     2.3. Requests for Advances; Responsibility for Advances. Ratable Advances shall be made
available to Borrower by Administrative Agent in accordance with Section 2.1(a) and
Section 2.10(a) hereof. The obligation of each Lender to fund its Percentage of each
ratable Advance shall be several and not joint.



     2.4. Evidence of Credit Extensions. The Advances of each Lender outstanding at any time
(other than Competitive Bid Loans) shall be evidenced by the Notes. Each Note executed by the
Borrower shall be in a maximum principal amount equal to each Lender’s Percentage of the current
Aggregate Commitment. Each Lender shall record Advances and principal payments thereof on the
schedule attached to its Note or, at its option, in its records, and each Lender’s record thereof
shall be conclusive absent Borrower furnishing to such Lender conclusive and irrefutable evidence
of an error made by such Lender with respect to that Lender’s records. Notwithstanding the
foregoing, the failure to make, or an error in making, a notation with respect to any Advance shall
not limit or otherwise affect the obligations of Borrower hereunder or under the Notes to pay the
amount actually owed by Borrower to Lenders.



     2.5. Ratable and Non-Pro Rata Loans. Each Advance hereunder shall consist of Loans made
from the several Lenders ratably in proportion to their Percentages, except for Swingline Loans
which shall be made by the Swingline Lender in accordance with Section 2.15 and Competitive
Bid Loans which may be made on a non-pro rata basis by one or more of the Lenders in accordance
with Section 2.16. The ratable Advances may be Adjusted Prime Rate Advances, LIBOR
Advances or a combination thereof, selected by the Borrower in accordance with Sections 2.9
and 2.10.



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



     Rating Period:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Rating Level of Lower	 	 	 	 	 	 	 	 	 	Prime
	of Two Highest	 	LIBOR	 	 	 	 	 	Applicable
	Ratings*	 	Applicable Margin	 	Facility Fee	 	Margin
	A-/A3
	 	 	0.55	%	 	 	0.15	%	 	 	0	 
	BBB+/Baa1
	 	 	0.60	%	 	 	0.20	%	 	 	0	 
	BBB/Baa2
	 	 	0.70	%	 	 	0.20	%	 	 	0	 
	BBB-/Baa3
	 	 	0.90	%	 	 	0.25	%	 	 	0	 
	Below BBB- or Baa3
	 	 	1.20	%	 	 	0.30	%	 	 	0.20	%






19









 





 




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





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



     2.7. Other Fees.




          (a) The Borrower shall pay the fee due to the Administrative Agent in connection with
Competitive Bid Loans as described in Section 2.16.




          (b) The Borrower shall pay a fee (“Facility Fee”) to the Administrative Agent for the
account of the Lenders equal to the applicable Facility Fee Rate in effect from time to
time, as shown in Section 2.6 hereof, times the then Aggregate Commitment, to be
shared among the Lenders based on their respective Percentages. The Facility Fee shall be
paid monthly in arrears on the Payment Date.



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



     2.9. Interest.




          (a) The outstanding principal balance under the Notes shall bear interest from time to
time at a rate per annum equal to:




               (i) the Adjusted Prime Rate; or




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




          (b) All interest shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest accrued on each Advance shall be payable on the first day of each calendar
month in arrears from time to time while such Advance is outstanding and on the Maturity
Date or the effective date of any termination in full of the Aggregate Commitment under
Section 2.17. Interest shall not be payable for the day of any payment on the
amount paid if payment is received by Administrative Agent prior to noon (Chicago time). If
any payment of principal or interest under the Notes shall become due on a day that is not a
Business Day, such payment shall be made on the next succeeding Business Day and, in the
case of a payment of principal, such extension of time shall be included in computing
interest due in connection with such payment; provided that for purposes of Section
10.1 hereof, any payments of principal described in this sentence shall be considered to
be “due” on such next succeeding Business Day.



     2.10. Selection of Rate Options and LIBOR Interest Periods.



20









 






          (a) Borrower, from time to time, may select the Rate Option and, in the case of each
LIBOR Advance, the commencement date (which shall be a Business Day) and the length of the
LIBOR Interest Period applicable to each LIBOR Advance. Borrower shall give Administrative
Agent irrevocable notice (a “Borrowing Notice” not later than 11:00 a.m. (Chicago time) (i)
at least one Business Day prior to an Adjusted Prime Rate Advance, (ii) at least three (3)
Business Days prior to a ratable LIBOR Advance, and (iii) not later than 11:00 a.m. (Chicago
time) on the Borrowing Date for each Swingline Loan, specifying:




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




               (ii) the aggregate amount of such Advance,




               (iii) the type of Advance selected, and




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



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



     Not later than noon (Chicago time) on each Borrowing Date, each Lender shall make available
its Loan or Loans, in funds immediately available in Chicago to the Administrative Agent.
Administrative Agent will promptly make the funds so received from the Lenders available to the
Borrower.




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




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




          (d) As of the end of each LIBOR Interest Period selected for a ratable LIBOR Advance,
the interest rate on the LIBOR Advance will become the Adjusted Prime Rate, unless Borrower
has once again selected a LIBOR Interest Period in accordance with the timing and procedures
set forth in Section 2.10(g).




          (e) The right of Borrower to select the Adjusted LIBOR Rate for an Advance pursuant to
this Agreement is subject to the availability to Lenders of a similar option. If



21









 




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





          (f) In no event may Borrower elect a LIBOR Interest Period which would extend beyond
the Maturity Date. Unless Lenders agree thereto, in no event may Borrower have more than
three (3) different LIBOR Interest Periods for LIBOR Advances outstanding at any one time.




          (g) Conversion and Continuation.




               (i) Borrower may elect from time to time, subject to the other provisions of
this Section 2.10, to convert all or any part of a ratable Advance into any
other type of Advance; provided that any conversion of a ratable LIBOR Advance shall
be made on, and only on, the last day of the LIBOR Interest Period applicable
thereto.




               (ii) Adjusted Prime Rate Advances shall continue as Adjusted Prime Rate
Advances unless and until such Adjusted Prime Rate Advances are converted into
ratable LIBOR Advances pursuant to a Conversion/Continuation Notice from Borrower in
accordance with Section 2.10(g)(iv). Ratable LIBOR Advances shall continue
until the end of the then applicable LIBOR Interest
Period therefor, at which time each such Advance shall be automatically
converted into an Adjusted Prime Rate Advance unless the Borrower shall have given
the Administrative Agent a Conversion/Continuation Notice in accordance with
Section 2.10(g)(iv) requesting that, at the end of such LIBOR Interest
Period, such Advance either continue as an Advance of such type for the same or
another LIBOR Interest Period.




               (iii) Notwithstanding anything to the contrary contained in Sections
2.10(g)(i) or (g)(ii), no Advance may be converted into a LIBOR Advance
or continued as a LIBOR Advance (except with the consent of the Required Lenders)
when any Monetary Default or Event of Default has occurred and is continuing.




               (iv) 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 11:00 a.m. (Chicago time) on the Business Day
immediately preceding the date of the requested conversion, in the case of a
conversion into an Adjusted Prime Rate Advance, or 11:00 a.m.



22









 






(Chicago time) at
least three (3) Business Days prior to the date of the requested conversion or
continuation, in the case of a conversion into or continuation of a ratable LIBOR
Advance, specifying: (1) the requested date (which shall be a Business Day) of such
conversion or continuation; (2) the amount and type of the Advance to be converted
or continued; and (3) the amounts 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 ratable LIBOR Advance, the duration of the LIBOR Interest Period
applicable thereto.



     2.11. Method of Payment. All payments of the Obligations hereunder shall be made, without
set-off, deduction, or counterclaim, in immediately available funds to Administrative Agent at
Administrative Agent’s address specified herein, or at any other Lending Installation of
Administrative Agent specified in writing by Administrative Agent to Borrower, by noon (local time)
on the date when due and shall be applied ratably by Administrative Agent among Lenders. Each
payment delivered to Administrative Agent for the account of any Lender shall be delivered promptly
by Administrative Agent to such Lender in the same type of funds that Administrative Agent received
at its address specified herein or at any Lending Installation specified in a notice received by
Administrative Agent from such Lender. Administrative Agent is hereby authorized to charge the
account of Borrower maintained with JPMCB for each payment of principal, interest and fees as it
becomes due hereunder.



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



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



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



23









 




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




     2.15. Swingline Loans. In addition to the other options available to Borrower hereunder,
the Swingline Commitment shall be available for Swingline Loans subject to the following terms and
conditions. Swingline Loans shall be made available for same day borrowings provided that notice
is given in accordance with Section 2.10 hereof. All Swingline Loans shall bear interest
at the Adjusted Prime Rate and shall be deemed to be Adjusted Prime Rate Advances. In no event
shall the Swingline Lender be required to fund a Swingline Loan if it would increase the total
aggregate outstanding Loans by Swingline Lender hereunder plus its Percentage of Facility Letter of
Credit Obligations to an amount in excess of its Commitment. Upon request of the Swingline Lender
made to all the Lenders, each Lender irrevocably agrees to purchase its Percentage of any Swingline
Loan made by the Swingline Lender regardless of whether the conditions for disbursement are
satisfied at the time of such purchase, including the existence of an Event of Default hereunder
provided that such Event of Default did not exist at the time the Swingline Loan was made and
provided further that no Lender shall be required to have total outstanding Loans (other than
Competitive Bid Loans) plus its Percentage of Facility Letters of Credit to be in an amount greater
than its Commitment. Such purchase shall take place on the date of the request by Swingline Lender
so long as such request is made by noon (Chicago time), otherwise
on the Business Day following such request. All requests for purchase shall be in writing. From
and after the date it is so purchased, each such Swingline Loan shall, to the extent purchased, (i)
be treated as a Loan made by the purchasing Lenders and not by the selling Lender for all purposes
under this Agreement and the payment of the purchase price by a Lender shall be deemed to be the
making of a Loan by such Lender and shall constitute outstanding principal under such Lender’s
Note, and (ii) shall no longer be considered a Swingline Loan except that all interest accruing on
or attributable to such Swingline Loan for the period prior to the date of such purchase shall be
paid when due by the Borrower to the Administrative Agent for the benefit of the Swingline Lender
and all such amounts accruing on or attributable to such Loans for the period from and after the
date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the
benefit of the purchasing Lenders. If prior to purchasing its Percentage of a Swingline Loan one
of the events described in Section 10.10 shall have occurred and such event prevents the
consummation of the purchase contemplated by preceding provisions, each Lender will purchase an
undivided participating interest in the outstanding Swingline Loan in an amount equal to its
Percentage of such Swingline Loan. From and after the date of each Lender’s purchase of its
participating interest in a Swingline Loan, if the Swingline Lender receives any payment on account
thereof, the Swingline Lender will distribute to such Lender its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect the period of time
during which such Lender’s participating interest was outstanding and funded); provided, however,
that in the event that such payment was received by the Swingline Lender and is required to be
returned to the Borrower, each Lender will return to the Swingline Lender any portion thereof
previously distributed by the Swingline Lender to it. If any Lender fails to so purchase its
Percentage of any Swingline Loan, such Lender shall be deemed to be a Defaulting Lender hereunder.
No Swingline Loan shall be




24










 





Outstanding for more than five (5) days at a time and Swingline Loans
shall not be outstanding for more than a total of ten (10) days during any month.





2.16. Competitive Bid Loans.




     (a) Competitive Bid Option. In addition to ratable Advances pursuant to
Section 2.5, but subject to the terms and conditions of this Agreement (including, without
limitation the limitation set forth in Section 2.1(a) as to the maximum Allocated
Facility Amount), the Borrower may, as set forth in this Section 2.16, but only
during a Rating Period, request the Lenders, prior to the Maturity 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 2.16. 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 2.16, 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,




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




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


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





     (c) Invitation for Competitive Bid Quotes. Promptly and in any event before
the close of business on the same Business Day of receipt of a Competitive Bid Quote Request
that is not rejected pursuant to Section 2.16(b), the Administrative Agent shall send to
each of the Lenders by telecopy an Invitation for Competitive Bid Quotes



25









 






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
2.16.




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




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




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




     (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



26









 






     Lender as provided in
Section 2.16(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
2.16(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 2.16(d)(i).




If any Competitive Bid Quote shall be rejected pursuant to this Section
2.16(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 2.16(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) 6:00 p.m. (Chicago
time) at least four Business Days prior to the proposed Borrowing Date in the case of a
request for a Competitive LIBOR Margin or (ii) 10:00 a.m. (Chicago time) on the proposed
Borrowing Date, in the case of a request for an Absolute Rate (or, in either case upon
reasonable prior notice to the Lenders, such other time and date as the Borrower and the
Administrative Agent may agree), the Borrower shall notify the Administrative Agent of its
acceptance or rejection of the offers so notified to it pursuant to Section 2.16(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
2.16(d)(iii)); provided that:



27









 






     (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
2.16(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 2.16(b).
Such administration fee shall be payable monthly in arrears on the first Business Day of
each month and on the Maturity Date (or such earlier date on which the Aggregate Commitment
shall terminate or be cancelled) for any period then ending for which such fee, if any,
shall not have been theretofore paid.




     (i) Other Terms. Any Competitive Bid Loan shall not reduce the Commitment of
the Bid Lender making such Competitive Bid Loan (except as the availability of other
Advances is reduced by the increase in the Allocated Facility Amount due to such Competitive
Bid Loan) and each such Bid 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 50% of the Aggregate Commitment.
Competitive Bid Loans may not be continued and, if not repaid at the end of the Interest
Period applicable thereto, shall (subject to the conditions set forth in this Agreement) be
replaced by new Competitive Bid Loans made in accordance with this Section 2.16 or
by ratable Advances in accordance with Section 2.10.



28









 






     (j) Designated Lenders. A Lender may designate its Designated Lender to fund a
Competitive Bid Loan on its behalf as described in Section 2.16(d)(ii)(e). Any Designated
Lender which funds a Competitive Bid Loan shall on and after the time of such funding become
the obligee under such Competitive Bid Loan and be entitled to receive payment thereof when
due. No Lender shall be relieved of its obligation to fund a Competitive Bid Loan, and no
Designated Lender shall assume such obligation, prior to the time such Competitive Bid Loan
is funded.



      2.17. INTENTIONALLY DELETED.



      2.18.  INTENTIONALLY DELETED.



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




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




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




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




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




     (v) first to interest until paid in full and then to principal for all Lenders
(other than Defaulting Lenders) (i) as allocated by the Borrower (unless an Event of
Default exists) between Competitive Bid Loans and ratable Advances (the amount
allocated to ratable Advances to be distributed in accordance with the Percentages
of the Lenders) or (ii) if an Event of Default exists, in accordance with the
respective Funded Percentages of the Lenders;




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




     (vii) 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).



29









 





Article III.




THE LETTER OF CREDIT SUBFACILITY




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



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




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




     (ii) issue any Facility Letter of Credit if, after giving effect thereto,
either (1) the then applicable Allocated Facility Amount would exceed the then
current Aggregate Commitment, or (2) the Facility Letter of Credit Obligations would
exceed $5,000,000; or




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



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




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




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



30









 






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



      3.4. Procedure for Issuance of Facility Letters of Credit.




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




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




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




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




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




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




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




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


At the time such request is made, the Borrower shall also provide the Administrative Agent and the
Issuing Bank with a copy of the form of the Facility Letter of Credit that the Borrower is
requesting be issued. 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).





     (b) Subject to the terms and conditions of this Article III and provided that
the applicable conditions set forth in Article V hereof have been satisfied, the
Issuing Bank shall, on the Issuance Date, issue a Facility Letter of Credit on behalf of the
Borrower in accordance with the Letter of Credit Request and the Issuing Bank’s usual and
customary



31









 






business practices unless the Issuing Bank has actually received (i) written
notice from the Borrower specifically revoking the Letter of Credit Request with respect to
such Facility Letter of Credit, (ii) written notice from a Lender, which complies with the
provisions of Section 3.6(a), or (iii) written or telephonic notice from the
Administrative Agent stating that the issuance of such Facility Letter of Credit would
violate Section 3.2.




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




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



      3.5. Reimbursement Obligations; Duties of Issuing Bank.




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




     (b) Any action taken or omitted to be taken by the Issuing Bank under or in connection
with any Facility Letter of Credit, if taken or omitted in the absence of willful misconduct
or gross negligence, shall not put the Issuing Bank under any resulting liability to any
Lender or, provided that such Issuing Bank has complied with the procedures specified in
Section 3.4 and such Lender has not given a notice contemplated by Section
3.6(a) that continues in full force and effect, relieve that Lender of its obligations
hereunder to the Issuing Bank. In determining whether to pay under any Facility Letter of
Credit, the Issuing Bank shall have no obligation relative to the Lenders other than to
confirm that any documents required to be delivered under such Letter of Credit appear to
have been delivered in compliance, and that they appear to comply on their face, with the
requirements of such Letter of Credit.



      3.6. Participation.




     (a) Immediately upon issuance by the Issuing Bank of any Facility Letter of Credit in
accordance with the procedures set forth in Section 3.4, each Lender shall be deemed
to have irrevocably and unconditionally purchased and received from the Issuing



32









 






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 all related rights
hereunder and under the Guaranty and other Loan Documents; 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 3.6 if the Issuing Bank shall have received written notice
from any Lender on or before the Business Day prior to the date of its issuance of such
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 Borrower (other than
any payments such Lender is required to make under subparagraph (b) below) or to purchase an
interest from the Issuing Bank in any subsequent letters of credit issued by the Issuing
Bank on behalf of Borrower shall be reduced by such Lender’s Percentage of the undrawn
portion of each Facility Letter of Credit outstanding.




     (b) In the event that the Issuing Bank makes any payment under any Facility Letter of
Credit and the Borrower shall not have repaid such amount to the Issuing Bank pursuant to
Section 3.7 hereof, the Issuing Bank shall promptly notify the Administrative Agent,
which shall promptly notify each Lender of such failure, and each Lender shall promptly and
unconditionally pay to the Administrative Agent for the account of the Issuing Bank the
amount of such Lender’s Percentage of the unreimbursed amount of such payment, and the
Administrative Agent shall promptly pay such amount to the Issuing Bank. Lender’s payments
of its Percentage of such Reimbursement Obligation as aforesaid shall be deemed to be a Loan
by such Lender and shall constitute outstanding principal under such Lender’s Note. The
failure of any Lender to make available to the Administrative Agent for the account of the
Issuing Bank its Percentage of the unreimbursed amount of any such payment shall not relieve
any other Lender of its obligation hereunder to make available to the Administrative Agent
for the account of such Issuing Bank its Percentage of the unreimbursed amount of any
payment on the date such payment is to be made, but no Lender shall be responsible for the
failure of any other Lender to make available to the Administrative Agent its Percentage of
the unreimbursed amount of any payment on the date such payment is to be made. Any Lender
which fails to make any payment required pursuant to this Section 3.6(b) shall be
deemed to be a Defaulting Lender hereunder.




     (c) 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.




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



33









 






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




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



      3.7. Payment of Reimbursement Obligations.




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




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




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




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




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




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




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



34









 






together with interest at
the rate required to be paid by the Issuing Bank or the Administrative Agent upon the amount
required to be repaid by the Issuing Bank or the Administrative Agent.



      3.8. Compensation for Facility Letters of Credit.




     (a) The Borrower shall pay to the Administrative Agent, for the ratable account of the
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 (i)
the LIBOR Applicable Margin in effect from time to time in the case of Financial Letters of
Credit, and (ii) the LIBOR Applicable Margin from time to time minus 0.25% in the case of
Performance Letters of Credit. The Facility Letter of Credit Fee relating to any Facility
Letter of Credit shall be due and payable in arrears in equal
installments on the first Business Day of each month following the issuance of any
Facility Letter of Credit and, to the extent any such fees are then due and unpaid, on the
Maturity Date. The Administrative Agent shall promptly remit such Facility Letter of Credit
Fees, when paid, to the other Lenders in accordance with their Percentages thereof. The
Borrower shall not have any liability to any Lender for the failure of the Administrative
Agent to promptly deliver funds to any such Lender and shall be deemed to have made all such
payments on the date the respective payment is made by the Borrower to the Administrative
Agent, provided such payment is received by the time specified in Section 2.11
hereof.




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



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



Article IV.




CHANGE IN CIRCUMSTANCES





35









 








      4.1. Yield Protection. If the adoption of or change in any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or not having the
force of law), or any interpretation thereof, or the compliance of any Lender therewith,




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




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




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


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




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



36









 




Entitled “International Convergence of Capital Measurements and Capital Standards”, including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement. Without in any way
affecting the Borrower’s obligation to pay compensation actually claimed by a Lender under this
Section 4.2, the Borrower shall have the right to replace any Lender which has demanded
such compensation provided that Borrower notifies such Lender that it has elected to replace such
Lender and notifies such Lender and the Administrative Agent of the identity of the proposed
replacement Lender not more than six (6) months after the date of such Lender’s most recent demand
for compensation under this Section 4.2. The Lender being replaced shall assign its Percentage of
the Aggregate Commitment and its rights and obligations under this Facility to the replacement
Lender in accordance with the requirements of Section 13.3 hereof and the replacement
Lender shall assume such Percentage of the Aggregate Commitment and the related obligations under
this Facility prior to the Maturity Date to be extended, all pursuant to an assignment agreement
substantially in the form of Exhibit J hereto. The purchase by the replacement Lender shall be at
par (plus all accrued and unpaid interest and any other sums owed to such Lender being replaced
hereunder) which shall be paid to the Lender being replaced upon the execution and delivery of the
assignment.




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



      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 Borrower for any reason other than default by one or more
of the Lenders, Borrower will indemnify each Lender for any loss or cost incurred by such Lender
resulting therefrom, including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the ratable LIBOR Advance or Competitive Bid Loan, as the
case may be.



      4.5. Taxes.




     (i) All payments by the Borrower to or for the account of any Lender or the
Agent hereunder or under any Note shall be made free and clear of and without
deduction for any and all Taxes. If the Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder to any Lender or the
Administrative Agent, (a) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions



37









 






applicable to additional sums payable under this Section 4.5) such Lender or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had no such
deductions been made, (b) the Borrower shall make such deductions, (c) the Borrower
shall pay the full amount deducted to the relevant authority in accordance with
applicable law, and (d) the Borrower shall furnish to the Administrative Agent the
original copy of a receipt evidencing payment thereof within 30 days after such
payment is made.




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




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




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



38









 






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




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




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




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




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



      4.6. Lender Statements; Survival of Indemnity. To the extent reasonably possible, each
Lender shall designate an alternate Lending Installation with respect to its LIBOR Advances to
reduce any liability of Borrower to such Lender under Sections 4.1, 4.2 and
4.5 or



39









 




to avoid the unavailability of a LIBOR Advance, so long as such designation is not
disadvantageous to such Lender. Each Lender shall deliver a written statement of such Lender as to
the amount due, if any, under Sections 4.1, 4.2, 4.4 and 4.5
hereof. Such written statement shall set forth in reasonable detail the calculations upon which
such Lender determined such amount and shall be final, conclusive and binding on Borrower in the
absence of manifest error. The amount due in such statement shall not include amounts due under
Section 4.5 that are either attributable to facts known to the Lender as of the Agreement
Execution Date or that relate to a time period more than ninety (90) days prior to the giving of
such written statement. Determination of amounts payable under such Sections in connection with a
LIBOR Advance shall be calculated as though each Lender funded its LIBOR Advance through the
purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in
determining the Adjusted LIBOR Rate applicable to such Advance, whether in fact that is the case or
not. Unless otherwise provided herein, the amount specified in the written statement shall be
payable on demand after receipt by Borrower of the written statement. The obligations of Borrower
under Sections 4.1, 4.2, 4.4 and 4.5 hereof shall survive payment
of the Obligations and termination of this Agreement.




      4.7. Replacement of Lenders under Certain Circumstances. The Borrower shall be permitted
to replace any Lender which (a) is not capable of receiving payments without any deduction or
withholding of United States federal income tax pursuant to Section 4.5, or (b) cannot
maintain its 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 Event of Default or (after notice thereof to Borrower) no Default shall have occurred and be
continuing at the time of such replacement, (iii) the 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. Conditions Precedent to Closing. The Lenders shall not be required to make the
initial Advance hereunder, nor shall the Issuing Bank be required to issue the initial Facility
Letter of Credit hereunder, unless (i) all of the conditions set forth in Section 5.2 are
satisfied, and (ii) the Borrower shall have furnished to the Administrative Agent, in form and
substance



40









 




satisfactory to the Lenders and their counsel and with sufficient copies for the Lenders,
the following:





     (a) Certificates of Limited Partnership/Incorporation. A copy of the
Certificate of Limited Partnership for the Borrower and a copy of the articles of
incorporation of General Partner, each certified by the appropriate Secretary of State
or equivalent state official.




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




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




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




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




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




     (g) Loan Documents. Originals of the Loan Documents (in such quantities as the
Lenders may reasonably request), duly executed by authorized officers of the appropriate
entity.




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



41









 






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




     (j) Insurance. Original or certified copies of insurance policies or binders
therefor, with accompanying receipts showing current payment of all premiums, evidencing
that Borrower carries insurance on the Unencumbered Assets which satisfies the
Administrative Agent’s insurance requirements, including, without limitation:




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




     (ii) Loss of rental income insurance in the amount not less than one year’s
Gross Revenues from the Unencumbered Assets; and




     (iii) Comprehensive general liability insurance in the amount of $1,000,000 per
occurrence.



      All insurance must be carried by companies with a Best Insurance Reports (1992) Policyholder’s
and Financial Size Rating of “A-VII” or better.




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




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




     (ii) The most recent financial statements of the Borrower and General Partner
and a certificate from a Qualified Officer of the Borrower that no change in the
Borrower’s financial condition that would have a Material Adverse Effect has
occurred since March 31, 2005;




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




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



42









 






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




     (l) Change in Markets. The Administrative Agent shall have determined that (i)
since July 20, 2005, 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) if requested
by the Administrative Agent, 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 Agreement deems necessary to successfully syndicate the
Loans hereunder.




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



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



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




     (a) prior to each such Advance no Default or Event of Default shall have occurred and
be continuing under this Agreement or any of the Loan Documents and, if required by
Administrative Agent, Borrower shall deliver a certificate of Borrower to such effect; and




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



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



43









 





Article VI.




REPRESENTATIONS AND WARRANTIES




      Borrower hereby represents and warrants that:



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



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



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



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



      6.5. Solvency.




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



44









 






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




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



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



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



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



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



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



45









 





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



      6.12. Public Utility Holding Company Act. The Borrower is not a “holding company” or a
“subsidiary company” of a “holding company,” or an “affiliate” of a “holding company,” or of a
“subsidiary company” of a “holding company,” within the definitions of the Public Utility Holding
Company Act of 1935, as amended.



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



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



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



      6.16. Factual Information. All factual information heretofore or contemporaneously
furnished by or on behalf of the Borrower to the Lenders for purposes of or in connection with this
Agreement and the other Loan Documents and the transactions contemplated therein is, and all other
such factual information hereafter furnished by or on behalf of the Borrower to the Lenders will
be, true and
accurate (taken as a whole) in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time.



      6.17. ERISA. (i) Borrower is not an entity deemed to hold “plan assets” within the meaning
of ERISA or any regulations promulgated thereunder of an employee benefit plan (as defined in
Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan within the meaning of
Section 4975 of the Code, and (ii) the execution of this Agreement and the transactions
contemplated hereunder do not give rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code.



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



      6.19. Environmental Matters. Except as disclosed in Schedule 6.19, each of the
following representations and warranties is true and correct except to the extent that the facts
and



46









 




circumstances giving rise to any such failure to be so true and correct, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect:





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




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




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




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




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




     (vi) To the knowledge of Borrower during the ownership of the Properties by any
or all of Borrower, its Subsidiaries and Investment Affiliates,



47









 






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



      6.20. Insurance. Borrower has obtained the insurance which Borrower is required to furnish
to Lenders under Section 5.1(j) hereof.



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



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



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



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



      6.25. Subsidiaries. Schedule 6.25 hereto contains an accurate list of all of the
presently existing Subsidiaries of Borrower, setting forth the percentage of their respective
Capital Stock owned by it or its Subsidiaries. All of the issued and outstanding shares of Capital
Stock of such Subsidiaries have been duly authorized and issued and are fully paid and
non-assessable.



      6.26. Unencumbered Assets. Schedule 6.26 hereto contains a complete and accurate
description of Unencumbered Assets as of March 31, 2005 and as supplemented from time to time
including the entity that owns each Unencumbered Asset. With respect to each Project identified
from time to time as an Unencumbered Asset, Borrower hereby represents and warrants as follows
except to the extent disclosed in writing to the Lenders and approved by the Required Lenders
(which approval shall not be unreasonably withheld):




     (a) No portion of any improvement on the Unencumbered Asset is located in an area
identified by the Secretary of Housing and Urban Development or any successor thereto as an
area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or
the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located
within any such area, Borrower has obtained and will maintain the insurance prescribed in
Section 5.1(j) hereof.



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




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




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




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




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




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




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




     (i) There are no delinquent taxes, ground rents, water charges, sewer rents,
assessments, insurance premiums, leasehold payments, or other outstanding charges



49









 






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 6.26
with respect to a Project shall disqualify such Project from being an Unencumbered Asset for so
long as such breach continues (unless otherwise approved by the Required Lenders) but shall not
constitute a Default (unless the elimination of such Property as an Unencumbered Asset results in a
Default under one of the other provisions of this Agreement).



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



Article VII.




ADDITIONAL REPRESENTATIONS AND WARRANTIES




     The General Partner hereby represents and warrants that:



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



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



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



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



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



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



      7.7. Liens; Consents. The execution, delivery or performance of the Loan Documents
required to be delivered by the General Partner hereunder will not result in the creation of any
Lien on the Properties other than in favor of the Lenders. No consent to the transactions
hereunder is required from any ground lessor or mortgagee or beneficiary under a deed of trust or
any other party except as has been delivered to the Lenders.



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



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



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



      7.11. Public Utility Holding Company Act. The General Partner is not a “holding company”
or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company,” or of a
“subsidiary company” of a “holding
company,” within the definitions of the Public Utility Holding Company Act of 1935, as amended.



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



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



      7.14. Factual Information. All factual information heretofore or contemporaneously
furnished by or on behalf of the General Partner to the Lenders for purposes of or in connection
with this Agreement and the other Loan Documents and the transactions contemplated therein is, and
all other such factual information hereafter furnished by or on behalf of the General Partner to
the Lenders will be, true and accurate in all material respects (taken as a whole) on the date as
of which such information is dated or certified and not incomplete by omitting to state any
material fact necessary to make such information (taken as a whole) not misleading at such time.



      7.15. ERISA. (i) General Partner is not an entity deemed to hold “plan assets” within the
meaning of ERISA or any regulations promulgated thereunder of an employee benefit plan (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan within the meaning of
Section 4975 of the Code, and (ii) the execution of this Agreement and the transactions
contemplated hereunder do not give rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code.



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



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



      7.18. Subsidiaries. Schedule 7.18 hereto contains an accurate list of all of the
presently existing Subsidiaries of General Partner, setting forth their respective jurisdictions of
formation, the percentage of their respective Capital Stock owned by it or its Subsidiaries and the
Properties owned by them. All of the issued and outstanding shares of Capital Stock of such
Subsidiaries have been duly authorized and issued and are fully paid and non-assessable.



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



52









 





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



Article VIII.




AFFIRMATIVE COVENANTS




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



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




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




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




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




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




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



53









 






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



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




     (i) quarterly financial statements (including a balance sheet income statement
and cash flow statement) and related reports in form and substance satisfactory to
the Lenders not later than 45 days after the end of each of the first three fiscal
quarters, and not later than ninety (90) days after the end of each fiscal year, all
certified by Borrower’s chief financial officer or chief accounting officer,
including a statement of Funds From Operations for the General Partner, calculation
of the financial covenants described below, a description of Unencumbered Assets, a
listing of capital expenditures (in the level of detail as currently disclosed in
Borrower’s “Supplemental Information”), a report listing and describing all newly
acquired Properties, including their cash flow, cost and secured or unsecured
Indebtedness assumed in connection with such acquisition, if any, summary Property
information for all Properties, including, without
limitation, their Property Operating Income, occupancy rates, square footage,
property type and date acquired or built, and such other information as may be
requested to evaluate the quarterly compliance certificate delivered as provided
below;




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




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




     (iv) Not later than forty-five (45) days after the end of each of the first
three fiscal quarters, and not later than ninety (90) days after the end of the
fiscal year, a compliance certificate in substantially the form of Exhibit H
hereto signed by the Borrower’s chief financial officer or chief accounting officer
confirming that Borrower is in compliance with all of the covenants of the Loan
Documents, showing the calculations and computations necessary to determine
compliance with the financial covenants contained in this Agreement (including such



54









 






schedules and backup information as may be necessary to demonstrate such compliance)
and stating that to such officer’s best knowledge, there is no other Default or
Event of Default exists, or if any Default or Event of Default exists, stating the
nature and status thereof;




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




     (vi) As soon as possible and in any event within 30 days after receipt by the
Borrower, a copy of (a) any notice or claim to the effect that the Borrower or any
of its Subsidiaries is or may be liable to any Person as a result of the release by
such entity, or any of its Subsidiaries, or any other Person of any toxic or
hazardous waste or substance into the environment, and (b) any notice alleging any
violation of any federal, state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries or Investment Affiliates,
which, in either case, could be reasonably likely to have a Material Adverse Effect;




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




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




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




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



55









 





      8.3. Existence and Conduct of Operations. Except as permitted herein, maintain and
preserve its existence and all rights, privileges and franchises now enjoyed and necessary for the
operation of its business, including remaining in good standing in each jurisdiction in which
business is currently operated. The Borrower and the General Partner shall carry on and conduct
their respective businesses in substantially the same manner and in substantially the same fields
of enterprise as presently conducted. The Borrower will do, and will cause each of its
Subsidiaries to do, all things necessary to remain duly incorporated and/or duly qualified, validly
existing and in good standing as a real estate investment trust, corporation, general partnership,
limited liability company or limited partnership, as the case may be, in its jurisdiction of
incorporation/formation. The Borrower will maintain all requisite authority to conduct its
business in each jurisdiction in which the Properties are located and, except where the failure to
be so qualified would not have a Material Adverse Effect, in each jurisdiction required to carry on
and conduct its businesses in substantially the same manner as it is presently conducted, and,
specifically, neither the Borrower nor its Subsidiaries will undertake any business other than the
acquisition, development, ownership, management, operation and leasing of industrial properties and
ancillary businesses specifically related thereto, except that the Borrower and its Subsidiaries
and Investment Affiliates may invest in other assets subject to the certain limitations contained
herein with respect to the following specified categories of assets: (i) Unimproved Land; (ii)
other property holdings
(excluding cash, Cash Equivalents, non-industrial Properties and Indebtedness of any Subsidiary to
the Borrower); (iii) stock holdings other than in Subsidiaries; (iv) mortgages; and (v) joint
ventures and partnerships. The total investment in any one of categories (i), (ii), (iii), (iv) or
(v) shall not exceed 10% of Implied Capitalization Value and the total investment in all the
foregoing investment categories in the aggregate shall be less than or equal to twenty percent
(20%) of Market Value Net Worth. In addition to the foregoing restrictions, investments in
Unimproved Land which is not adjacent to existing improvements and not under active planning for
near term development as evidenced to the reasonable satisfaction of Administrative Agent shall not
exceed in the aggregate 5% of Implied Capitalization Value, no single industrial property shall
exceed 5% of Implied Capitalization Value and investments in development properties that are not
Preleased Assets Under Development shall not exceed 5% of Implied Capitalization Value. For the
purposes of this Section 8.3, all investments shall be valued in accordance with GAAP.



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



      8.5. Insurance. Provide a certificate of insurance from all insurance carriers who
maintain policies with respect to the Properties within thirty (30) days after the end of each
fiscal year, evidencing that the insurance required to be furnished to Lenders pursuant to
Section 5.1(j) hereof is in full force and effect. Borrower shall timely pay, or cause to
be paid, all premiums on all insurance policies required under this Agreement from time to time.
Borrower shall promptly notify its insurance carrier or agent therefor (with a copy of such
notification being provided simultaneously to Administrative Agent) if there is any occurrence
which, under the terms of any insurance policy then in effect with respect to the Properties,
requires such notification.



      8.6. Payment of Obligations. Pay all taxes, assessments, governmental charges and other
obligations when due, except such as may be contested in good faith or as to which a bona



56









 




fide dispute may exist, and for which adequate reserves have been provided in accordance with sound
accounting principles used by Borrower on the date hereof.




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



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



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



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



      8.11. Use of Proceeds. Use the proceeds of the Facility for the purposes of interim
funding for property acquisitions and closing costs.



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



      8.13. Distributions. Provided there is no Monetary Default then existing and provided
there is not an Event of Default relating to a breach of the financial covenants contained in
Section 9.10 below, the General Partner may make distributions to its shareholders provided
that the aggregate amount of distributions in any period of four consecutive fiscal quarters is not
in excess of 95% of its Funds From Operations for such period. Notwithstanding the foregoing,
unless at the time of distribution there is a Monetary Default, the General Partner shall be
permitted at all times to distribute whatever amount is necessary to maintain its tax status as a
real estate investment trust.



Article IX.




NEGATIVE COVENANTS




      The Borrower covenants and agrees that, so long as the Commitment shall remain available and
until full and final payment of all obligations incurred under the Loan Documents, without the
prior written consent of either all of the Lenders pursuant to Section 14.13(a)(vii) or the
consent of the Required Lenders in all other cases, it will not, and the General Partner will not
and, in the case of Sections 9.5 and 9.11, Borrower’s Subsidiaries will not:



57









 





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



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



      9.3. Change of Borrower Ownership. Allow (i) the General Partner to own less than
fifty-one percent (51%) of the partnership interests in Borrower or 100% of the stock in FIMC, (ii)
the Borrower to be controlled by a Person other than the General Partner, (iii) any pledge of,
other encumbrance on, or conversion to limited partnership interests of, any of the general
partnership interests in the Borrower, or (iv) any pledge, hypothecation, encumbrance, transfer or
other change in the ownership or the partnership interests in the Mortgage Partnership.



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



      9.5. Transfers of Unencumbered Assets. Transfer or otherwise dispose of (other than the
creation or incurrence of Liens permitted under Section 9.6) an Unencumbered Asset without
the prior written consent of the Required Lenders if the Value of such Unencumbered Asset, together
with the Value of any other Unencumbered Assets which have been transferred or disposed of during
the then-current fiscal quarter and the immediately preceding three (3) full fiscal quarters, would
exceed twenty-five percent (25%) of the sum of the Value of Unencumbered Assets at the beginning of
such period plus the increase therein as a result of all Projects added to Unencumbered Assets
during such period.



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




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




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



58









 






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




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




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


Liens permitted pursuant to this Section 9.6 shall be deemed to be “Permitted Liens”.




      9.7. Regulation U. Use any of the proceeds of the Facility in a manner which would cause
the Facility to be treated as a “Purpose Credit.”



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




     (a) as of the last day of any fiscal quarter, the ratio of (A) the sum of (1) EBITDA of
the Consolidated Operating Partnership plus (2) interest income (other than any interest
income from assets being used to support Defeased Debt) to (B) the sum of (1) Debt Service
plus, without duplication, (2) all payments on account of preferred stock or preferred
partnership units of any member of the Consolidated Operating Partnership for such quarter
plus (3) all ground lease payments due from any member of the Consolidated Operating
Partnership to the extent not deducted as an expense in calculating EBITDA of the
Consolidated Operating Partnership, to be less than 1.75 to 1.0, based on annualizing the
results of such fiscal quarter;




     (b) as of any day, Consolidated Total Indebtedness to exceed 55% of Implied
Capitalization Value of the Consolidated Operating Partnership;




     (c) as of any day, Indebtedness which does not bear interest at a fixed rate or is not
subject to interest rate protection products reasonably approved by the Administrative Agent
to exceed, in the aggregate, twenty percent (20%) of the Implied Capitalization Value of the
Consolidated Operating Partnership.




     (d) as of any day, the ratio of Value of Unencumbered Assets to outstanding
Consolidated Senior Unsecured Debt to be less than 1.60;




     (e) as of the last day of any fiscal quarter, the ratio obtained by dividing (a)
Property Operating Income from Unencumbered Assets qualifying for inclusion in the
calculation of Value of Unencumbered Assets for such quarter by (b) Debt Service on all
Consolidated Senior Unsecured Debt for such quarter to be less than 1.75 to 1;



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     (f) as of any day, Consolidated Secured Debt to exceed 35% of Implied Capitalization
Value of the Consolidated Operating Partnership;




     (g) as of the last day of any fiscal quarter, Market Value Net Worth of the
Consolidated Operating Partnership to be less than the sum of (i) $1,500,000,000 plus (ii)
seventy-five percent (75%) of the aggregate proceeds received (net of customary related fees
and expenses) in connection with any equity offering (including any issuance of shares in
the General Partner or units in the Borrower) after March 31, 2004.


To the extent the Consolidated Operating Partnership has Defeased Debt, both the underlying debt
and interest payable thereon and the financial assets used to defease such debt and interest earned
thereon shall be excluded from calculations of the foregoing financial covenants.




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



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



      9.11. Maximum Revenue from Single Tenant. Permit the rent revenue (exclusive of tenant
reimbursements) received from a single tenant during any quarter (as annualized), to exceed 7.5% of
the Consolidated Operating Partnership’s total rent revenue (as annualized) as of the last day of
such quarter, except where the Consolidated Operating Partnership’s noncompliance arises from a
merger of tenants or other causes outside of the Consolidated Operating Partnership’s control.



      9.12. Issuance of Senior Preferred Stock. Issue any Senior Preferred Stock without the
prior written consent of the Required Lenders.



Article X.




DEFAULTS




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




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



     10.2. Certain Covenants. The Borrower, General Partner and/or Consolidated Operating
Partnership, as the case may be, is not in compliance with any one or more of Sections
8.10, 8.13, 9.3, 9.4, 9.5, 9.6, 9.8,
9.9, 9.10 or 9.11 hereof.



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



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



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



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



     10.7. Covenants, Agreements and Other Conditions. The Borrower or the General Partner
fails to perform or observe any of the other covenants, agreements and conditions contained in
Articles VIII and IX (except for Sections 8.10, 8.13, 9.3,
9.4, 9.5, 9.6, 9.8, 9.9, 9.10 or 9.11
hereof) and elsewhere in this Agreement or any of the other Loan Documents in accordance with the
terms hereof or thereof, not specifically referred to herein, and such Default continues unremedied
for a period of thirty (30) days after written notice from Administrative Agent, provided, however,
that if such Default is susceptible of cure but cannot by the use of reasonable efforts be cured
within such thirty (30) day period, such Default shall not constitute an Event of Default under
this Section 10.7 so long as (i) the Borrower or the General Partner, as the case may be,
has commenced a cure within such thirty-day period and (ii) thereafter, Borrower or General
Partner, as the case may be, is proceeding to cure such default continuously and diligently and in
a manner reasonably satisfactory to Lenders and (iii) such default is cured not later than sixty
(60) days after the expiration of such thirty (30) day period.



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



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



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     10.10. Bankruptcy.




     (a) The General Partner, the Borrower or any Subsidiary having more than $10,000,000 of
Equity Value (as defined below) shall (i) have an order for relief entered with respect to
it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an assignment
for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any substantial portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking
to adjudicate it as a bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading denying
the material allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this Section
10.10(a), (vi) fail to contest in good faith any appointment or proceeding described in
Section 10.10(b) or (vii) not pay, or admit in writing its inability to pay, its
debts generally as they become due. As used herein, the term “Equity Value” of a Subsidiary
shall mean (1) Property Operating Income of such Subsidiary’s Properties owned as of the
Agreement Execution Date capitalized at a 10.5% rate, plus (2) the purchase price of any of
such Subsidiary’s Properties acquired after the Agreement Execution Date less (3) any
Indebtedness of such Subsidiary;




     (b) A receiver, trustee, examiner, liquidator or similar official shall be appointed
for the General Partner, Borrower or any Subsidiary having more than $10,000,000 of Equity
Value or any substantial portion of any of their Properties, or a proceeding described in
Section 10.10(a)(iv) shall be instituted against the General Partner, the Borrower
or any such Subsidiary and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) consecutive days.



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



     10.12. ERISA. Borrower or General Partner is deemed to hold “plan assets” within the
meaning of ERISA or any regulations promulgated thereunder of an employee benefit plan (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within the meaning of
Section 4975 of the Code).



     10.13. Revolving Credit Agreement. An Event of Default exists under the terms of the
Revolving Credit Agreement.



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



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



Article XI.



ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES



     11.1. Acceleration. If any Event of Default described in Section 10.10 hereof
occurs, the obligation of the Lenders to make Advances and of the Issuing Bank to issue Facility
Letters of Credit hereunder shall automatically terminate and the Obligations shall immediately
become due and payable. If any other Event of Default described in Article X hereof
occurs, such obligation to make Advances and to issue Facility Letters of Credit shall be
terminated and at the election of the Required Lenders, the Obligations may be declared to be due
and payable.



     In addition to the foregoing, following the occurrence of an Event of Default and so long as
any Facility Letter of Credit has not been fully drawn and has not been cancelled or expired by its
terms, upon demand by the Required Lenders the Borrower shall deposit in the Letter of Credit
Collateral Account cash in an amount equal to the 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 shall be invested by the Administrative Agent from time to time in its discretion in
certificates of deposit of JPMCB having a maturity not exceeding thirty (30) days. Such funds
shall be promptly applied by the Administrative Agent to reimburse the Issuing Bank for drafts
drawn from time to time under the Facility Letters of Credit and to pay any fees or other amounts
due with respect thereto. Such funds, if any, remaining in the Letter of Credit Collateral Account
following the payment of all Obligations in full shall, unless the Administrative Agent is
otherwise directed by a court of competent jurisdiction, be promptly paid over to the Borrower.



     11.2. Preservation of Rights; Amendments. No delay or omission of the Lenders in
exercising any right under the Loan Documents shall impair such right or be construed to be a
waiver of any Default or an acquiescence therein, and the making of an Advance notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the conditions precedent to such
Advance 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,



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conditions or provisions of the Loan
Documents whatsoever shall be valid unless in
writing signed by the Administrative Agent and the number of Lenders required hereunder and then
only to the extent in such writing specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all shall be available to the Lenders until
the Obligations have been paid in full.




Article XII.



THE ADMINISTRATIVE AGENT



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



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



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



     12.4. No Responsibility for Loans, Recitals, etc.Neither the Administrative Agent (in its
capacity as Administrative Agent) nor any of its directors, officers, agents or employees shall be



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responsible for or have any duty to ascertain, inquire into, or verify (i) any statement, warranty
or representation made in connection with any Loan Document or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of any obligor under any Loan
Document; (iii) the satisfaction of any condition specified in Article V, except receipt of
items required to be delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in connection
therewith. The Administrative Agent shall have no duty to disclose to the Lenders information that
is not required to be furnished by the Borrower to the Agent (either in its capacity as
Administrative Agent or in its individual capacity).




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



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



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



     12.8. Administrative Agent’s Reimbursement and Indemnification. The Lenders
agree to reimburse and indemnify the Administrative Agent ratably in accordance with
their respective Percentages (i) for any amounts not reimbursed by the Borrower for which the
Administrative Agent is entitled to reimbursement by the Borrower under the Loan Documents, (ii)
for any other reasonable expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and enforcement of the Loan
Documents, if not paid by Borrower, and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent (in
its capacity as Administrative Agent and not as a Lender) in any way relating to or arising out of
the Loan Documents or any other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any such other
documents, provided that no Lender shall be liable for any of the foregoing to the extent they
arise from the gross negligence or willful misconduct of the Administrative Agent.



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



     12.10. [Intentionally Omitted.]



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



     12.12. Successor Administrative Agent. The Administrative Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Administrative Agent or, if no successor Administrative Agent
has been appointed, forty-five days after the retiring Administrative Agent gives notice of its
intention to resign. The Administrative Agent may be removed at any time with or without 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 the resigning Administrative Agent’s giving notice of its
intention to resign, then the resigning Administrative Agent may appoint, on behalf of the Borrower
and the Lenders, a successor Administrative Agent. Notwithstanding the previous sentence, the
Administrative Agent may at any time without the consent of the Borrower or any Lender, appoint any
of its Affiliates which is a commercial bank as a successor Administrative Agent hereunder. If the
Administrative Agent has resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may perform all the duties of the Administrative Agent hereunder and the
Borrower shall make all payments in respect of the Obligations to the applicable Lender and for all
other purposes shall deal directly with the Lenders. No successor Administrative Agent shall be
deemed to be appointed hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial bank having capital and
retained earnings of at least $100,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,



66









 




privileges and
duties of the resigning or removed Administrative Agent. Upon the effectiveness of the resignation
or removal of the Administrative Agent, the resigning or removed Administrative Agent shall be
discharged from its duties and obligations hereunder and under the Loan Documents. After the
effectiveness of the resignation or removal of an Administrative Agent, the provisions of this
Article XII shall continue in effect for the benefit of such Administrative Agent in
respect of any actions taken or omitted to be taken by it while it was acting as the Administrative
Agent hereunder and under the other Loan Documents. In the event that there is a successor to the
Administrative Agent by merger, or the Administrative Agent assigns its duties and obligations to
an Affiliate pursuant to this Section 12.12, then the term “Prime Rate” as used in this
Agreement shall mean the prime rate, base rate or other analogous rate of the new Administrative
Agent.




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



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



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



     12.16. Defaulting Lenders. 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, such Defaulting Lender or all Lenders shall be immediately suspended until such
time as the Lender is no longer a Defaulting Lender. If a Defaulting Lender has failed to fund its
Percentage of any Advance and until such time as such Defaulting Lender subsequently funds its
Percentage of such Advance, all Obligations owing to such Defaulting Lender hereunder shall be
subordinated in right of payment, as provided in the following sentence, to the prior payment in
full of all principal of, interest on and fees relating to the Loans funded by the other Lenders in
connection with any such Advance in which the Defaulting Lender has not



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funded its Percentage (such
principal, interest and fees being referred to as “Senior Loans” for the purposes of this section).
All amounts paid by the Borrower and otherwise due to be applied to the Obligations owing to such
Defaulting Lender pursuant to the terms hereof shall be distributed by the Administrative Agent to
the other Lenders in accordance with their respective Percentages (recalculated for the purposes
hereof to exclude the Defaulting Lender) until all Senior Loans have been paid in full. At that
point, the “Defaulting Lender” shall no longer be deemed a Defaulting Lender. After the Senior
Loans have been paid in full equitable adjustments will be made in connection with future 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 12.16. 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 12.16 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 as provided above.




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



Article XIII.



BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS



     13.1. Successors and Assigns. The terms and provisions of the Loan Documents shall be
binding upon and inure to the benefit of the Borrower and the Lenders and their respective
successors and assigns permitted hereby, except that (i) the Borrower shall not have the right to
assign its rights or obligations under the Loan Documents without the prior written consent of each
Lender, (ii) any assignment by any Lender must be made in compliance with Section 13.3, and
(iii) any transfer by Participation must be made in compliance with Section 13.2. Any
attempted assignment or transfer by any party not made in compliance with this Section 13.1
shall be null and void, unless such attempted assignment or transfer is treated as a participation
in accordance with Section 13.3.3. The parties to this Agreement acknowledge that clause
(ii) of this Section 13.1 relates only to absolute assignments and this Section
13.1 does not prohibit assignments creating security interests, including, without limitation,
(x) any pledge or assignment by any Lender of all or any portion of its rights under this Agreement
and any Note to a Federal Reserve Bank or (y) in the case of a Lender which is a Fund, any pledge
or assignment of all or any portion of its rights under this Agreement and any Note to its trustee
in 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



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owner thereof for all purposes hereof unless and until such Person complies with Section
13.3; provided, however, that the Administrative Agent may in its discretion (but shall not be
required to) follow instructions from the Person which made any Loan or which holds any Note to
direct payments relating to such Loan or Note to another Person. Any assignee of the rights to any
Loan or any Note agrees by acceptance of such assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the owner of the rights to any Loan
(whether or not a Note has been issued in evidence thereof), shall be conclusive and binding on any
subsequent holder or assignee of the rights to such Loan.




     13.2. Participations.




     13.2.1 Permitted Participants; Effect. Any Lender may at any time sell to one
or more banks or other entities (“Participants”) participating interests in any Loan owing
to such Lender, any Note held by such Lender, any Commitment of such Lender or any other
interest of such Lender under the Loan Documents. In the event of any such sale by a Lender
of participating interests to a Participant, such Lender’s obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain the owner
of its Loans and the holder of any Note issued to it in evidence thereof for all purposes
under the Loan Documents, all amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests, and the Borrower and
the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under the Loan
Documents.




     13.2.2 Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of any
provision of the Loan Documents other than any amendment, modification or waiver with
respect to any Loan or Commitment in which such Participant has an interest which would
require consent of all of the Lenders pursuant to the terms of Section 14.13 or of
any other Loan Document.




     13.2.3 Benefit of Certain Provisions. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section 14.15(a)
in respect of its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly to it as a
Lender under the Loan Documents, provided that each Lender shall retain the right of setoff
provided in Section 14.15(a) with respect to the amount of participating interests
sold to each Participant. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 14.15(a), agrees
to share with each Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 14.15(b) as if each
Participant were a Lender. The Borrower further agrees that each Participant shall be
entitled to the benefits of Sections 4.1, 4.2, 4.4 and 4.5
to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section 13.3, provided that (i) a Participant shall not be entitled to receive
any greater payment under Section 4.1, 4.2, 4.4 or 4.5 than
the Lender who sold the participating interest to such Participant would have received had
it



69









 






retained such interest for its own account, unless the sale of such interest to such
Participant is made with the prior written consent of the Borrower, and (ii) any Participant
not incorporated under the laws of the United States of America or any State thereof agrees
to comply with the provisions of Section 4.5 to the same extent as if it were a
Lender.




13.3. Assignments.




     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 J
or in such other form as may be agreed to by the parties thereto. Each such assignment with
respect to a Purchaser which is not a Lender or an Affiliate of a Lender or an Approved Fund
shall either be in an amount equal to the entire applicable Commitment and Loans of the
assigning Lender or (unless each of the Borrower and the Administrative Agent otherwise
consents) be in an aggregate amount not less than $5,000,000. 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 Administrative 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. Any consent required under this Section
13.3.2 shall not be unreasonably withheld or delayed.




     13.3.3 Effect; Effective Date of Assignment. Upon (i) delivery to the
Administrative Agent of an assignment, together with any consents required by Sections
13.3.1 and 13.3.2, and (ii) payment of a $3,500 fee to the Administrative Agent
for processing such assignment (unless such fee is waived by the Administrative Agent), such
assignment shall become effective on the effective date specified in such assignment. The
assignment shall contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Loans under the applicable
assignment agreement constitutes “plan assets” as defined under ERISA and that the rights
and interests of the Purchaser in and under the Loan Documents will not be “plan assets”
under ERISA. On and after the effective date of such assignment, such Purchaser shall for
all purposes be a Lender party to this Agreement and any other Loan Document executed by or
on behalf of the Lenders and shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party thereto, and the
transferor Lender shall be released with respect to the Commitment and Loans assigned to
such Purchaser without any further consent or action by the Borrower, the Lenders or the
Administrative Agent. In the case of an assignment covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a Lender
hereunder but shall continue to be entitled to the benefits of, and subject to, those
provisions of this



70









 






Agreement and the other Loan Documents which survive payment of the
Obligations and termination of the applicable agreement. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with this
Section 13.3 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with Section
13.2. Upon the consummation of any assignment to a Purchaser pursuant to this
Section 13.3.3, the transferor Lender, the Administrative Agent and the Borrower
shall, if the transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that new Notes or, as appropriate, replacement Notes
are issued to such transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts reflecting their respective
Commitments, as adjusted pursuant to such assignment.




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



     13.4. Dissemination of Information. Borrower authorizes each Lender to disclose to any
Participant or Purchaser or any other Person acquiring an interest in the Loan Documents by
operation of law (each a “Transferee”) and any prospective Transferee any and all information in
such Lender’s possession concerning the creditworthiness of Borrower and General Partner. Each
Transferee shall agree in writing to keep confidential any such information which is not publicly
available.



     13.5. Tax Treatment. If any interest in any Loan Document is transferred to any Transferee
which is not incorporated under the laws of the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 4.5(ii).



Article XIV.



GENERAL PROVISIONS



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



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



71









 





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



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



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



     14.6. Expenses; Indemnification. Subject to the provisions of this Agreement, Borrower
will pay (a) all out-of-pocket costs and expenses incurred by the Administrative Agent and the
Arranger (including the reasonable fees, out-of-pocket expenses and other reasonable expenses of
counsel, which counsel may be employees of Administrative Agent) in connection with the
preparation, execution and delivery of this Agreement, the Notes, the Loan Documents and any other
agreements or documents referred to herein or therein and any amendments thereto, (b) all
out-of-pocket costs and expenses incurred by the Administrative Agent and the Lenders (including
the reasonable fees, out-of-pocket expenses and other reasonable expenses of counsel to the
Administrative Agent and the Lenders, which counsel may be employees of Administrative Agent or the
Lenders) in connection with the enforcement and protection of the rights of the Lenders under this
Agreement, the Notes, the Loan Documents or any other agreement or document referred to herein or
therein, and (c) all reasonable and customary costs and expenses of periodic audits by the
Administrative Agent’s personnel of the Borrower’s books and records provided that prior to an
Event of Default, Borrower shall be required to pay for only one such audit during any year. The
Borrower further agrees to indemnify the Lenders, their directors, officers and employees against
all losses, claims, damages, penalties, judgments, liabilities and reasonable expenses (including,
without limitation, all expenses of litigation or preparation therefor whether or not the Lenders
is a party thereto) which any of them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Advance hereunder, except that the
foregoing indemnity shall not apply to a Lender to the extent that any losses, claims, etc. are the
result of such Lender’s gross negligence or willful misconduct. The obligations of the Borrower
under this Section shall survive the termination of this Agreement.



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



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



72









 




review or inform the Borrower of any matter in connection with any phase of the Borrower’s business
or operations.




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



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



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



     14.12. Successors and Assigns. The terms and provisions of the Loan Documents shall be
binding upon and inure to the benefit of the Borrower and the Lenders and their respective
successors and assigns, except that the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents. Any assignee or transferee of the Notes agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any request, authority
or consent of any Person, who at the time of making such request or giving such authority or
consent is the holder of the Notes, shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Notes or of any note or notes issued in exchange therefor.



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



73









 




and is signed by the
Borrower, and Administrative Agent if the rights or duties of Administrative Agent are affected
thereby, and





     (a) each of the Lenders if such amendment or waiver




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




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




     (iii) changes the amount of such Lender’s Commitment (other than pursuant to an
assignment permitted under Section 13.3 or a reduction in the Aggregate
Commitment pursuant to Section 2.17 hereof) or the unpaid principal amount
of such Lender’s Note; or




     (iv) extends the Maturity Date; or




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




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




     (vii) modifies or waives any covenant contained in Sections 8.13,
9.3, 9.5, 9.6, 9.8 or 9.10 hereof; or




     (b) the Required Lenders, to the extent expressly provided for herein and in the case
of all other waivers or amendments if no percentage of Lenders is specified herein.



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



     14.15. Set-Off.




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



74









 






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



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



Article XV.



NOTICES



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




To the Borrower:


First Industrial, L.P.

c/o First Industrial Realty Trust, Inc.

311 South Wacker Drive

Suite 4000

Chicago, Illinois 60606

Attention: Mr. Scott Musil

Telecopy: (312) 895-9380




To General Partner:


First Industrial Realty Trust, Inc.

311 South Wacker Drive

Suite 4000

Chicago, Illinois 60606

Attention: Mr. Michael Havala

Telecopy: (312) 922-9851



75









 









Each of the above with a copy to:


Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLP

333 West Wacker Drive

Suite 2700

Chicago, Illinois 60606

Attention: Suzanne Bessette-Smith, Esq.

Telecopy: (312) 984-3150




To each Lender:


As shown below the Lenders’ signatures.




To the Administrative Agent:


JPMorgan Chase Bank, N.A.

1 Bank One Plaza

Mail Code: IL1-0315

Chicago, Illinois 60670

Attention: Corporate Real Estate

Telecopy: (312) 325-3122




With a copy to:


Sonnenschein Nath & Rosenthal LLP

8000 Sears Tower

Chicago, Illinois 60606

Attention: Steven R. Davidson, Esq.

Telecopy: (312) 876-7934



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



[Remainder of page intentionally left blank]



76









 








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



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

	 	 	 	By:	 	/s/ Scott A. Musil
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Sr. VP, Controller, Treasurer and
Asst. Sec.
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	GENERAL PARTNER:	 	FIRST INDUSTRIAL REALTY TRUST, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Scott A. Musil
	 	 	 	 	 
	 

	 	Title:	 	Sr. VP, Controller,
Treasurer and Asst. Sec.
	 	 	 	 	 





S-1









 







	 	 	 	 	 	 	 
	LENDERS:
	 	 	 	 	 	 
	 
	COMMITMENT:	 	JPMORGAN CHASE BANK, N.A., Individually and as
	 	 	Administrative Agent
	$150,000,000.00	 	 	 	 	 	 
	 

	 	By:	 	/s/ Michael P.
O’Keefe
	 	 	 	 	 
	 

	 	Title:	 	Associate
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:
	 
	 	 	1 Bank One Plaza
	 	 	Chicago, Illinois 60670
	 	 	Attention: Michael P. O’Keefe
	 	 	Telephone: 312/325-3161
	 	 	Telecopy: 312/325-3122






S-2









 








EXHIBIT A




INTENTIONALLY DELETED



 









 








EXHIBIT B-1




FORM OF NOTE



_______________________, 2005




     On or before the Maturity Date, as defined in that certain Unsecured Term Loan Agreement dated
as of ___, 2005 (the “Agreement”) between FIRST INDUSTRIAL, L.P., a Delaware limited
partnership (“Borrower”), First Industrial Realty Trust, Inc., a Maryland corporation,
JPMorgan Chase Bank, N.A., individually and as Administrative Agent for the Lenders (as such terms
are defined in the Agreement), and the other Lenders listed on the signature pages of the
Agreement, Borrower promises to pay to the order of ______(the
“Lender”), or its successors and assigns, the aggregate unpaid principal amount of all
Loans (other than Competitive Bid Loans) made by the Lender to the Borrower pursuant to Section
2.1 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 this Promissory Note
(“Note”) in full on or before the Maturity Date 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 and amount of each Advance and the
date and amount of each principal payment hereunder; provided, however, that the failure of the
Lender to so record shall not affect the obligations of the Borrower hereunder or under the other
Loan Documents.



     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 Event of Default or Default under the Agreement or any other Loan Document and
Lender exercises its remedies provided under the Agreement and/or any of the Loan Documents, then
in addition to all amounts recoverable by the Lender under such documents, Lender shall be entitled
to receive reasonable attorneys fees and expenses incurred by Lender in exercising 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.



 









 





     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.



	 	 	 	 	 	 	 
	 	 	FIRST INDUSTRIAL, L.P.
	 
	 	 	 	 	 	 
	 	 	By:	 	First Industrial Realty Trust, Inc., its general
	 	 	 	 	partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Its:	 	 
	 

	 	 	 	 	 	 





 









 






PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 
	 	 	Unpaid	 	 
	 	 	Principal	 	Notation
	Date	 	Balance	 	Made by
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 






 










 






EXHIBIT B-2




FORM OF COMPETITIVE BID NOTE



_________________________, 2005




     On or before the last day of each “Interest Period” applicable to a “Competitive Bid Loan”, as
defined in that certain Unsecured Term Loan Agreement dated as of , 2005 (the “Agreement”)
between FIRST INDUSTRIAL, L.P., a Delaware limited partnership (“Borrower”), First
Industrial Realty Trust, Inc., a Maryland corporation, JPMorgan Chase Bank, N.A., individually and
as Administrative Agent for the Lenders (as such terms are defined in the Agreement), 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 2.16 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 Maturity Date 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; provided,
however, that the failure of the Lender to so record shall not affect the obligations of the
Borrower hereunder or under the other Loan Documents.



     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 Event of Default or Default under the Agreement or any other Loan Document and
Lender exercises its remedies provided under the Agreement and/or any of the Loan Documents, then
in addition to all amounts recoverable by the Lender under such documents, Lender shall be entitled
to receive reasonable attorneys fees and expenses incurred by Lender in exercising 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.



 









 





     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.



	 	 	 	 	 	 	 
	 	 	FIRST INDUSTRIAL, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	First Industrial Realty Trust, Inc.,
its general partner
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:
	 	 	 	 
	 

	 	 	 	 	 	 





 









 






PAYMENTS OF PRINCIPAL




	 	 	 	 	 
	 
	 	Unpaid
	 	 
	Date
	 	Principal
	 	Notation
	 
	 	Balance
	 	Made by





 



 



 



 



 



 





 









 








EXHIBIT C-1




FORM OF COMPETITIVE BID QUOTE REQUEST



(Section 2.16(b))



	 	 	 
	To:

	 	JPMorgan Chase Bank, N.A.

as administrative agent (the “Agent”)
	 
	 	 
	From:

	 	First Industrial, L.P. (the “Borrower”)
	 
	 	 
	Re:

	 	Unsecured Term Loan Agreement dated as of___, 2005 among the Borrower, First Industrial Realty Trust,
Inc., the lenders from time to time party thereto, and
JPMorgan Chase Bank, N.A., as Agent for such 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 2.16(b) of the Agreement that we request
Competitive Bid Quotes for the following proposed Competitive Bid Loan(s):



     Borrowing Date: ___, 20___



	 	 	 
	Principal Amount1
	 	Interest Period2






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



     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.



	 	 	 	 	 	 	 	 	 
	 	 	FIRST INDUSTRIAL, L.P.	 	 
	 	 	By:	 	First Industrial Realty Trust, Inc., its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	 	 	 
	 

	 	 	 	 	 	 	 	 







 




			
	1	 	Amount must be at least $10,000,000 and an integral multiple of $1,000,000.
	 
	2	 	One month (Competitive LIBOR Margin) or up to Maturity Date (Absolute Rate), subject to the provisions of the definitions of
LIBOR Interest Period and Absolute Interest Period.




 









 










EXHIBIT C-2




INVITATION FOR COMPETITIVE BID QUOTES



(Section 2.16(c))



	 	 	 
	To:

	 	Each of the Lenders party to

the Agreement referred to below
	 
	 	 
	From:

	 	Invitation for Competitive Bid Quotes to

First Industrial, L.P. (the “Borrower”)






     Pursuant to Section 2.16(c) of the Unsecured Term Loan Agreement dated as of ___, 2005
among the Borrower, First Industrial Realty Trust, Inc., the lenders from time to time party
thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent for such 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: ___, 2005



	 	 	 
	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 2.16(d) 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
___, 20___.



	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:
	 	 	 	 
	 

	 	 	 	 	 	 





 









 






EXHIBIT C-3




COMPETITIVE BID QUOTE



(Section 2.16(d))



_______________, 20___




	 	 	 
	To:

	 	JPMorgan Chase Bank, N.A.,

as Administrative Agent
	 
	 	 
	Re:

	 	Competitive Bid Quote to First Industrial, L.P.

(the “Borrower”)






     In response to your invitation on behalf of the Borrower dated ___, 20___, we
hereby make the following Competitive Bid Quote pursuant to Section 2.16(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:                                                                                3



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

Amount4

	 	Interest

Period5
	 	[Competitive LIBOR

Margin6]
	 	[Absolute

Rate7]
	 	Minimum

Amount8






     We understand and agree that the offer(s) set forth above, subject to the satisfaction of the
applicable conditions set forth in the Unsecured Term Loan Agreement dated as of ___, 2005, among the
Borrower, First Industrial Realty Trust, Inc., the lenders from time to





 




			
	3	 	As specified in the related Invitation For
Competitive Bid Quotes.
	 
	4	 	Principal amount bid for each Interest Period may
not exceed the principal amount requested. Buds must be made for at least
$10,000,000 and integral multiples of $1,000,000.
	 
	5	 	One, two, three or six months or up to 180 days, as
specified in the related Invitation For Competitive Bid Quotes.
	 
	6	 	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”.
	 
	7	 	Specify rate of interest per annum (rounded to the
nearest 1/100 of 1%).
	 
	8	 	Specify minimum amount, if any, which the Borrower
may accept (see Section 2.16(d)(ii)(d)).




 









 










time party thereto, and JPMCB, NA, as Administrative Agent for such 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:
	 	 	 	 
	 

	 	 	 	 	 	 






 










 






EXHIBIT D




FORM OF GUARANTY



     This Guaranty is made as of                                         , 2005, by First Industrial Realty Trust, Inc., a Maryland
corporation (“Guarantor”), to and for the benefit of JPMorgan Chase Bank, N.A., a national banking
association, individually (“JPMCB”), and as administrative agent for itself and the lenders listed
on the signature pages of the Revolving Credit Agreement (as defined below) and their respective
successors and assigns (collectively, “Lender”).



RECITALS




     A. First Industrial, L.P., a Delaware limited partnership (“Borrower”), and Guarantor have
requested that Lender make an unsecured term loan available to Borrower in the aggregate principal
amount of up to $150,000,000 (“Facility”).



     B. Lender has agreed to make available the Facility to Borrower pursuant to the terms and
conditions set forth in a Unsecured Term Loan Agreement bearing even date herewith between
Borrower, the Lenders and Guarantor (“Term Loan Agreement”). All capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to such terms in the Term Loan Agreement.



     C. Borrower has executed and delivered to Lender one or more Promissory Notes each of even
date in the aggregate principal amount of $150,000,000 as evidence of its indebtedness to 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 Term Loan Agreement, are collectively referred to herein as the “Note”).
Borrower has also executed and delivered to each Lender a note (“Competitive Loan Note”) which
evidences any Competitive Bid Loans which may be made by such Lender under the Term Loan Agreement.



     D. Guarantor is the sole general partner of Borrower and, therefore, Guarantor will derive
financial benefit from the Facility evidenced by the Note, Term Loan Agreement and the other Loan
Documents. The execution and delivery of this Guaranty by Guarantor is a condition precedent to
the performance by Lender of its obligations under the Term Loan Agreement.



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 Lender:



     (a) the full and prompt payment of the principal of and interest on the Note and/or any
Competitive Bid Loan Note 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 Note, any Competitive Bid Loan Note, the Term Loan 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 Term Loan Agreement and the
Loan Documents.



     (d) 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.”



     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 Lender or the holder of the Note, to pay
all the Facility Indebtedness and to perform all the Obligations as are or then or thereafter
become due and owing or are to be performed under the terms of the Note, any Competitive Bid Loan
Note, the Term Loan Agreement and the other Loan Documents, and to pay any reasonable expenses
incurred by Lender in protecting, preserving, or defending its interest in the Property or in
connection with the Facility or under any of the Loan Documents, including, without limitation, all
reasonable attorneys’ fees and costs. Lender shall have the right, at its option, either before,
during or after pursuing any other right or remedy against Borrower or Guarantor, to perform any
and all of the Obligations by or through any agent, contractor or subcontractor, or any of their
agents, of its selection, all as Lender in its sole discretion deems proper, and Guarantor shall
indemnify and hold Lender free and harmless from and against any and all loss, damage, cost,
expense, injury, or liability Lender may suffer or incur in connection with the exercise of its
rights under this Guaranty or the performance of the Obligations, except to the extent the same
arises as a result of the gross negligence or willful misconduct of Lender.



     All of the remedies set forth herein and/or provided by any of the Loan Documents or law or
equity shall be equally available to Lender, and the choice by Lender of one such alternative over
another shall not be subject to question or challenge by Guarantor or any other person, nor shall
any such choice be asserted as a defense, set-off, or failure to mitigate damages in any action,
proceeding, or counteraction by Lender to recover or seeking any other remedy under this Guaranty,
nor shall such choice preclude Lender from subsequently electing to exercise a different remedy.
The parties have agreed to the alternative remedies hereinabove specified in part because they
recognize that the choice of remedies in the event of a failure hereunder will necessarily be and
should properly be a matter of business judgment, which the passage of time and events may or may
not prove to have been the best choice to maximize recovery by Lender at the lowest cost to
Borrower and/or Guarantor. It is the intention of the parties that such choice by Lender be given
conclusive effect regardless of such subsequent developments.



     3. Guarantor does hereby waive (i) notice of acceptance of this Guaranty by Lender 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 the
Borrower or which Guarantor or Borrower may have against Lender or the holder of the Note or the
holder of any Competitive Bid Loan Note (other than defenses relating to



 









 




payment of the Facility Indebtedness or the correctness of any allegation by Lender that
Borrower was in default in the performance of the Obligations), (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 Lender to inform Guarantor of any
facts Lender may now or hereafter know about Borrower, the Facility, or the transactions
contemplated by the Term Loan Agreement, it being understood and agreed that Lender has no duty so
to inform and that the Guarantor is fully responsible for being and remaining informed by the
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 the Borrower or any other action by any court or
governmental body with respect thereto, or to cause Lender to proceed against any other security
given to Lender in connection with the Facility Indebtedness or the Obligations. Credit may be
granted or continued from time to time by Lender to Borrower without notice to or authorization
from Guarantor, regardless of the financial or other condition of the Borrower at the time of any
such grant or continuation. Lender shall have no obligation to disclose or discuss with Guarantor
its assessment of the financial condition of Borrower. Guarantor acknowledges that no
representations of any kind whatsoever have been made by Lender to Guarantor. No modification or
waiver of any of the provisions of this Guaranty shall be binding upon Lender except as expressly
set forth in a writing duly signed and delivered on behalf of Lender. Guarantor further agrees
that any exculpatory language contained in the Term Loan Agreement, the Note and any Competitive
Bid Loan Note shall in no event apply to this Guaranty, and will not prevent Lender from proceeding
against Guarantor to enforce this Guaranty.




     4. Guarantor further agrees that Guarantor’s liability as guarantor shall in nowise 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 the Note
or any Competitive Bid Loan Note or by any forbearance or delay in collecting interest or principal
under the Note or any Competitive Bid Loan Note, or by any waiver by Lender under the Term Loan
Agreement or any other Loan Documents, or by Lender’s failure or election not to pursue any other
remedies it may have against Borrower, or by any change or modification in the Note, Term Loan
Agreement, any Competitive Bid Loan Note or any other Loan Documents, or by the acceptance by
Lender of any additional security or any increase, substitution or change therein, or by the
release by Lender 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 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
Term Loan 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 Lender may at any time enter into agreements with
Borrower to amend and modify the Note, Term Loan Agreement, any Competitive Bid Loan Note or other
Loan Documents, or any thereof, and may waive or release any provision or provisions of the Note,
the Term Loan Agreement, any Competitive Bid Loan Note and other Loan Documents or any thereof,
and, with reference to such instruments, may make and enter into any such agreement or agreements
as



 









 







Lender and Borrower may deem proper and desirable, without in any manner impairing this
Guaranty or any of Lender’s rights hereunder or any of the 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 this Guaranty may be enforced by
Lender without the necessity at any time of resorting to or exhausting any other security or
collateral given in connection herewith or with the Note, any Competitive Bid Loan Note, the Term
Loan Agreement, or any of the other Loan Documents, or resorting to any other guaranties, and
Guarantor hereby waives the right to require Lender 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 Lender from pursuing concurrently or successively all rights and
remedies available to it at law and/or in equity or under the Note, Term Loan Agreement, any
Competitive Bid Loan Note or any other Loan Documents, and the exercise of any of its rights or the
completion of any of its remedies shall not constitute a discharge of any of Guarantor’s
obligations hereunder, it being the purpose and intent of the 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 the Note, Term Loan Agreement, any Competitive Bid Loan Note or other Loan Documents
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 the Note, Term Loan Agreement, any Competitive Bid Loan
Note 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 Lender
had not been made, regardless of whether 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 Lender to any assignee of all or a portion of Lender’s
rights under the Loan Documents.



     7. If: (i) this Guaranty, the Note, any Competitive Bid Loan Note, or any other Loan Document
is placed in the hands of an attorney for collection or is collected through any legal proceeding;
(ii) an attorney is retained to represent Lender in any bankruptcy, reorganization, receivership,
or other proceedings affecting creditors’ rights and involving a claim under this Guaranty, the
Note, any Competitive Bid Loan Note, the Term Loan Agreement, or any Loan Document; (iii) an
attorney is retained 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 attorney is
retained to represent Lender in any other legal proceedings whatsoever in connection with this
Guaranty, the Note, any Competitive Bid Loan Note, the Term Loan 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 (as defined in the Term Loan Agreement)
alleging a breach by the Administrative Agent of its duties under the Loan Documents), then
Guarantor shall pay to Lender upon demand all reasonable attorney’s



 









 







fees, costs and expenses, including, without limitation, court costs, filing fees, recording
costs, expenses of foreclosure, title insurance premiums, survey costs, minutes of foreclosure, 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 Lender or the holder of the Note or any Competitive Bid Loan 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 agrees that until the entire Facility Indebtedness has
been paid in full, (i) Guarantor will not seek, accept, or retain for Guarantor’s own account, any
payment from Borrower on account of such subordinated debt, and (ii) any such payments to Guarantor
on account of such subordinated debt shall be collected and received by Guarantor in trust for
Lender and shall be paid over to Lender on account of the Facility Indebtedness without impairing
or releasing the obligations of Guarantor hereunder.



     10. Guarantor waives and releases any claim (within the meaning of 11 U.S.C. § 101) which
Guarantor may have against Borrower arising from a payment made by Guarantor under this Guaranty
and agrees not to assert or take advantage of any subrogation rights of Guarantor or Lender or any
right of Guarantor or Lender to proceed against (i) Borrower for reimbursement, or (ii) any other
guarantor or any collateral security or guaranty or right of offset held by Lender 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 waivers and
agreements of Guarantor set forth above constitute additional and cumulative benefits given to
Lender for its security and as an inducement for its extension of credit to Borrower. Nothing
contained in this Paragraph 10 is intended to prohibit Guarantor from making all distributions to
its constituent shareholders which are required by law from time to time in order for Guarantor to
maintain its status as a real estate investment trust in compliance with all applicable provisions
of the Code (as defined in the Term Loan Agreement).



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



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



          To the Guarantor:



First Industrial Realty Trust, Inc.

311 South Wacker Drive, Suite 4000

Chicago, Illinois 60606

Attention: Mr. Michael Havala

Telecopy: (312) 922-9851



          With a copy to:



Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLP

333 West Wacker Drive

Suite 2700

Chicago, Illinois 60606

Attention: Suzanne Bessette-Smith, Esq.

Telecopy: (312) 984-3150



          To the Lender:



c/o JPMorgan Chase Bank, N.A., as agent

1 Bank One Plaza

Chicago, Illinois 60670

Attention: Mike O’Keefe

Telecopy: 312/325-3122



          With a copy to:



Sonnenschein Nath & Rosenthal LLP

8000 Sears Tower

Chicago, Illinois 60606

Attention: Steven R. Davidson, Esq.

Telecopy: (312) 876-7934




 









 







or at such other address as the party to be served with notice may have furnished in writing to the
party seeking or desiring to serve notice as a place for the service of notice.




     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 Lender’s
successors and assigns.



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



     16. GUARANTOR 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 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.



	 	 	 	 	 
	 	 	FIRST INDUSTRIAL REALTY TRUST, INC.,
	 	 	a Maryland corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Its	 	 
	 

	 	 	 	 





 









 







	 	 	 	 	 	 	 
	STATE OF ILLINOIS


COUNTY OF COOK

	 	)

)

)
	
SS.	 	 	 






     I, the undersigned, a Notary Public, in and for said County, in the State aforesaid, DO HEREBY
CERTIFY, that                                         ,                                         of First Industrial Realty Trust, Inc., personally known to me to be the same
person whose name is subscribed to the foregoing instrument, appeared before me this day in person
and acknowledged that he signed and delivered the said instrument as his own free and voluntary act
and as the free and voluntary act of said corporation, for the uses and purposes therein set forth.



     GIVEN under my hand and Notarial Seal, this                     day of                                         , 2005.



                                                            

Notary Public



 









 





EXHIBIT E & F




OPINION OF BORROWER’S COUNSEL



AND



GENERAL PARTNER’S COUNSEL



See Attached.



 









 








EXHIBIT G




WIRING INSTRUCTIONS



	 	 	 
	To:

	 	JPMorgan Chase Bank, N.A.,
	 

	 	as Administrative Agent (the “Agent”)
	 

	 	under the Credit Agreement Described Below






	 	 	 	 	 
	 

	 	Re:
	 	Unsecured Term Loan Agreement, dated as of                                         , 2005 (as amended, modified,
renewed or extended from time to time, the “Agreement”), among First Industrial, L.P.
(the “Borrower”), First Industrial Realty Trust, Inc. (“General Partner”), JPMCB, 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 Credit
Agreement.






     The Administrative 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 Administrative Agent of a specific written
revocation of such instructions by the Borrower, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Borrower in accordance with
Section 15.1 of the Agreement or based on any telephonic notice made in accordance with the
Agreement.


Facility Identification Number(s)



Customer/Account Name First Industrial, L.P.



Transfer Funds To First Industrial, L.P.



For Account No. 5266610 (JPMCB)



Reference/Attention To Jon Fedler



Authorized Officer (Customer Representative) Date




	 	 	 
	 

	 	 
	 

	 	 
	(Please Print)

	 	Signature
	 
	 	 
	Bank Officer Name
	 	 
	 
	 	 
	 

	 	 
	(Please Print)

	 	Signature






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




 









 








EXHIBIT H




FORM OF COMPLIANCE CERTIFICATE

FOR THE PERIOD ENDING



	 	 	 
	To:

	 	The Administrative Agent and the Lenders
	 

	 	who are parties to the Agreement described below






     This Compliance Certificate is furnished pursuant to that certain Unsecured Term Loan
Agreement, dated as of                                         , 2005 (as amended, modified, renewed or extended from time to time, the
“Agreement”) among First Industrial, L.P. (the “Borrower”), First Industrial Realty Trust, Inc.
(the “General Partner”), JPMorgan Chase Bank, N.A., 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 [Chief Financial Officer] [Chief Accounting Officer] [Controller] of
the [Borrower] [General Partner].



     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 General Partner, the
Borrower and their respective Subsidiaries and Investment Affiliates during the accounting period
covered by the financial statements attached (or most recently delivered to the Administrative
Agent if none are attached).



     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 Material Adverse Financial Change, Event of
Default or Default during or at the end of the accounting period covered by the attached financial
statements or as of the date of this Compliance Certificate, except as set forth below.



     4. Schedule I (if attached) attached hereto sets forth financial data and computations and
other information evidencing the General Partner’s and the Borrower’s compliance with certain
covenants of the Agreement, all of which data, computations and information (or if no Schedule I is
attached, the data, computations and information contained in the most recent Schedule I attached
to a prior Compliance Certificate) are true, complete and correct in all material respects.



     5. The financial statements and reports referred to in Section 8.2(i),
8.2(iii) or 8.2(vii), as the case may be, of the Agreement which are delivered concurrently
with the delivery of this Compliance Certificate, if any, fairly present in all material respects
the consolidated financial condition and operations of the General Partner, the Borrower and their
respective Subsidiaries at such date and the consolidated results of their operations for the
period then-ended, in accordance with GAAP applied consistently throughout such period and with
prior periods and correctly state the amounts of Consolidated Total Indebtedness, Consolidated
Secured Debt, Consolidated Senior Unsecured Debt and the Values of all Unencumbered Assets as
determined pursuant to the Agreement.



 









 





     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:



     The foregoing certifications, together with the computations and information set forth in
Schedule I hereto and the financial statements delivered with this Compliance Certificate in
support hereof, are made and delivered this                      day of                                         , 20                    .



	 	 	 	 	 	 	 
	 	 	FIRST INDUSTRIAL, L.P.
	 
	 	 	 	 	 	 
	 	 	By:	 	FIRST INDUSTRIAL
	 	 	 	 	REALTY TRUST, INC., General Partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Print Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 






 










 






SCHEDULE I




CALCULATION OF COVENANTS




[quarter]




1. Permitted Investments (Section 8.3)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Maximum
	 	 	 	 	Percent of	 	Percent of	 	 
	 	 	 	 	Implied	 	Implied	 	 
	 	 	Investment	 	Capitalization	 	Capitalization	 	 
	Category	 	(i.e. Book Value)	 	Value	 	Value	 	 
	(a) Unimproved Land

	 	 	 	 	 	10%	 	 
	 
	 	 	 	 	 	 	 	 
	(b) other property holdings (excluding cash,
Cash Equivalents, non-industrial Properties
and Indebtedness of any Subsidiary to the
Borrower)

	 	 	 	 	 	10%	 	 
	 
	 	 	 	 	 	 	 	 
	(c) stock holdings other than in Subsidiaries

	 	 	 	 	 	10%	 	 
	 
	 	 	 	 	 	 	 	 
	(d) mortgages

	 	 	 	 	 	10%	 	 
	 
	 	 	 	 	 	 	 	 
	(e) joint ventures and partnerships

	 	 	 	 	 	10%	 	 
	 
	 	 	 	 	 	 	 	 
	(f) total investments in (a)-(e)

	 	 	 	 	 	20% of Market Value Net Worth
	 
	 	 	 	 	 	 	 	 
	(g) investments in Unimproved Land not
adjacent to existing improvements and not
under active planning for near term
development as a percentage of Implied
Capitalization Value

	 	 	 	 	 	5%
	 
	 	 	 	 	 	 	 	 
	(h) Investments in development properties
that are not Preleased Assets Under
Development as a percentage of Implied
Capitalization Value

	 	 	 	 	 	5%
	 
	 	 	 	 	 	 	 	 
	(i) Identify any single industrial
property in excess of 5%
of Implied Capitalization Value
(If none, insert “none”):
	 	 	 	 	 	 	 	 






2. Dividends (Section 8.13)





	 	(a)	 	Amount paid during most recent quarter
	 
	 	(b)	 	Amount paid during preceding three quarters
	 
	 	(c)	 	Funds From Operation during such four quarter period




 









 












     (i) GAAP net income for such period




     (ii) adjustments to GAAP net income per definition
of Funds From Operation (See Schedule)




     (iii) Funds From Operation



	 	 	 
	TOTAL DIVIDEND PAY OUT RATIO [(a) plus (b), divided by (c)(iii)]
	 	 
	 
	 	 
	Must be less than or equal to 95%:

	 	 






3. EBITDA To Fixed Charges (Section 9.8(a))





	 	(a)	 	EBITDA for the quarter most recently ended






        (i) Borrower and its Subsidiaries (without
deduction of any losses related to initial offering costs
of preferred stock which are written off due to the redemption
of such preferred stock)




        (ii) less GAAP income from Investment Affiliate




        (iii) Allocable EBITDA of Investment Affiliates
(See Schedule)





        (iv) EBITDA [(i) minus (ii) plus (iii)]




	 	(b)	 	Interest income deducted from (a) (other than as to
Defeased Debt)
	 
	 	(c)	 	Debt Service for the quarter most recently ended






        (i) GAAP interest expense (Borrower and
Subsidiaries)




        (ii) Capitalized interest not covered by interest
reserve




        (iii) Interest on Guaranteed Obligations




        (iv) Allocable Interest (Investment Affiliates)




        (v) Scheduled principal payments (including
Investment Affiliates)




        (vi) Interest Expense [sum of (i)-(v)]




	 	(d)	 	Preferred stock and partnership payments




 









 






	 	(e)	 	Ground lease payments (to the extent not deducted
as an expense in calculating EBITDA)
	 
	 	(f)	 	Total Fixed Charges





[c (vi) plus (d) plus (e)]




RATIO




	 	 	 
	[(a)(iv) plus (b) divided by (f)]:
	 	 
	 
	 	 
	Must be greater than or equal to: 1.75

	 	 







	4.	 	Consolidated Total Indebtedness Ratio (Section 9.8(b))






	 	(a)	 	Consolidated Total Indebtedness (See Schedule)
	 
	 	(b)	 	Implied Capitalization Value






        (i) Adjusted EBITDA for the most recent
four quarters




        (ii) less Adjusted EBITDA from all assets
under development, Rollover Projects, Projects that were
formerly Rollover Projects and from Projects
acquired or completed during such four quarter period




        (iii) plus full four quarter pro forma adjustment for
Projects acquired or completed during such four quarter period




        (iv) Adjusted EBITDA attributable to each Project
that was formerly a Rollover Project




        (v) $0




        (vi) greater of item (iv) and item (v)




        (vii) item (i) plus item (ii) plus item (iii)
plus item (vi)




        (viii) 8.5%




        (ix) (item (vii) divided by item (viii))




        (x) then-current book value of each asset
under development other than 100% Preleased Assets
Under Development




        (xi) 50% of item (x)



 











 





        (xii) then-current book value of each 100% Preleased
Asset Under Development




        (xiii) sum of (xi) and (xii)




        (xiv) 10% of Implied Capitalization Value




        (xv) lesser of item (xiii) and item (xiv)




        (xvi) then-current book value of each
Rollover Project




        (xvii) 50% of item (xvi)




        (xviii) Property Operating Income for each such Rollover
Project for the most recent four quarters




        (xix) 8.5%




        (xx) item (xviii) divided by (xix)




        (xxi) greater of item (xvii) and item (xx)




        (xxii) lesser of item (xxi) and item (xiv)




        (xxiii) Unrestricted Cash and Unrestricted Cash
Equivalents (including any cash on deposit with a qualified
intermediary and excluding any cash or cash equivalents
used to support Defeased Debt)




        (xxiv) first mortgage receivables




        (xxv) sum of (ix), (xv), (xxii), (xxiii) and lesser of
(xxiv) or (xiv) is “Implied Capitalization Value”



	 	 	 
	CONSOLIDATED TOTAL INDEBTEDNESS RATIO
	 	 
	 
	[(a) divided by (b) expressed as a percentage]:
	 	 
	Must be less than or equal to: 55%

	 	 






5. Floating Rate Indebtedness Ratio (Section 9.8(c))





     (a) Total Indebtedness not bearing interest at a
fixed rate or not subject to approved interest rate
protection products




     (b)
Implied Capitalization Value [line (xxv) in item 4(b) above]





 









 





	 	 	 	 	 
	FLOATING RATE INDEBTEDNESS RATIO
	 	 	 	 
	 
	[(a) divided by (b) expressed as a percentage]:
	 	 	 	 
	Must
be less than or equal to: 20%

	 	 	 	 






6. Value of Unencumbered Assets Ratio (Section 9.8(d))





	 	(a)	 	Value of Unencumbered Assets






        (i) Property Operating Income attributable to
Unencumbered Assets that are not assets under
development under GAAP owned by Borrower and
wholly-owned Subsidiaries as of end of quarter as
appropriately annualized (including pro forma Property
Operating Income for entire quarter for Unencumbered
Assets acquired during the quarter) (attach schedule
noting Property Operating Income for each
Unencumbered Asset as appropriately annualized)




        (ii) less Property Operating Income attributable
to each such Unencumbered Asset that was formerly a Rollover
Project




        (iii) Property Operating Income attributable to
each such Unencumbered Asset that was formerly a Rollover
Project




        (iv) $0




        (v) greater of item (iii) and item (iv)




        (vi) sum of items (i), (ii) and (v)




        (vii) 8.5%




        (viii) item (vi) divided by item (vii)




        (ix) Unrestricted cash, including cash on deposit
with qualified intermediary




        (x) GAAP value of each first mortgage receivable
secured by an income producing commercial property, provided
that no such first mortgage receivable is subject to any Lien




        (xi) GAAP value of Presold Assets Under
Development that are Unencumbered Assets




        (xii) Book value of each 100% Preleased Asset
Under Development that is an Unencumbered Asset



 









 






        (xiii) 50% of GAAP value of each other
asset under development that is an Unencumbered Asset




        (xiv) Deduction if amounts in (ix), (x), (xi), (xii)
and (xiii) exceed 20% of value of Unencumbered Assets




        (xv) then-current book value of each Rollover Project




        (xvi) 50% of item (xv)




        (xvii)
Property Operating Income for each such Rollover Project for the most recent four quarters




        (xviii) 8.5%




        (xix) item (xvii) divided by item (xviii)




        (xx) greater of item (xvi) and item (xix)




        (xxi) 10% of the Value of Unencumbered Assets




        (xxii) lesser of (xx) and (xxi)




        (xxiii) Sum of (viii) plus (ix) plus (x) plus (xi) plus (xii)
plus (xiii) minus (xiv) plus (xxii) is value of Unencumbered Assets



     (b) Consolidated Senior Unsecured Debt (provide
schedule of such Debt)




	 	 	 
	VALUE OF UNENCUMBERED ASSETS RATIO [(a) divided by (b)]:
	 	 
	 
	Must be greater than or equal to: 1.60

	 	 







	7.	 	Property Operating Income Ratio (Section 9.8(e))






     (a) Property Operating Income from all
Unencumbered Assets owned for any part
of the preceding quarter




     (b) Debt Service on Consolidated Senior
Unsecured Debt for the preceding quarter




        (i) Interest Expense (Borrower and Subsidiaries only)




        (ii) Regular principal payments (Borrower and
Subsidiaries)




        (iii) Debt Service [sum of (i) and (ii)]



UNENCUMBERED PROPERTY OPERATING INCOME RATIO [(a) divided by (b)]




 









 








Must be greater than or equal to: 1.75





8. Consolidated Secured Debt to Implied





Capitalization Value (Section 9.8(f))






	 	(a)	 	Consolidated Secured Debt






        (i) Secured Indebtedness of Borrower and
Subsidiaries




        (ii) Unsecured Indebtedness of Subsidiaries in
excess of $5,000,000




        (iii) Consolidated Secured Debt [sum of (i) plus (ii)]




	 	(b)	 	Implied Capitalization Value [line (xxv) in Item 4(b) above]
	 
	 	(c)	 	(a) divided by (b)





Must be less than or equal to: 35%




9. Minimum Market Value Net Worth (Section 9.8(g))






	 	(a)	 	Market Value Net Worth






        (i) Implied Capitalization Value
[line (xxv) in Item 4(b) above]




        (ii) Indebtedness of Borrower and Subsidiaries




        (iii) Market Value Net Worth [(i) minus (ii)]




	 	(b)	 	$1,500,000,000
	 
	 	(c)	 	product of .75 and net proceeds of stock and unit offerings since March 31, 2004
	 
	 	(d)	 	sum of (b) plus (c)





(a)(iii) must be greater than or equal to (d)




10. Maximum Revenue From a Single Tenant (Section 9.11)






(a) 7.5% of Consolidated Operating Partnership’s total rent
revenue as of last day of quarter, annualized




(b) Identify any tenant for which rent revenue (exclusive of tenant reimbursements) as
annualized exceeds amount shown in (a)



11. Transfers of Unencumbered Assets (Section 9.5)




 










 









     (a) Aggregate Value of all Unencumbered Assets
transferred during measuring period (including Unencumbered Asset
desired to be transferred)




     (b) Aggregate Value of Unencumbered Assets at
start of current measuring period (trailing 4 quarters)




     (c) Aggregate Value of Unencumbered Assets added
during current measuring period




     (d) 25% of sum of (b) and (c)


If Item (a) exceeds Item (d) then Borrower, General Partner, and Borrower’s Subsidiaries shall not
transfer or dispose of (except as otherwise permitted under the Agreement) an Unencumbered Asset
without the prior written consent of the Required Lenders.



NOTE: To the extent of any inconsistency between the form of this Compliance Certificate and the
terms of the Agreement, the terms of the Agreement shall prevail.




 









 








EXHIBIT I




Intentionally Deleted




 









 








EXHIBIT J




FORM OF 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 Standard 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]9



3. Borrower(s):



4. Administrative Agent:                                                                                 , as the agent under the Credit Agreement.



5. Credit Agreement: The [amount] Unsecured Term Loan Agreement dated as of ___among



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






 




			
	9	 	Select as applicable.




 









 






     6. Assigned Interest:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	Amount of	 	 
	 	 	Commitment/Loans for	 	Commitment/Loans	 	Percentage Assigned of
	Facility Assigned	 	all Lenders*	 	Assigned*	 	Commitment/Loans2
	 
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





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:                                                            






 









 








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



 









 




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.



 









 





EXHIBIT K




FORM OF DESIGNATION AGREEMENT




Dated _____________, 20__




     Reference is made to the Unsecured Term Loan Agreement dated as of , 2005 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”) among First
Industrial, L.P., a Delaware limited partnership (the “Borrower”), First Industrial Realty Trust,
Inc., the Lenders parties thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent (the
“Administrative Agent”) for the Lenders. Terms defined in the Credit Agreement are used herein
with the same meaning.



     [NAME OF DESIGNOR] (the “Designor”), [NAME OF DESIGNATED LENDER] (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 2.16 of the Credit
Agreement. Any assignment by Designor to Designee of its rights to make a Competitive Bid Loan
pursuant to such Section 2.16 shall be effective at the time of the funding for such Competitive
Bid Loan and not before such time.



     2. Except as set forth in Section 7 below, 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 General Partner or the performance or observance by the Borrower or
General Partner of 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 8.2 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 any 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.



     4. The Designee hereby appoints the Designor as the Designee’s agent and attorney in fact, and
grants to the 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 the Designee’s behalf all rights to vote and to grant and make 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 Lenders
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 and the Borrower. The effective date for this Designation Agreement (the “Effective Date”)
shall be the date of acceptance hereof by the Administrative Agent and the Borrower, unless
otherwise specified on the signature page thereto.



     6. The Administrative Agent shall not 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, for one year
and a day after the Maturity Date.



     7. The Borrower shall not 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, for one year and a day after
the Maturity Date.



     8. 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.



     9. Upon such acceptance and recording of this Designation Agreement by the Borrower and the
Administrative Agent, as of the Effective Date, the Designee shall be entitled to the benefits of
the Credit Agreement with a right to fund and receive payment of the principal and interest on
Competitive Bid Loans pursuant to Section 2.16 of the Credit Agreement and otherwise with the
rights and obligations of a Participant of Designor thereunder.



     10. 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.



     11. 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



 









 




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




     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 10                                        ,                     , 20__




	 	 	 	 	 
	 	 	[NAME OF DESIGNOR], as Designor
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	[NAME OF DESIGNATED LENDER],
	 	 	as Designee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Applicable Lending Office (and address for notices):
	 
	 	 	 	 
	 

	 	 	 	[ADDRESS]






Accepted this ____ day of _______________, 20__




	 	 	 	 	 	 	 
	[AGENT], as Administrative Agent	 	[FIRST INDUSTRIAL, L.P.]
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	FIRST INDUSTRIAL REALTY TRUST, INC., its general partner
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 
	Title:

	 	 	 	Title:	 
	 

	 	 
	 	 	 	 







 




			
	 	 	10This date should be no earlier than five Business
Days after the delivery of this Designation Agreement to the Administrative
Agent.




 









 










EXHIBIT L




INTENTIONALLY DELETED




 









 








SCHEDULE 6.9




LITIGATION (BORROWER)




See attached.




 









 








SCHEDULE 6.19




ENVIRONMENTAL COMPLIANCE




Environmental Reports and Agreements




NONE




 









 








SCHEDULE 6.24




TRADE NAMES




See attached.




 









 








SCHEDULE 6.25




SUBSIDIARIES (BORROWER)




See attached.




 









 








SCHEDULE 6.26




UNENCUMBERED ASSETS AS OF MARCH 31, 2005




See Attached.




 









 








SCHEDULE 7.8




LITIGATION (GENERAL PARTNER)




See attached.




 









 








SCHEDULE 7.18




SUBSIDIARIES (GENERAL PARTNER)




See attached.