exv10w1



 





EXHIBIT 10.1




FIFTH AMENDED AND RESTATED




UNSECURED REVOLVING CREDIT AGREEMENT




DATED AS OF SEPTEMBER 28, 2007




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




J. P. MORGAN SECURITIES INC., and




WACHOVIA CAPITAL MARKETS, LLC




AS CO-LEAD ARRANGERS AND JOINT BOOK RUNNERS




AND




WACHOVIA BANK, NATIONAL ASSOCIATION,




AS SYNDICATION AGENT




AND




REGIONS BANK and U. S. BANK, NATIONAL ASSOCIATION




AS DOCUMENTATION AGENTS




AND




COMERICA BANK, PNC BANK, NATIONAL ASSOCIATION and WELLS FARGO

BANK NATIONAL ASSOCIATION




AS CO-AGENTS














 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Article I. DEFINITIONS AND ACCOUNTING TERMS	 	 	2	 
	1.1.
	 	Definitions	 	 	2	 
	1.2.
	 	Financial Standards	 	 	23	 
	1.3.
	 	Classification of Loans and Borrowings	 	 	23	 
	1.4.
	 	Exchange Rates	 	 	23	 
	1.5.
	 	Currency Conversion	 	 	24	 
	Article II. THE FACILITY	 	 	24	 
	2.1.
	 	The Facility	 	 	24	 
	2.2.
	 	Principal Payments	 	 	25	 
	2.3.
	 	Requests for Borrowings; Responsibility for Borrowings	 	 	25	 
	2.4.
	 	Evidence of Credit Extensions	 	 	25	 
	2.5.
	 	Loans and Borrowings	 	 	26	 
	2.6.
	 	Requests for Borrowings	 	 	26	 
	2.7.
	 	Interest Elections	 	 	28	 
	2.8.
	 	Applicable Margins	 	 	29	 
	2.9.
	 	Other Fees	 	 	30	 
	2.10.
	 	Minimum Amount of Each Borrowing	 	 	30	 
	2.11.
	 	Interest	 	 	30	 
	2.12.
	 	Method of Payment	 	 	31	 
	2.13.
	 	Default	 	 	31	 
	2.14.
	 	Lending Installations	 	 	31	 
	2.15.
	 	Non-Receipt of Funds by Administrative Agent	 	 	32	 
	2.16.
	 	Swingline Loans	 	 	32	 
	2.17.
	 	Competitive Bid Loans	 	 	33	 
	2.18.
	 	Voluntary Reduction of Aggregate Commitment Amount	 	 	37	 
	2.19.
	 	Increase in Aggregate Commitment	 	 	38	 
	2.20.
	 	Application of Moneys Received	 	 	38	 
	2.21.
	 	Special Provisions Regarding Foreign Currency Loans	 	 	39	 
	Article III. THE LETTER OF CREDIT SUBFACILITY	 	 	41	 
	3.1.
	 	Obligation to Issue	 	 	41	 
	3.2.
	 	Types and Amounts	 	 	42	 
	3.3.
	 	Conditions	 	 	42	 
	3.4.
	 	Procedure for Issuance of Facility Letters of Credit	 	 	43	 
	3.5.
	 	Reimbursement Obligations; Duties of Issuing Bank	 	 	45	 
	3.6.
	 	Participation	 	 	47	 
	3.7.
	 	Payment of Reimbursement Obligations	 	 	48	 
	3.8.
	 	Compensation for Facility Letters of Credit	 	 	49	 
	3.9.
	 	Letter of Credit Collateral Account	 	 	50	 
	3.10.
	 	Conversion	 	 	50	 
	Article IV. CHANGE IN CIRCUMSTANCES	 	 	50	 
	4.1.
	 	Yield Protection	 	 	50	 
	4.2.
	 	Changes in Capital Adequacy Regulations	 	 	51	 
	4.3.
	 	Availability of Eurocurrency Borrowings	 	 	52	 






i









 






	 	 	 	 	 	 	 
	4.4.
	 	Funding Indemnification	 	 	52	 
	4.5.
	 	Taxes	 	 	52	 
	4.6.
	 	Lender Statements; Survival of Indemnity	 	 	55	 
	4.7.
	 	Replacement of Lenders under Certain Circumstances	 	 	55	 
	4.8.
	 	Change in Law	 	 	56	 
	Article V. CONDITIONS PRECEDENT	 	 	56	 
	5.1.
	 	Conditions Precedent to Closing	 	 	56	 
	5.2.
	 	Conditions Precedent to Subsequent Borrowings	 	 	59	 
	Article VI. REPRESENTATIONS AND WARRANTIES	 	 	59	 
	6.1.
	 	Existence	 	 	59	 
	6.2.
	 	Corporate/Partnership Powers	 	 	59	 
	6.3.
	 	Power of Officers	 	 	60	 
	6.4.
	 	Government and Other Approvals	 	 	60	 
	6.5.
	 	Solvency	 	 	60	 
	6.6.
	 	Compliance With Laws	 	 	60	 
	6.7.
	 	Enforceability of Agreement	 	 	60	 
	6.8.
	 	Title to Property	 	 	61	 
	6.9.
	 	Litigation	 	 	61	 
	6.10.
	 	Events of Default	 	 	61	 
	6.11.
	 	Investment Company Act of 1940	 	 	61	 
	6.12.
	 	Public Utility Holding Company Act	 	 	61	 
	6.13.
	 	Regulation U	 	 	61	 
	6.14.
	 	No Material Adverse Financial Change	 	 	61	 
	6.15.
	 	Financial Information	 	 	61	 
	6.16.
	 	Factual Information	 	 	62	 
	6.17.
	 	ERISA	 	 	62	 
	6.18.
	 	Taxes	 	 	62	 
	6.19.
	 	Environmental Matters	 	 	62	 
	6.20.
	 	Insurance	 	 	63	 
	6.21.
	 	No Brokers	 	 	63	 
	6.22.
	 	No Violation of Usury Laws	 	 	64	 
	6.23.
	 	Not a Foreign Person	 	 	64	 
	6.24.
	 	No Trade Name	 	 	64	 
	6.25.
	 	Subsidiaries	 	 	64	 
	6.26.
	 	Unencumbered Assets	 	 	64	 
	Article VII. ADDITIONAL REPRESENTATIONS AND WARRANTIES	 	 	66	 
	7.1.
	 	Existence	 	 	66	 
	7.2.
	 	Corporate Powers	 	 	66	 
	7.3.
	 	Power of Officers	 	 	66	 
	7.4.
	 	Government and Other Approvals	 	 	66	 
	7.5.
	 	Compliance With Laws	 	 	66	 
	7.6.
	 	Enforceability of Agreement	 	 	67	 
	7.7.
	 	Liens; Consents	 	 	67	 
	7.8.
	 	Litigation	 	 	67	 
	7.9.
	 	Events of Default	 	 	67	 






ii









 






	 	 	 	 	 	 	 
	7.10.
	 	Investment Company Act of 1940	 	 	67	 
	7.11.
	 	Public Utility Holding Company Act	 	 	67	 
	7.12.
	 	No Material Adverse Financial Change	 	 	67	 
	7.13.
	 	Financial Information	 	 	67	 
	7.14.
	 	Factual Information	 	 	68	 
	7.15.
	 	 ERISA	 	 	68	 
	7.16.
	 	Taxes	 	 	68	 
	7.17.
	 	No Brokers	 	 	68	 
	7.18.
	 	Subsidiaries	 	 	68	 
	7.19.
	 	Status	 	 	68	 
	Article VIII. AFFIRMATIVE COVENANTS	 	 	69	 
	8.1.
	 	Notices	 	 	69	 
	8.2.
	 	Financial Statements, Reports, Etc	 	 	70	 
	8.3.
	 	Existence and Conduct of Operations	 	 	72	 
	8.4.
	 	Maintenance of Properties	 	 	72	 
	8.5.
	 	Insurance	 	 	72	 
	8.6.
	 	Payment of Obligations	 	 	73	 
	8.7.
	 	Compliance with Laws	 	 	73	 
	8.8.
	 	Adequate Books	 	 	73	 
	8.9.
	 	ERISA	 	 	73	 
	8.10.
	 	Maintenance of Status	 	 	73	 
	8.11.
	 	Use of Proceeds	 	 	73	 
	8.12.
	 	Pre-Acquisition Environmental Investigations	 	 	73	 
	8.13.
	 	Distributions	 	 	73	 
	Article IX. NEGATIVE COVENANTS	 	 	73	 
	9.1.
	 	Change in Business	 	 	74	 
	9.2.
	 	Change of Management of Properties	 	 	74	 
	9.3.
	 	Change of Borrower Ownership	 	 	74	 
	9.4.
	 	Use of Proceeds	 	 	74	 
	9.5.
	 	Liens	 	 	74	 
	9.6.
	 	Regulation U	 	 	75	 
	9.7.
	 	Indebtedness and Cash Flow Covenants	 	 	75	 
	9.8.
	 	Mergers and Dispositions	 	 	76	 
	9.9.
	 	Negative Pledge	 	 	76	 
	Article X. DEFAULTS	 	 	76	 
	10.1.
	 	Nonpayment of Principal	 	 	76	 
	10.2.
	 	Certain Covenants	 	 	76	 
	10.3.
	 	Nonpayment of Interest and Other Obligations	 	 	76	 
	10.4.
	 	Cross Default	 	 	77	 
	10.5.
	 	 Loan Documents	 	 	77	 
	10.6.
	 	Representation or Warranty	 	 	77	 
	10.7.
	 	Covenants, Agreements and Other Conditions	 	 	77	 
	10.8.
	 	No Longer General Partner	 	 	77	 
	10.9.
	 	Material Adverse Financial Change	 	 	77	 
	10.10.
	 	Bankruptcy	 	 	77	 






iii









 






	 	 	 	 	 	 	 
	10.11.
	 	Legal Proceedings	 	 	78	 
	10.12.
	 	ERISA	 	 	78	 
	10.13.
	 	[Intentionally Omitted.]	 	 	78	 
	10.14.
	 	Failure to Satisfy Judgments	 	 	78	 
	10.15.
	 	Environmental Remediation	 	 	79	 
	Article XI. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES	 	 	79	 
	11.1.
	 	Acceleration	 	 	79	 
	11.2.
	 	Preservation of Rights; Amendments	 	 	80	 
	Article XII. THE ADMINISTRATIVE AGENT	 	 	80	 
	12.1.
	 	Appointment	 	 	80	 
	12.2.
	 	Powers	 	 	81	 
	12.3.
	 	General Immunity	 	 	81	 
	12.4.
	 	No Responsibility for Loans, Recitals, etc	 	 	81	 
	12.5.
	 	Action on Instructions of Lenders	 	 	81	 
	12.6.
	 	Employment of Administrative Agents and Counsel	 	 	82	 
	12.7.
	 	Reliance on Documents; Counsel	 	 	82	 
	12.8.
	 	Administrative Agent’s Reimbursement and Indemnification	 	 	82	 
	12.9.
	 	Rights as a Lender	 	 	82	 
	12.10.
	 	[Intentionally Omitted.]	 	 	82	 
	12.11.
	 	Lender Credit Decision	 	 	82	 
	12.12.
	 	Successor Administrative Agent	 	 	83	 
	12.13.
	 	Notice of Defaults	 	 	83	 
	12.14.
	 	Requests for Approval	 	 	84	 
	12.15.
	 	Copies of Documents	 	 	84	 
	12.16.
	 	Defaulting Lenders	 	 	84	 
	12.17.
	 	Delegation to Affiliates	 	 	85	 
	12.18.
	 	Co-Agents, Managing Agents, Documentation Agent, Syndication Agent, etc	 	 	85	 
	Article XIII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS	 	 	85	 
	13.1.
	 	Successors and Assigns	 	 	85	 
	13.2.
	 	Participations.	 	 	86	 
	13.3.
	 	Assignments	 	 	87	 
	13.4.
	 	Dissemination of Information	 	 	88	 
	13.5.
	 	Tax Treatment	 	 	88	 
	Article XIV. GENERAL PROVISIONS	 	 	89	 
	14.1.
	 	Survival of Representations	 	 	89	 
	14.2.
	 	Governmental Regulation	 	 	89	 
	14.3.
	 	Taxes	 	 	89	 
	14.4.
	 	Headings	 	 	89	 
	14.5.
	 	No Third Party Beneficiaries	 	 	89	 
	14.6.
	 	Expenses; Indemnification	 	 	89	 
	14.7.
	 	Severability of Provisions	 	 	90	 
	14.8.
	 	Nonliability of the Lenders	 	 	90	 
	14.9.
	 	Choice of Law	 	 	90	 
	14.10.
	 	Consent to Jurisdiction	 	 	90	 
	14.11.
	 	Waiver of Jury Trial	 	 	90	 






iv









 






	 	 	 	 	 	 	 
	14.12.
	 	Successors and Assigns	 	 	91	 
	14.13.
	 	Entire Agreement; Modification of Agreement	 	 	91	 
	14.14.
	 	Dealings with the Borrower	 	 	92	 
	14.15.
	 	Set-Off	 	 	92	 
	14.16.
	 	Counterparts	 	 	92	 
	14.17.
	 	Patriot Act CIP Notice	 	 	92	 
	14.18.
	 	Judgment Currency	 	 	92	 
	Article XV. NOTICES	 	 	93	 
	15.1.
	 	Giving Notice	 	 	93	 
	15.2.
	 	Change of Address	 	 	95	 






EXHIBITS




	 	 	 	 	 
	A
	 	—	 	Commitment Amounts
	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
	G
	 	—	 	Wiring Instructions
	H
	 	—	 	Form of Compliance Certificate
	I
	 	—	 	Form of Assignment Agreement
	J
	 	—	 	Form of Designation Agreement
	K
	 	—	 	Form of Amendment






v











 





FIFTH AMENDED AND RESTATED UNSECURED REVOLVING CREDIT

AGREEMENT




     THIS FIFTH AMENDED AND RESTATED UNSECURED REVOLVING CREDIT AGREEMENT is entered into as of
September 28, 2007 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”);



     JPMORGAN CHASE BANK, N.A. (“JPMCB”), a national bank organized under the laws of the United
States of America having an office at 277 Park Avenue, 2nd Floor, New York, New York
10172 as Administrative Agent (“Administrative Agent”) for the Lenders (as defined below);



     WACHOVIA BANK, NATIONAL ASSOCIATION as Syndication Agent (“Syndication Agent”);



     REGIONS BANK and U.S. BANK, NATIONAL ASSOCIATION as Documentation Agents (“Documentation
Agents”); and



     COMERICA BANK, PNC BANK, NATIONAL ASSOCIATION and WELLS FARGO BANK NATIONAL ASSOCIATION as
Co-Agents (“Co-Agents”).



     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, the General Partner, the Administrative Agent and certain of the Lenders are
parties to the “Existing Credit Agreement” (as defined below).



     C. The Borrower has requested that the Existing Credit Agreement (the “Facility”) be amended
and restated, to extend the maturity date of the Facility and to amend certain other provisions of
the Existing Credit Agreement further as hereinafter set forth. The Administrative Agent and the
Lenders have agreed to do so.



     D. 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 2.17.



     “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 have deducted overhead related to specific properties.



     “Adjusted LIBOR Rate” means, with respect to (x) a Eurocurrency Borrowing in Dollars
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 Eurocurrency Borrowings, the LIBOR Applicable Margin in effect from time to time during
such LIBOR Interest Period, or in the case of Eurocurrency Borrowings made as Competitive Bid
Loans, the Competitive LIBOR Margin established in the Competitive Bid Quote applicable to such
Competitive Bid Loan or (y) a Eurocurrency Borrowing in Qualified Foreign Global Currencies, the
sum of the Base LIBOR Rate applicable to such LIBOR Interest Period, the LIBOR Applicable Margin
and the Mandatory Costs.



     “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 Borrowing” means a Borrowing that bears interest at the Adjusted
Prime Rate.



     “Administrative Agent” means JPMCB, 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, it being understood that matters concerning
Qualified Foreign Global Currency Loans will be administered by J.P. Morgan Europe Limited.



     “Administrative Office” means the New York Administrative Office or the London
Administrative Office, as applicable.



2









 





     “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 total of all Domestic Revolving
Commitments and Global Revolving Commitments, which as of the Agreement Execution Date is
$500,000,000, subject to Borrower’s right to reduce the Aggregate Commitment pursuant to
Section 2.18 and to increase the Aggregate Commitment pursuant to Section 2.19.



     “Agreement” means this Fifth Amended and Restated Unsecured Revolving Credit Agreement
and all amendments, modifications and supplements hereto.



     “Agreement Execution Date” shall mean September 28, 2007, the date on which all of the
parties hereto have executed this Agreement.



     “Alternative Currency” means any currency that is freely available, freely
transferable and freely convertible into Dollars and in which dealings in deposits are carried on
in the London interbank market, provided that such currency is acceptable to the
Administrative Agent and the applicable Issuing Bank.



     “Alternative Currency LC Exposure” means at any time, the sum of (a) the Dollar
Equivalent of the aggregate undrawn and unexpired amount of all outstanding Alternative Currency
Letters of Credit at such time plus (b) the Dollar Equivalent of the aggregate principal amount of
all LC Disbursements in respect of Alternative Currency Letters of Credit that have not yet been
reimbursed at such time.



     “Alternative Currency Letter of Credit” means a Facility Letter of Credit denominated
in an Alternative Currency.



     “Applicable Cap Rate” means 7.75%.



     “Applicable Margin” means the applicable margins set forth in the table in Section
2.8 used in calculating the interest rate applicable to the various types of Borrowings, 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 2.8.



     “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 J.P. Morgan Securities Inc. and Wachovia Capital Markets, LLC and
their successors in their capacity as Co-Lead Arrangers.



3









 





     “Assets Under Development” means, as of any date of determination, any Project which
is under construction and then treated as an asset under development under GAAP.



     “Base LIBOR Rate” means, with respect to any Eurocurrency Borrowing, for any Interest
Period, the rate appearing on the relevant page of the Telerate screen (or any successor to or
substitute for such screen, providing rate quotations comparable to those currently provided on
such page of such screen, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to deposits in Dollars or the
relevant Qualified Global Currency, as the case may be, in the relevant interbank market) at
approximately 11:00 a.m., London time, two Business Days prior (or for Loans in Sterling, on the
value date) to the commencement of such Interest Period, as the rate for deposits in such currency
with a maturity comparable to such Interest Period. If such rate is not available at such time for
any reason, the “Base LIBOR Rate” with respect to such Eurocurrency Borrowing for such
Interest Period shall be the rate at which deposits in the lowest multiple of 1,000,000 units of
the relevant currency, the Dollar Equivalent of which is at least $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period.



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



     “Borrowing” means (a) Loans of the same Class and Type, made, converted or continued
on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in
effect, (b) a Swingline Loan, or (c) a Competitive Bid Loan.



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



     “Borrowing Notice” is defined in Section 2.6 hereof.



     “Business Day” means a day, other than a Saturday, Sunday or holiday, on which banks
are open for business in New York City (with respect to Loans denominated in Dollars) or London,
England (with respect to Loans denominated in a Qualified Foreign Global Currency and with respect
to Adjusted LIBOR Rate); provided that (a) with respect to any borrowings, disbursements
and payments in respect of and calculations, interest rates and Interest Periods pertaining to
Eurocurrency Loans, such day is also a day on which banks are open for general business in the
principal financial center of the country of the relevant currency and (b) with respect to notices
and determinations in connection with, and payments of principal and interest on, Loans denominated
in Euros, such day is also a day on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer System (TARGET) (or, if such clearing system ceases to be operative, such other
clearing system (if any) determined by the Administrative Agent to be a suitable replacement) is
open for settlement of payment in Euros.



     “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



4









 







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, provided that all such Cash
Equivalents would qualify as cash equivalents in accordance with GAAP.



     “Change in Law” has the meaning set forth in Section 4.1.



     “Change in Control” means the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of Equity Interests representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the General Partner.



     “Class” means when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Domestic Revolving Loans, Global Revolving Loans,
Swingline Loans or Competitive Bid Loans, and, when used in reference to any Commitment, refers to
whether such Commitment is a Domestic Revolving Commitment or Global Revolving Commitment.



     “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.



     “Collateral Letter of Credit” means any irrevocable unconditional Letter of Credit
issued in the name of the Administrative Agent for the benefit of the Lenders in form and substance
satisfactory to the Administrative Agent and drawn on a bank having a rating of at least AA by S&P
and otherwise satisfactory to the Administrative Agent.



     “Commitment” means, for each Lender, a Domestic Revolving Commitment, a Global
Revolving Commitment, or any combination thereof.



     “Competitive Bid Borrowing Notice” is defined in Section 2.17(f).



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



     “Competitive Bid Loan” is a Loan made pursuant to Section 2.17 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”).



5









 





     “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.



     “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.



     “Currencies” means the then lawful currency of a particular nation at such time
whether or not the name of such currency is the same as it was on the date of this Agreement.



6









 





     “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 Borrowing, a rate equal to the interest rate
applicable to such Borrowing 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 J.



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



     “Dollar Equivalent” means, on any date of determination, (a) for the purposes of
determining compliance with Article VIII or Article IX or the existence of a Default under Article
X (other than as set forth in clause (b) below) with respect to any amount denominated in a
currency other than Dollars, the equivalent in Dollars of such amount, determined in good faith by
the Borrower in a manner consistent with the way such amount is or would be reflected on the
Borrower’s audited consolidated financial statements for the fiscal year in which such
determination is made and (b) solely with respect to determining the outstanding amount hereunder
denominated in an Alternative Currency or a Qualified Foreign Global Currency, the amount of
Dollars that may be purchased with such amount of such currency at the Exchange Rate (determined as
of the most recent Exchange Rate Date) with respect to such currency on such date.



7









 





     “Domestic Percentage” means, with respect to any Domestic Revolving Lender, the
percentage of the total Domestic Revolving Commitments represented by such Lender’s Domestic
Revolving Commitment. If the Domestic Revolving Commitments have terminated or expired, the
Domestic Percentages shall be determined based upon the Domestic Revolving Commitments most
recently in effect, giving effect to any assignments.



     “Domestic Revolving Commitment” means with respect to each Lender, the commitment, if
any, of such Lender to make Domestic Revolving Loans and to acquire participations in Facility
Letters of Credit and Swingline Loans hereunder, as such commitment may be changed from time to
time pursuant to this Agreement. The amount of each Lender’s Domestic Revolving Commitment as of
the date hereof is set forth on Exhibit A or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Domestic Revolving Commitment, as applicable. The
aggregate amount of the Domestic Revolving Commitments is $400,000,000 as of the Agreement
Execution Date.



     “Domestic Revolving Exposure” means with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Domestic Revolving Loans and its LC Exposure and
Swingline Exposure at such time.



     “Domestic Revolving Facility” is defined in the definition of Facility.



     “Domestic Revolving Lender” means a Lender with a Domestic Revolving Commitment or
with Domestic Revolving Exposure.



     “Domestic Revolving Loan” means a Loan made pursuant to Section 2.1(a) (i)



     “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 but including all Net Economic Gains resulting from all Borrower sales, so long
as the amount of such Net Economic Gains included in EBITDA does not exceed 20% of the 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). Net Economic Gains measures the value created in the Borrower’s capital recycling
activities. Net Economic Gains are calculated by subtracting from gain on sale of real estate
(calculated in accordance with GAAP, including gains on sale of real estate classified as
discontinued operations), the recapture of accumulated depreciation and amortization on real estate
sold (excluding the recapture of accumulated amortization related to above/below market leases and
lease inducements as this amortization is included in revenues and Borrower’s EBITDA).



8









 





     “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.



     “EMU” means Economic and Monetary Union as contemplated in the Treaty.



     “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 Interests” means shares of common stock or other equity ownership interests in
a Person, if such equity ownership interests have ordinary voting rights.



     “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.



     “Euro” means the single currency of participating member states introduced in
accordance with the provisions of Article 109(1)4 of the Treaty and, in respect of all payments to
be made under this Agreement in Euros, means immediately available, freely transferable funds.



     “Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBOR Rate.



     “Exchange Rate” means, on any day, for purposes of determining the Dollar Equivalent
of any other currency, the rate at which such other currency may be exchanged into Dollars at the
time of determination on such day on the Reuters WRLD Page for such currency. In the event that
such rate does not appear on any Reuters WRLD Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent and the Borrower, or, in the absence of such an agreement, such
Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange operations in respect of
such currency are then being conducted, at or about such time as the Administrative Agent shall
elect after determining that such rates shall be the basis for determining the Exchange Rate, on
such date for the purchase of Dollars for delivery two (2) Business Days later; provided that if at
the time of any such determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any reasonable method it deems appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.



9









 





     “Exchange Rate Date” means, if on such date any outstanding Revolving Exposure is (or
any Revolving Exposure that has been requested at such time would be) denominated in a currency
other than Dollars, each of:




     (a) the first Business Day of each calendar month,




     (b) if a Default has occurred and is continuing, the date a Sharing Event occurs and
any other Business Day designated as an Exchange Rate Date by the Administrative Agent in
its sole discretion, and




     (c) each date (with such date to be reasonably determined by the Administrative Agent)
that is on or about the effective date of (i) a Borrowing Notice or a
Conversion/Continuation Notice with respect to any Borrowing or (ii) each request for the
issuance, amendment, renewal or extension of any Facility Letter of Credit denominated in a
currency other than Dollars.



     “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 Administrative Agent is
incorporated or organized or (ii) the jurisdiction in which the Administrative Agent’s or such
Lender’s principal executive office of such Lender’s applicable Lending Installation is located.



     “Existing Credit Agreement” means that certain Fourth Amended and Restated Unsecured
Revolving Credit Agreement dated as of August 23, 2005, as amended.



     “Facility” means each of (a) the Domestic Revolving Commitments and the extensions of
credit made thereunder (the “Domestic Revolving Facility”) and (b) the Global Revolving
Commitments and the Global Revolving Loans made hereunder (the “Global Revolving Facility”
and, together with the Domestic Revolving Facility, the “Revolving Facility” or
“Facility”).



     “Facility Fee” and “Facility Fee Rate” are defined in Section 2.9(b).



     “Facility Letter of Credit” means a Financial Letter of Credit or Performance Letter
of Credit issued under the Domestic Revolving Facility.



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



     “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 11 a.m. (New York 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.



10









 





     “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.



     “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.



     “Global Revolving Facility” is defined in the definition of Facility.



     “Global Revolving Commitment” means with respect to each Lender, the commitment, if
any, of such Lender to make Global Revolving Loans hereunder, expressed as an amount representing
the maximum aggregate amount of such Lender’s Global Revolving Exposure hereunder, as such
commitment may be changed from time to time pursuant to this Agreement. The amount of each
Lender’s Global Revolving Commitment as of the date hereof is set forth on Exhibit A, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed its Global Revolving
Commitment, as applicable. The aggregate amount of the Global Revolving Commitments is
$100,000,000 as of the date hereof.



11









 





     “Global Revolving Exposure” means with respect to any Lender at any time, the sum of
(a) the aggregate outstanding principal amount of such Lender’s Global Revolving Loans at such time
that are denominated in Dollars plus (b) the Dollar Equivalent of the aggregate outstanding
principal amount of such Lender’s Global Revolving Loans at such time that are denominated in
Qualified Foreign Global Currencies.



     “Global Revolving Lender” means a Lender with a Global Revolving Commitment or with
Global Revolving Exposure.



     “Global Revolving Loan” means a Loan made pursuant to Section 2.1 (a)(ii).



     “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.



     “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



12









 







(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 the then current book value of each Asset Under Development, plus (iii) the
then current book value of Unimproved Land, plus (iv) with respect to each Rollover Project, an
amount equal to 50% of the then-current book value, determined in accordance with GAAP, of such
Rollover Project (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. 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 (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 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 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.



13









 





     “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 loans after
they become 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.



     “Judgment Currency” is defined in Section 14.18(a).



     “Judgment Currency Conversion Date” is defined in Section 14.18(a).



     “LC Disbursement” means a payment made by the applicable Issuing Bank pursuant to a
Facility Letter of Credit.



     “LC Exposure” means at any time, the Dollar Equivalent of the sum of (a) the aggregate
undrawn amount of all outstanding Facility Letters of Credit, plus (b) the aggregate amount of all
LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such



14









 







time.
The LC Exposure of any Domestic Revolving Lender at any time shall be its Domestic Percentage of
the total LC Exposure at such time.



     “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 Borrowings 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 Applicable Margin” means, as of any date with respect to any Eurocurrency
Borrowing, the Applicable Margin in effect for such Eurocurrency Borrowing as determined in
accordance with Section 2.8 hereof.



     “LIBOR Interest Period” means, with respect to a Eurocurrency Borrowing, a period of
one, two, three, six or twelve months (to the extent that periods of six or twelve months are
generally available from the Lenders), as selected in advance by the Borrower, 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 Competitive Bid 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.



     “London Administrative Office” means the Administrative Agent’s office located at 125
London Wall, London EC2Y 5AJ, Attention of Agency Department, or such other office in London as may
be designated by the Administrative Agent by written notice to the Borrower and the Lenders.



15









 





     “Mandatory Costs” means the cost imputed to the Lenders of compliance with the
requirements of (a) the Bank of England or the Financial Services Authority (or, in either case,
any other authority which replaces all or any of its functions) or (b) European Central Bank,
expressed as a rate per annum and determined in accordance with Schedule 1.1.



     “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 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 Borrowing 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 28, 2012, 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).



16









 





     “New York Administrative Office” means the Administrative Agent’s office designated on
its signature page to this Agreement or such other office in New York City as may be designated by
the Administrative Agent by written notice to the Borrower and the Lenders.



     “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 Borrowings, the LC Exposure 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.



     “Obligation Currency” is defined in Section 14.18(a).



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



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



     “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.



     “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.



     “Prime Applicable Margin” means the Applicable Margin in effect for an Adjusted Prime
Rate Borrowing as determined in accordance with Section 2.8 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.



     “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.



17









 





     “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 Foreign Global Currency” means any Qualified Global Currency other than
Dollars.



     “Qualified Global Currency” means (a) Dollars (borrowed in New York City), and
Sterling, Euros, Canadian Dollars and Yen (all of which shall be borrowed in London), and (b) any
other eurocurrency designated by the Borrower with the consent of the Administrative Agent and each
Global Revolving Lender.



     “Qualified Global Currency Borrowing” means any Borrowing comprised of Qualified
Global Currency Loans.



     “Qualified Global Currency Loan” means any Loan denominated in a Qualified Global
Currency.



     “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 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 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



18









 







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 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 2.6 hereof or a Competitive Bid Loan pursuant to Section 2.17
hereof.



     “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 Facility Lenders” means with respect to any Facility, the holders of more
than 51% of the Revolving Commitments for the applicable Facility (or, in the case of the
termination of the Revolving Commitments, the holders of more than 51% of the aggregate unpaid
principal amount of Revolving Exposure outstanding under such Facility, except that for purposes of
determining Required Facility Lenders for the Domestic Revolving Facility after the termination of
the Commitments, the outstanding Competitive Bid Loans of the Lenders shall be included in their
Revolving Exposures.



19









 





     “Required Lenders” means Lenders in the aggregate having at least 51% of the Revolving
Commitment or, if the applicable Revolving Commitment has been terminated, Lenders in the aggregate
holding at least 51% of the aggregate unpaid principal amount of the outstanding Borrowings.



     “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 Commitments” means the aggregate of the Domestic Revolving Commitments and
the Global Revolving Commitments.



     “Revolving Exposure” means with respect to any Lender at any time, the sum of such
Lender’s Domestic Revolving Exposure and Global Revolving Exposure.



     “Revolving Facility” is defined in the definition of Facility.



     “Revolving Lenders” means Domestic Revolving Lenders and Global Revolving Lenders.



     “Revolving Loans” means Domestic Revolving Loans and Global Revolving Loans.



     “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.



     “Sharing Event” means (i) the occurrence of a Default under Section 10.10,
(ii) the termination of the Commitments pursuant to Section 11.1, or (iii) the acceleration
of the maturity date of the Loans by the Administrative Agent upon the occurrence of a Default.



     “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.




20












 




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



     “Swingline
Commitment” means the obligation of the Swingline Lenders to make Swingline Loans not exceeding the aggregate amount of their Domestic Revolving Commitment.



     “Swingline Exposure” means the outstanding principal balance of all Swingline
Borrowings.



     “Swingline Lenders” shall mean JPMCB and Wachovia Bank, National Association, each in
their capacity as a Lender.



     “Swingline Loan” means a Loan made by the Swingline Lenders under the special
availability provisions described in Section 2.16 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 Domestic Exposure” means at any time, the sum of the aggregate Domestic
Revolving Exposures for each of the Domestic Revolving Lenders.



     “Total Global Exposure” means at any time, the sum of the aggregate Global Revolving
Exposures for each of the Global Revolving Lenders.



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



     “Transferee” is defined in Section 13.4 hereof.



     “Treaty” means the Treaty establishing the European Economic Community, being the
Treaty of Rome of March 25, 1957 as amended by the Single European Act 1986 and the Maastricht
Treaty (which was signed on February 7, 1992 and came into force on November 1, 1993) and as may
from time to time be further amended, supplemented or otherwise modified.



     “Type” when used in reference to any Loan or Borrowing, refers to the rate by
reference to which interest on such Loan, or on the Loans comprising such Borrowing, is determined
and the currency in which such Loan, or the Loans comprising such Borrowing, are denominated. For
purposes hereof, “rate” shall include the Adjusted LIBOR Rate and Adjusted Prime Rate, and
“currency” shall include Dollars and any Qualified Global Currency permitted hereunder.



     “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-



21









 







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 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
such Project and all Capital Stock of such Wholly-Owned Subsidiary or any other intervening
Wholly-Owned Subsidiary between the Borrower and 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 (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
Asset Under Development 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),
and (d) exceed 20% of the total Value of Unencumbered Assets), plus (e) with respect to
each Rollover Project, an amount equal to 50% of the then-current book value, determined in
accordance with GAAP, of each Rollover Project (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 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



22









 







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 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.



     1.3. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Eurocurrency
Loan”) or by Class and Type (e.g., a “Eurocurrency Revolving Loan”). Borrowings also may be
classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a
“Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency Revolving Borrowing”).



     1.4. Exchange Rates.




     (a) Not later than 1:00 p.m., New York City time, on each Exchange Rate Date on which
there are any Loans denominated in a Qualified Foreign Global Currency or any Alternative
Currency Letters of Credit, the Administrative Agent shall (i) determine the Exchange Rate
as of such Exchange Rate Date to be used for calculating the Dollar Equivalent amounts of
each currency in which a Global Revolving Loan, Alternative Currency Letter of Credit or
unreimbursed LC Disbursement is denominated and (ii) give notice thereof to the Borrower and
the Lenders. The Exchange Rates so determined shall remain effective until the next
succeeding Exchange Rate Date and shall (other than for the purpose of converting into
Dollars, under Sections 3.5, 3.6, 3.8, 3.9 and the
obligations of the Borrowers and the Domestic Revolving Lenders in respect of LC
Disbursements that have not been reimbursed when due) be the Exchange Rates employed in
converting any amounts between the applicable currencies pursuant to this Agreement.



23









 






     (b) Not later than 5:00 p.m., New York City time, on each Exchange Rate Date, the
Administrative Agent shall (i) determine the Global Revolving Exposure or the Alternative
Currency LC Exposure, as the case may be, on such date (after giving effect to any Global
Revolving Loans to be made or any Alternative Currency Letters of Credit to be issued,
renewed, extended or terminated in connection with such determination) and (ii) notify the
Borrower and, if applicable, each Issuing Bank of the results of such determination.



     1.5. Currency Conversion.




     (a) If more than one currency or currency unit are at the same time recognized by the
central bank of any country as the lawful currency of that country, then (i) any reference
in the Loan Documents to, and any obligations arising under the Loan Documents in, the
currency of that country shall be translated into or paid in the currency or currency unit
of that country designated by the Administrative Agent in consultation with Borrower and
(ii) any translation from one currency or currency unit to another shall be at the official
rate of exchange recognized by the central bank for conversion of that currency or currency
unit into the other, rounded up or down by the Administrative Agent as it deems appropriate.




     (b) If a change in any currency of a country occurs, this Agreement shall be amended
(and each party hereto agrees to enter into any supplemental agreement necessary to effect
any such amendment) to the extent that the Administrative Agent specifies to be necessary to
reflect the change in currency and to put the Lenders in the same position, so far as
possible, that they would have been in if no change in currency had occurred.



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, each Lender
in the applicable Facility agrees, severally and not jointly, (i) to make Domestic Revolving
Loans in Dollars to the Borrower from time to time prior to the Maturity Date in an
aggregate principal amount that will not result in such Lender’s Domestic Revolving Exposure
exceeding such Lender’s Domestic Revolving Commitment, or the Total Domestic Exposure plus
the amount of all outstanding Competitive Bid Loans to exceed the aggregate amount of the
Domestic Revolving Commitment, and (ii) to make Global Revolving Loans in Dollars or in one
or more other Qualified Global Currencies (as specified in the Borrowing Notices with
respect thereto) from time to time prior to the Maturity Date in an aggregate principal
amount that will not result in such Lender’s Global Revolving Exposure exceeding such
Lender’s Global Revolving Commitment. The Borrowings may be ratable Adjusted Prime Rate



24









 







Borrowings (but only Loans in Dollars can be Adjusted Prime Rate Borrowings), ratable
Eurocurrency Borrowings, non-pro rata Swingline Loans or non-pro rata Competitive Bid Loans.
This Facility is a revolving credit facility and, subject to the provisions of this
Agreement, Borrower may request Borrowings hereunder, repay such Borrowings and reborrow
Borrowings at any time prior to the Maturity Date.




     (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.




     (c) In no event shall the Aggregate Commitment exceed Seven Hundred Million Dollars
($700,000,000).



     2.2. Principal Payments.




     (a) Any outstanding Borrowings (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 2.17 below.




     (b) If on any Exchange Rate Date relating to the Global Revolving Facility, the Total
Global Exposure exceeds 105% of the total Global Revolving Commitments, the Borrower shall,
without notice or demand, within three (3) Business Days after such Exchange Rate Date,
prepay (or cause the Borrower to prepay) Global Revolving Loans in an aggregate amount such
that, after giving effect thereto, the Total Global Exposure does not exceed the total
Global Revolving Commitments. If on any Exchange Rate Date relating to the Domestic
Revolving Facility, the Total Domestic Exposure plus the amount of all outstanding
Competitive Bid Loans exceeds 105% of the aggregate Domestic Revolving Commitments, the
Borrower shall, without notice or demand, within three (3) Business Days after such Exchange
Rate Date, prepay Borrowings or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to Section 3.9 in an
aggregate amount such that, after giving effect thereto, the Total Domestic Exposure plus
the amount of all outstanding Competitive Bid Loans does not exceed the aggregate Domestic
Revolving Commitments.



     2.3. Requests for Borrowings; Responsibility for Borrowings. Ratable Borrowings shall be
made available to Borrower by Administrative Agent in accordance with Section 2.1(a) and
Section 2.6 hereof. The obligation of each Lender to fund its Domestic Percentage of each
ratable Borrowing shall be several and not joint.



     2.4. Evidence of Credit Extensions. The Borrowings 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, with respect to each Lender, its
applicable percentage of the then current Aggregate Commitment. Each Lender shall record
Borrowings 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



25









 







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 Borrowing 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. Loans and Borrowings.




     (a) Each Loan (other than a Swingline Loan or Competitive Bid Loan) shall be made as
part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their respective Commitments of the applicable Class. The
failure of any Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder.




     (b) Subject to Section 4.3, (i) each Borrowing denominated in Dollars shall be
comprised entirely of Adjusted Prime Rate Loans or Eurocurrency Loans as the Borrower
may request in accordance herewith and (ii) each Borrowing denominated in a Qualified
Foreign Global Currency shall be comprised entirely of Eurocurrency Loans. Each Swingline
Loan shall be a Adjusted Prime Rate Loan under the Domestic Revolving Facility. Each
Competitive Bid Loan shall be deemed outstanding under the Domestic Revolving Facility.
Each Lender at its option may make any Eurocurrency Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.




     (c) No more than ten (10) Eurocurrency Borrowings may be outstanding at any one time
under the Facilities.




     (d) Notwithstanding any other provision of this Agreement, a Borrower shall not be
entitled to request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity Date.



     2.6. Requests for Borrowings.




     (a) To request a Revolving Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (a “Borrowing Notice”) (A) in the case of a
Eurocurrency Borrowing, not later than 11:00 a.m., New York City time (or if the request is
delivered in London, 11:00 a.m., London time), three Business Days before the date of the
proposed Borrowing (or if the request is delivered in London, four Business Days before the
date of the proposed Borrowing) or (B) in the case of a Adjusted Prime Rate Borrowing, not
later than 11:00 a.m., New York City time, one (1) Business Day before the date of the
proposed Borrowing; provided that any such notice of a Adjusted Prime Rate Borrowing to
finance the reimbursement of an LC Disbursement as contemplated by Section 3.5 may
be given not later than 9:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Notice shall be irrevocable and shall be
confirmed promptly by delivery to the



26









 







Administrative Agent of a written Borrowing Notice in
a form reasonably approved by the Administrative Agent. Each such telephonic and written
Borrowing Notice shall specify the following information in compliance with Section
2.6; (i) the Borrower requesting such Borrowing; (ii) the Class and Type of the
requested Borrowing; (iii) the aggregate amount of such Borrowing; (iv) the date of such
Borrowing, which shall be a Business Day; (v) in the case of a Eurocurrency Borrowing, the
initial Interest Period to be applicable thereto; (vi) the location and number of the
Borrower’s account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.6; and (vii) the currency of such Borrowing (which shall
be in Dollars in the case of Domestic Revolving Loans and Swingline Loans, and Competitive
Bid Loans, and otherwise shall be in a Qualified Global Currency). If no election as to the
currency of a Global Revolving Borrowing is specified in any such notice, then the requested
Borrowing shall be denominated in Dollars. If no election as to the Type of Borrowing is
specified, then the requested Borrowing shall be a Adjusted Prime Rate Borrowing if
denominated in Dollars or a Eurocurrency Borrowing if denominated in a Qualified Foreign
Global Currency. If no Interest Period is specified with respect to any requested
Eurocurrency Borrowing, then the Borrower shall be deemed to have selected an Interest
Period of one month’s duration. Promptly following receipt of a Borrowing Notice in
accordance with
this Section, the Administrative Agent shall advise each relevant Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the requested
Borrowing.




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 Borrowings.




Not later than 1:00 p.m. (New York City time) on each Borrowing Date, each Lender shall make
available its Loan or Loans, in funds immediately available in New York City to the
Administrative Agent. Administrative Agent will promptly make the funds so received from
the Lenders available to the Borrower.




Not later than 1:00 p.m. (London time) on each Borrowing Date for Loans in Qualified Foreign
Global Currency, each Lender shall make available its Loan or Loans, in funds immediately
available 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 Eurocurrency
Borrowing 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 Eurocurrency Borrowing 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 Eurocurrency Borrowings.



27









 






     (d) As of the end of each LIBOR Interest Period selected for a ratable Eurocurrency
Borrowing (other than Borrowings in a Qualified Foreign Global Currency), the interest rate
on the Eurocurrency Borrowing 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 2.7.




     (e) The right of Borrower to select the Adjusted LIBOR Rate for a Borrowing pursuant to
this Agreement is subject to the availability to Lenders of a similar option. If
Administrative Agent determines that (i) deposits of Dollars in an amount approximately
equal to the Eurocurrency Borrowing 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 a Borrowing 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 Borrowing shall bear interest at the Adjusted Prime Rate.



     2.7. Interest Elections.




     (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurocurrency Borrowing, shall have an initial Interest Period
as specified in such Borrowing Request (or as set forth in Section 2.6 if no
Interest Period is specified). Thereafter, a Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a Eurocurrency
Borrowing, may elect Interest Periods therefor, all as provided in this Section. A Borrower
may elect different options with respect to different portions of the affected Borrowing, in
which case each such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. Notwithstanding the foregoing, a Borrower may not (i) elect to convert
the currency in which any Loans are denominated, (ii) elect to convert Qualified Foreign
Global Currency Loans from Eurocurrency Loans to Adjusted Prime Rate Loans, (iii) elect an
Interest Period for Eurocurrency Loans that does not comply with Section 2.5(d),
(iv) elect to convert any Adjusted Prime Rate Loans to Eurocurrency Loans that would result
in the number of Eurocurrency Borrowings exceeding the maximum number of Eurocurrency
Borrowings permitted under Section 2.5, (v) elect an Interest Period for
Eurocurrency Loans unless the aggregate outstanding principal amount of Eurocurrency Loans
(including any Eurocurrency Loans made to such Borrower in the same currency on the date
that such Interest Period is to begin) to which such Interest Period will apply complies
with the requirements as to minimum principal amount set forth in Section 2.10 or
(vi) elect to convert or continue any Swingline Loans.



28









 






     (b) To make an election pursuant to this Section (an “Interest Election Request”), a
Borrower shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.6 if such Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be made on the
effective date of such election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by delivery to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent
(hereinafter referred to as a “Conversion/Continuation Notice”).




     (c) Each telephonic and written Conversion/Continuation Notice shall specify the
following information in compliance with Section 2.5 and paragraph (a) of this
Section: (i) the Borrowing to which such Conversion/Continuation Notice applies; (ii) the
effective date of the election made pursuant to such Conversion/Continuation Notice, which
shall be a Business Day; (iii) whether the resulting Borrowing is to be a Adjusted Prime
Rate Borrowing or a Eurocurrency Borrowing; and (iv) if the resulting Borrowing is a
Eurocurrency Borrowing, the Interest Period to be applicable thereto after giving effect to
such election. If any such Conversion/Continuation Notice requests a Eurocurrency Borrowing
but does not specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration.




     (d) Promptly following receipt of a Conversion/Continuation Notice, the Administrative
Agent shall advise each relevant Lender of the details thereof and of such Lender’s portion
of each resulting Borrowing.




     (e) If the Borrower fails to deliver a timely Conversion/Continuation Notice with
respect to a Eurocurrency Borrowing denominated in Dollars prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the
end of such Interest Period such Borrowing shall be converted to a Adjusted Prime Rate
Borrowing. If the Borrower fails to deliver a timely Conversion/Continuation Notice with
respect to a Eurocurrency Borrowing denominated in a Qualified Foreign Global Currency prior
to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Borrowing shall automatically
continue as a Eurocurrency Loan having an Interest Period of one month.




     (f) Notwithstanding anything to the contrary contained in Sections 2.7, no
Borrowing may be converted into a Eurocurrency Borrowing or continued as a Eurocurrency
Borrowing (except with the consent of the Required Lenders) when any Monetary Default or
Event of Default has occurred and is continuing.



     2.8. Applicable Margins. The Prime Applicable Margin and the LIBOR Applicable Margin to be
used in calculating the interest rate applicable to different types of Borrowings 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:



29









 





     Rating Period:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Rating Level of Lower	 	 	 	 	 	 	 	 	 	Prime
	of Two Highest	 	LIBOR	 	 	 	 	 	Applicable
	Ratings*	 	Applicable Margin	 	Facility Fee	 	Margin
	A-/A3
	 	 	0.325	%	 	 	0.10	%	 	 	0	%
	BBB+/Baa1
	 	 	0.375	%	 	 	0.125	%	 	 	0	%
	BBB/Baa2
	 	 	0.475	%	 	 	0.15	%	 	 	0	%
	BBB-/Baa3
	 	 	0.75	%	 	 	0.175	%	 	 	0	%
	Below BBB- or Baa3
	 	 	1.00	%	 	 	0.20	%	 	 	0.15	%






 





	 	*	 	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.



     2.9. Other Fees.




     (a) The Borrower shall pay the fee due to the Administrative Agent in connection with
Competitive Bid Loans as described in Section 2.17. The Borrower agrees to pay all
other fees payable to the Administrative Agent and J.P. Morgan Securities Inc. pursuant to
the Borrower’s prior letter agreements with them.




     (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 2.8 hereof, times the then aggregate amount of the
Domestic Revolving Commitments and the Global Revolving Commitments, to be shared among the
Lenders based on each Lender’s applicable percentage of the Aggregate Commitment. The
Facility Fee shall be paid quarterly in arrears on the Payment Date.



     2.10. Minimum Amount of Each Borrowing. Each Eurocurrency Borrowing 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 Borrowing 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 Borrowing may be in the amount
of the unused Aggregate Commitment.



     2.11. Interest.




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



30









 






     (i) the Adjusted Prime Rate; or




     (ii) at the election of Borrower in accordance with Section 2.7 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 except that interest on loans denominated in Sterling shall be calculated on the basis
of a 365-day year. Interest accrued on each Borrowing (other than Competitive Bid Loans)
shall be payable on the first day of each calendar month in arrears from time to time while
such Borrowing is outstanding. Interest shall not be payable for the day of any payment on
the amount paid if payment is received by Administrative Agent prior to 1:00 p.m. (New York
City 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.



     2.12. 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 the
New York Administrative office for payments in Dollars, and at the London Administrative Office for
payments in currencies other than Dollars, or at any other Lending Installation of Administrative
Agent specified in writing by Administrative Agent to Borrower, by 1:00 p.m. New York time (or if
the payment is made to the London Administrative Office,
2:00 p.m. London time) on the date when due and shall be applied ratably by Administrative Agent
among Lenders in the Domestic Revolving Facility or Global Revolving Facility, as the case may be.
Except as otherwise specified in this Agreement, each such payment shall be made in Dollars. 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. Payments not made by Administrative Agent within one
Business Day after receipt shall accrue interest at Federal Funds Effective Rate. 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.



     2.13. 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 Eurocurrency Borrowing,
request a Competitive Bid Loan, select a new LIBOR Interest Period for an existing ratable
Eurocurrency Borrowing or convert any Adjusted Prime Rate Borrowing to a ratable Eurocurrency
Borrowing. During the continuance of a Monetary Default or an Event of Default, at the election of
the Required Lenders, by notice to Borrower, outstanding Borrowings 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.



31









 





     2.14. Lending Installations. Each Lender may book its Borrowings 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 Borrowings will be made by it and for whose account payments are to be made.



     2.15. 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, a Borrowing, 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 in the applicable currency,
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, promptly after
demand by Administrative Agent, repay to Administrative Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on the date such amount
was so made available by 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) or the Administrative Agent’s overdraft for
Qualified Foreign Global Currencies for such day or (ii) in the case of payment by Borrower, the
interest rate applicable to the relevant Borrowing.



     2.16. Swingline Loans. In addition to the other options available to Borrower hereunder,
the Swingline Lenders’ Domestic Revolving 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
2.6 hereof. All Swingline Loans shall bear interest at the Adjusted Prime Rate and shall be
deemed to be Adjusted Prime Rate Borrowings. Swingline Loans shall be funded, first, by JPMCB in
an amount not to exceed the maximum amount it is required to disburse pursuant to the next
sentence, and second, by Wachovia Bank, National Association, in an amount not to exceed the
maximum amount it is required to disburse pursuant to the next sentence. In no event shall a
Swingline Lender be required to fund a Swingline Loan if it would increase the total aggregate
outstanding Loans by such Swingline Lender hereunder plus its LC Exposure to an amount in excess of
its aggregate Domestic Revolving Commitment. Upon request of the Swingline Lenders made to all the
Domestic Revolving Lenders, each Domestic Revolving Lender irrevocably agrees to purchase its
Domestic Percentage of any Swingline Loan made by the Swingline Lenders 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 its Domestic
Revolving Exposure to be greater than its Domestic Revolving Commitment. Such purchase shall take
place on the date of the request by Swingline Lenders so long as such request is made by 1:00 p.m.
(New York time), otherwise on



32









 







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 Lenders 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
Domestic 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 Domestic Revolving Lender will purchase an undivided participating interest in the
outstanding Swingline Loan in an amount equal to its Domestic 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 Lenders receive any payment on account thereof, the Swingline Lenders 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 Lenders and is required to be returned to the Borrower, each Lender will
return to the Swingline Lenders any portion thereof previously distributed by the Swingline Lender
to it. If any Domestic Revolving Lender fails to so purchase its Domestic Percentage of any
Swingline Loan, such Lender shall be deemed to be a Defaulting Lender hereunder. No Swingline Loan
shall be 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.



     2.17. Competitive Bid Loans.




     (a) Competitive Bid Option. In addition to ratable Borrowings pursuant to
Section 2.6, 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
Total Domestic Exposure), the Borrower may, as set forth in this Section 2.17, 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 2.17. 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 2.17, 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) 11:00 a.m. (New York
time) at least five Business Days prior to the Borrowing Date proposed therein, in the



33









 







case of a request for a Competitive LIBOR Margin or (ii) 10:00 a.m. (New York 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 2.17(b), the Administrative Agent shall
send to each of the Lenders by telecopy an Invitation for Competitive Bid Quotes
substantially in the form of Exhibit C-2 hereto, which shall constitute an
invitation by the Borrower to each Lender to submit Competitive Bid Quotes offering to make
the Competitive Bid Loans to which such Competitive Bid Quote Request relates in accordance
with this Section 2.17.




     (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 2.17(d) and must be submitted to the
Administrative Agent by telex or telecopy at its offices not later than (a) 3:00
p.m. (New York 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) 10:00 a.m. (New
York 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



34









 







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 Lender as provided in
Section 2.17(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
2.17(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 2.17(d)(i).



35









 






If any Competitive Bid Quote shall be rejected pursuant to this Section
2.17(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 2.17(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) 7:00 p.m. (New York
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) 11:00 a.m. (New York 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 2.17(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
2.17(d)(iii)); provided that:




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




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




     (iii) the Borrower may not accept any offer that is described in Section
2.17(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



36









 







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 2.17(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
Borrowings is reduced by the increase in the Total Domestic Exposure 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 Borrowings under the Domestic Revolving Facility or Global
Revolving Facility as the case may be. In no event can the aggregate amount of all
Competitive Bid Loans at any time exceed 50% of the then 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 2.17 or
by ratable Borrowings in accordance with Section 2.6.




     (j) Designated Lenders. A Lender may designate its Designated Lender to fund a
Competitive Bid Loan on its behalf as described in Section 2.17(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.



     2.18. Voluntary Reduction of Aggregate Commitment Amount. Upon at least five (5) days
prior irrevocable written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent, Borrower shall have the right to terminate the Commitments of any Class in
their entirety or, from time to time, to reduce the amount of the Commitments of any Class
provided that no such termination or reduction shall be permitted if, after giving effect
thereto



37









 







and to any payments of Borrowings made on the effective date thereof, the Total Domestic
Exposure plus Competitive Bid Loans then outstanding would exceed the remaining aggregate Domestic
Revolving Commitments or the Total Global Exposure to exceed the remaining aggregate Global
Revolving Commitments, subject to the provisions of the following grammatical paragraph. Any such
reduction shall be in an amount equal to $5,000,000 or a whole multiple thereof and shall reduce
permanently the Domestic Revolving Commitments or Global Revolving Commitments. Any such reduction
shall reduce the Commitments of all of the Lenders ratably in proportion to their respective
Commitments for that Class. Unless otherwise agreed by the Swingline Lender, any reduction in the
Domestic Revolving Commitments shall reduce the maximum amount of Swingline Borrowings permitted
hereunder by the same proportion. The Administrative Agent shall promptly forward to the Lenders
any notice of termination or reduction of the Commitments for any Class.



     2.19. Increase in Aggregate Commitment. The Borrower shall also have the right from time
to time to increase the Aggregate Commitments up to a maximum of $700,000,000 (comprised of
Domestic Revolving Commitments of up to $600,000,000 and Global Revolving Commitments of up to
$300,000,000, provided that the Aggregate Commitment cannot exceed $700,000,000) by either adding
new banks as Lenders (subject to the Administrative Agent’s prior written approval of the identity
of such new banks) or obtaining the agreement, which shall be at such Lender’s or Lenders’ sole
discretion, of one or more of the then current Lenders to increase its or their Commitments. Such
increases shall be evidenced by the execution and delivery of an Amendment Regarding Increase in
the form of Exhibit K attached hereto by the Borrower, the Administrative Agent and the new
bank or existing Lender providing such additional Commitment, a copy of which shall be forwarded to
each Lender by the Administrative Agent promptly after execution thereof. Each new Lender shall be
entitled to require Borrower to deliver a Note to such Lender. On the effective date of each such
increase in the Domestic Revolving Commitments and/or the Global Revolving Commitments as
applicable, the Borrower and the Administrative Agent shall cause the new or existing Lenders
providing such increase, by either funding more than its or their Domestic Percentage of new
ratable Borrowings made on such date or purchasing shares of outstanding ratable Loans held by the
other Lenders or a combination thereof, to hold its or their Domestic Percentage of all ratable
Borrowings outstanding at the close of business on such day for such Class. The Lenders agree to
cooperate in any required sale and purchase of outstanding ratable Borrowings to achieve such
result. If such new or existing Lenders providing the increase purchase shares of outstanding
ratable Domestic Revolving Loans held by the other Lenders on a date which is not the last day of
the applicable Interest Period, Borrower will indemnify each Lender for any loss or cost incurred
by such Lender resulting from the payment of any breakage fees relating to a ratable Eurocurrency
Borrowing funded or maintained in connection with such a purchase. In no event will such new or
existing Lenders providing the increase be required to fund or purchase a portion of any
Competitive Bid Loan or Swingline Loan to comply with this Section on such date. In no event shall
the Aggregate Commitment exceed $700,000,000 without the approval of all of the Lenders.



38









 





     2.20. 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) among the Facilities and between Competitive Bid Loans and ratable
Borrowings (the amount allocated to ratable Borrowings under either of the
Facilities to be distributed in accordance with the applicable pro rata shares of
the outstanding amounts of the Lenders for the applicable Facility) or (ii) if an
Event of Default exists, in accordance with the respective Funded Percentages of the
Lenders until principal is paid in full, each Lender’s share of such payment to be
allocated pro rata among the outstanding Classes and Types of Loans owed to such
Lender and then to the Letter of Credit Collateral Account until the full amount of
LC Exposures is on deposit therein;




     (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 Domestic Percentages appear (provided that Administrative Agent shall
have the right to set-off against such sums any amounts due from such Defaulting
Lender).



     2.21. Special Provisions Regarding Foreign Currency Loans.




     (a) Upon the occurrence of a Sharing Event, automatically (and without the
taking of any action) (i) all then outstanding Eurocurrency Borrowings denominated
in a currency other than Dollars shall be automatically



39









 







converted into Adjusted
Prime Rate Borrowings denominated in Dollars (in an amount equal to the Dollar
Equivalent of the aggregate principal amount of the applicable Eurocurrency
Borrowings on the date such Sharing Event first
occurred, which Loans denominated in Dollars (1) shall thereafter continue to
be deemed to be Adjusted Prime Rate Borrowings and (2) unless the Sharing Event
resulted solely from a termination of the Commitments, shall be immediately due and
payable on the date such Sharing Event has occurred) and (ii) unless the Sharing
Event resulted solely from a termination of the Commitments, all accrued and unpaid
interest and other amounts owing with respect to such Loans shall be immediately due
and payable in Dollars, using the Dollar Equivalent of such accrued and unpaid
interest and other amounts.




     (b) Upon the occurrence of a Sharing Event, and after giving effect to any
automatic conversion pursuant to Section 2.21(a), each Lender shall (and
hereby unconditionally and irrevocably agrees to) purchase and sell (in each case in
Dollars) undivided participating interests in all such Loans outstanding so that
each Lender shall have a share of such outstanding Loans equal to its pro rata share
of the aggregate Domestic Revolving Commitments, and aggregate Global Revolving
Commitments (provided that if such purchase of a participating interest would
increase the Lender’s Revolving Exposure to an amount greater than its Revolving
Commitment then the amount of the participation it would be required to purchase
would be reduced by such excess amount). Upon any such occurrence, the
Administrative Agent shall notify each Lender and shall specify the amount of
Dollars required from such Lender in order to effect the purchases and sales by the
various Lenders of participating interests in the amounts required above (together
with accrued interest with respect to the period for the last interest payment date
through the date of the Sharing Event plus any additional amounts payable by the
Borrower pursuant to this Section in respect of such accrued but unpaid interest);
provided, in the event that a Sharing Event shall have occurred, each Lender shall
be deemed to have purchased, automatically and without request, such participating
interests. Promptly upon receipt of such request, each Lender shall deliver to the
Administrative Agent (in immediately available funds in Dollars) the net amounts as
specified by the Administrative Agent. The Administrative Agent shall promptly
deliver the amounts so received to the various Lenders in such amounts as are needed
to effect the purchases and sales of participations as provided above. Promptly
following receipt thereof, each Lender which has sold participations in any of its
Loans (through the Administrative Agent) will deliver to each Lender (through the
Administrative Agent) which has so purchased a participating interest a
participation certificate dated the date of receipt of such funds and in such
amount. It is understood that the amount of funds delivered by each Lender shall be
calculated on a net basis, giving effect to both the sales and purchases of
participations by the various Lenders as required above.




40












 






     (c) Upon the occurrence of a Sharing Event all amounts from time to time
accruing with respect to, and all amounts from time to time payable on account of,
any outstanding Eurocurrency Borrowings initially denominated in a Qualified Foreign
Global Currency (including, without limitation, any interest and other amounts which
were accrued but unpaid on the date of such purchase) shall be payable in Dollars as
if such Eurocurrency Borrowing had originally been made in Dollars.




     (d) If any amount required to be paid by any Lender pursuant to Section
2.21(b) is not paid to the Administrative Agent within one (1) Business Day
following the date upon which such Lender receives notice from the Administrative
Agent of the amount of its participations required to be purchased pursuant to
Section 2.21(b), such Lender shall also pay to the Administrative Agent on
demand an amount equal to the product of (i) the amount so required to be paid by
such Lender for the purchase of its participations multiplied by (ii) the daily
average Federal Funds Effective Rate during the period from and including the date
of request for payment to the date on which such payment is immediately available to
the Administrative Agent multiplied by (iii) a fraction the numerator of which is
the number of days that elapsed during such period and the denominator of which is
360. If any such amount required to be paid by any Lender pursuant to Section
2.21(b) is not in fact made available to the Administrative Agent within three
(3) Business Days following the date upon which such Lender receives notice from the
Administrative Agent as to the amount of participations required to be purchased by
it, the Administrative Agent shall be entitled to recover from such Lender on
demand, such amount with interest thereon calculated from such request date at the
rate per annum applicable to Adjusted Prime Rate Borrowings. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts payable by
any Lender pursuant to this Section shall be conclusive and binding.




     (e) Each Lender’s obligation to purchase participating interests pursuant to
this Section shall be absolute and unconditional and shall not be affected by any
circumstance including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against any other
Lender, the Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Default, (iii) any adverse change in the condition
(financial or otherwise) of any Party or any other Person, (iv) any breach of this
Agreement by any Party, any Lender or any other Person, or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing.




     (f) Notwithstanding anything to the contrary contained elsewhere in this
Agreement, upon any purchase of participations as required above, each Lender which
has purchased such participations shall be entitled to receive from the Borrower any
increased costs and indemnities directly from the Borrower to



41









 







the same extent as if
it were the direct Lender as opposed to a participant therein. The Borrower
acknowledges and agrees that, upon the occurrence of a Sharing
Event and after giving effect to the requirements of this Section, increased
Taxes may be owing by the Borrower pursuant to Section 4.5, which Taxes
shall be paid (to the extent provided in Section 4.5) by the Borrower,
without any claim that the increased Taxes are not payable because same resulted
from the participations effected as otherwise required by this Section.



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. The parties
acknowledge that there are certain Facility Letters of Credit that were issued under the Existing
Credit Agreement which Borrower has requested remain outstanding under this Agreement.
Accordingly, from and after the date of the first Borrowing hereunder, the Facility Letters of
Credit identified in Schedule 3.1 shall be deemed issued pursuant to the terms of this
Agreement and shall be subject to all of the terms and conditions contained herein as if such
Facility Letters of Credit were issued hereunder.



     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 Total Domestic Exposure plus the amount of all outstanding
Competitive Bid Loans would exceed the aggregate Domestic Revolving Commitments, or
(2) the LC Exposure would exceed $50,000,000;




     (iii) issue any Alternative Currency Letter of Credit if it has determined that
it is unlawful to fund obligations in the Alternative Currency in which it is
denominated;




     (iv) 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; or



42









 






     (v) issue any Facility Letter of Credit having an expiration date, or
containing automatic extension provisions to extend such date, to a date which is
more than twelve (12) months after the date of its issuance.



     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




     (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, the substance of which notice shall be promptly forwarded to all
Lenders); 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;



43









 






     (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;




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




     (8) whether an Alternative Currency Letter of Credit is being requested
and, if so, in which Alternative Currency, provided that if no Alternative
Currency is requested, the Facility Letter of Credit shall be issued in
Dollars.


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 3:00 p.m. (New York time) on the
last Business Day on which notice can be given under this Section 3.4(a). Following
receipt of such notice and prior to the issuance of the requested Facility Letter of Credit,
the Administrative Agent shall notify the Borrower, and the applicable Issuing Bank of the
amount of the Total Domestic Exposure after giving effect to (i) the issuance of such
Facility Letter of Credit, (ii) the issuance or expiration of any other Facility Letter of
Credit that is to be issued or will expire prior to the requested date of issuance of such
Facility Letter of Credit and (iii) the borrowing or repayment of any Domestic Revolving
Loans or Swingline Loans that (based upon notices delivered to the Administrative Agent by
the Borrower) are to be borrowed or repaid prior to the requested date of issuance of such
Facility Letter of Credit. A Facility Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each Facility Letter
of Credit the Borrower shall be deemed to represent and warrant that), after giving effect
to such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed
$50,000,000, and (ii) the Total Domestic Exposure plus the amount of all outstanding
Competitive Bid Loans shall not exceed the aggregate Domestic Revolving Commitments. A
Facility Letter of Credit shall not be issued, extended or renewed if the Issuing Bank has
received written notice from the Administrative Agent at least one (1) Business Day prior to
the date of such requested issuance, extension or renewal, that one or more applicable
conditions contained in


44









 






Section 5.2 shall not be satisfied. Administrative Agent
shall promptly give a copy of the Letter of Credit Request to the other Lenders.




     (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 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) If the applicable Issuing Bank shall make any LC Disbursement in respect of
a Facility Letter of Credit, the Borrower shall reimburse such LC Disbursement by
paying to the Administrative Agent an amount equal to such LC Disbursement in
Dollars, or (subject to the two immediately succeeding sentences) the applicable
Alternative Currency, not later than 12:00 noon, New York City time, as applicable,
on the date that such LC Disbursement is made, if such Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, as
applicable, on such date, or, if such notice has not been received by such Borrower
prior to such time on such date, then not later than 12:00 noon, New York time, as
applicable, on the Business Day immediately following the day that such Borrower
receives such notice; provided that, in the case of any LC Disbursement made in
Dollars, the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.3 or 2.6 that such payment be
financed in Dollars with a Adjusted Prime Rate Borrowing under the Domestic
Revolving Facility or Swingline Loan in an equivalent amount and, to the extent so
financed, such Borrower’s obligation to make such payment shall be discharged and
replaced by the resulting Adjusted Prime Rate Borrowing or Swingline Loan. If the
Borrower’s reimbursement of, or obligation to reimburse, any amounts in any
Alternative Currency would subject the Administrative Agent, the applicable Issuing
Bank or any Lender to



45









 







any stamp duty, ad valorem charge or similar tax that would
not be payable if such reimbursement were made or required to be made in Dollars,
such Borrower shall, at its option, either (x) pay the amount of any such tax
requested by the Administrative Agent, the relevant Issuing Bank or Lender or (y)
reimburse each LC Disbursement made in such Alternative Currency in Dollars, in an
amount equal to the Dollar Equivalent, calculated using the applicable Exchange Rate
on the date such LC Disbursement is made, of such LC Disbursement. If the Borrower
fails to make such payment when due, then (i) if such payment relates to an
Alternative Currency Letter of Credit, automatically and with no further action
required, such Borrower’s obligation to reimburse the applicable LC Disbursement
shall be permanently converted into an obligation to reimburse the Dollar
Equivalent, calculated using the Exchange Rates on the date when such
payment was due, of such LC Disbursement and (ii) the Administrative Agent
shall promptly notify the applicable Issuing Bank and each other Domestic Revolving
Lender of the applicable LC Disbursement, the Dollar Equivalent thereof (if such LC
Disbursement relates to an Alternative Currency Letter of Credit), the payment then
due from such Borrower in respect thereof and such Lender’s Domestic Percentage
thereof. Promptly following receipt of such notice, each Domestic Revolving Lender
shall pay to the Administrative Agent in Dollars its Domestic Percentage of the
payment then due from the Borrower (determined as provided in clause (i) above, if
such payment relates to an Alternative Currency Letter of Credit), in the same
manner as provided in Section 2.7 with respect to Loans made by such Lender
(and Section 2.10 shall apply, mutatis mutandis, to the payment obligations
of the Domestic Revolving Lenders), and the Administrative Agent shall promptly pay
to the applicable Issuing Bank in Dollars the amounts so received by it from the
Domestic Revolving Lenders. Promptly following receipt by the Administrative Agent
of any payment from any Borrower pursuant to this paragraph, the Administrative
Agent shall distribute such payment to the applicable Issuing Bank or, to the extent
that Domestic Revolving Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their
interests may appear. Any payment made by a Domestic Revolving Lender pursuant to
this paragraph to reimburse any Issuing Bank for any LC Disbursement (other than the
funding of Adjusted Prime Rate Domestic Revolving Loans or a Swingline Loan as
contemplated above) shall not constitute a Loan and shall not relieve any Borrower
of its obligation to reimburse such LC Disbursement.




     (b) If an Issuing Bank shall make any LC Disbursement, then, unless the
Borrower shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made (in the local time where the LC Disbursement is made regardless
of when such reimbursement is due under Section 3.5(a)), the unpaid amount
thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to, but excluding, the date that such Borrower reimburses such
LC Disbursement, at the rate per annum then applicable to



46









 







Adjusted Prime Rate Borrowings; provided that, if such Borrower fails to reimburse such LC Disbursement
when due pursuant to paragraph (a) of this Section, then Section 2.6 shall
apply; provided further that, in the case of an LC Disbursement made under an
Alternative Currency Letter of Credit, the amount of interest due with respect
thereto shall (i) in the case of any LC Disbursement that is reimbursed on or before
the Business Day immediately succeeding such LC Disbursement, (A) be payable in the
applicable Alternative Currency and (B) if not reimbursed on the date of such LC
Disbursement, bear interest at a rate equal to the rate reasonably determined by the
applicable Issuing Bank to be the cost to such Issuing Bank of funding such LC
Disbursement plus the Applicable Margin applicable to Eurocurrency Revolving Loans
at such time and (ii) in the case of any LC Disbursement that is reimbursed after
the Business Day immediately succeeding such LC Disbursement (A) be payable in
Dollars, (B) accrue on the Dollar Equivalent, calculated using the Exchange Rates on
the date such LC Disbursement was made, of such LC Disbursement and (C) bear
interest at the rate per annum then applicable to Adjusted Prime Rate Revolving Loans, subject
to Section 2.6. Interest accrued pursuant to this paragraph shall be for
the account of the applicable Issuing Bank, except that interest accrued on and
after the date of payment by any Domestic Revolving Lender pursuant to Section
3.5 to reimburse such Issuing Bank shall be for the account of such Lender to
the extent of such payment



     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 Domestic Revolving
Lender shall be deemed to have irrevocably and unconditionally purchased and received from
the Issuing Bank, without recourse, representation or warranty, an undivided interest and
participation equal to such Lender’s Domestic 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 (using the
Dollar Equivalent thereof in the case of any Alternative Currency Letters of Credit);
provided that a Facility 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 Facility 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 Domestic Revolving
Lender’s obligation to make further Domestic Revolving 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



47









 







the Issuing
Bank on behalf of Borrower shall be reduced by such Lender’s Domestic 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 Domestic Revolving Lender of such failure, and each
Domestic Revolving Lender shall promptly and unconditionally pay to the Administrative Agent
for the account of the Issuing Bank the amount of such Lender’s Domestic Percentage of (i)
each LC Disbursement made by such Issuing Bank in Dollars and (ii) the Dollar Equivalent,
using the Exchange Rates on the date such payment is required, of each LC Disbursement made
by such Issuing Bank in an Alternative Currency and, in each case, not reimbursed by the
Borrower on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to such Borrower for any reason (or, if such
reimbursement payment was refunded in an Alternative Currency, the Dollar Equivalent thereof
using the Exchange Rates on the date of such refund). The failure of any Domestic Revolving
Lender to make available to the Administrative Agent for the account of the Issuing Bank its
Domestic 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 Domestic 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 Domestic 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 Domestic 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 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.



48









 





     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 Borrowings 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 Domestic Percentage of the amount set aside, avoided or recovered together with
interest at the rate required to be paid by the Issuing Bank or the Administrative Agent
upon the amount required to be repaid by the Issuing Bank or the Administrative Agent.



     3.8. Compensation for Facility Letters of Credit.




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



49









 







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 Domestic Revolving Lenders in accordance with their Domestic
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 2.12 hereof. The Facility Letter of Credit Fee due in
connection with a Facility Letter of Credit issued in an Alternative Currency shall be at
the same per annum rate as specified above for Facility Letters of Credit issued in Dollars
but shall be based on a Facility Letter of Credit amount calculated by multiplying (x) the
average daily balance of each Alternative Currency Letter of Credit (expressed in the
currency in which such Alternative Currency Letter of Credit is denominated) by (y) the
Exchange Rate for each such Alternative Currency in effect on the last Business Day of such
period or by such other reasonable method that the Administrative Agent deems appropriate.




     (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
Domestic Revolving 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 or Section 2.2
(b) hereof.



     3.10. Conversion. In the event that the Loans become immediately due and payable on any date pursuant to Article
XI, all amounts (i) that a Borrower is at the time or thereafter becomes required to reimburse or
otherwise pay to the Administrative Agent in respect of LC Disbursements made under any Alternative
Currency Letter of Credit (other than amounts in



50









 







respect of which such Borrower has deposited cash
collateral pursuant to this Agreement, if such cash collateral was deposited in the applicable
Alternative Currency to the extent so deposited or applied), (ii) that the Domestic Revolving
Lenders are at the time or thereafter become required to pay to the Administrative Agent and the
Administrative Agent is at the time or thereafter becomes required to distribute to the applicable
Issuing Bank pursuant to Section 3.5 in respect of unreimbursed LC Disbursements made under
any Alternative Currency Letter of Credit and (iii) of each Domestic Revolving Lender’s
participation in any Alternative Currency Letter of Credit under which an LC Disbursement has been
made shall, automatically and with no further action required, be converted into the Dollar
Equivalent, calculated using the Exchange Rates on such date (or in the case of any LC Disbursement
made after such date, on the date such LC Disbursement is made), of such amounts. On and after
such conversion, all amounts accruing and owed to the Administrative Agent, the applicable Issuing
Bank or any Lender in respect of the Obligations described in this paragraph shall accrue and be
payable in Dollars at the rates otherwise applicable hereunder.



ARTICLE IV.




CHANGE IN CIRCUMSTANCES




     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 (collectively, “Change in Law”):




     (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 Borrowings, 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 Eurocurrency Borrowings), 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,



51









 







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 Borrowings 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 Borrowings, its interest in the Facility Letters of Credit, or
its obligation to make Borrowings 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 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, and
further provided that such replacement is otherwise in accordance with Section 4.7. The
Lender being replaced shall assign its 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 Domestic 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 I 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. The Lender being replaced shall
continue to be entitled to the benefits of Sections 4.1, 4.2, 4.4,
4.5 and 14.6 for events recurring prior to assignment to the replacement Lender.



     4.3. Availability of Eurocurrency Borrowings. If any Lender determines that maintenance of any of its Eurocurrency Borrowings at a suitable
Lending Installation would



52









 







violate any applicable law, rule, regulation or directive of any
Governmental Authority having jurisdiction, the Administrative Agent shall suspend by written
notice to Borrower (with a copy thereof being delivered contemporaneously to Lenders) the
availability of Eurocurrency Borrowings and require any Eurocurrency Borrowings to be repaid; or if
the Required Lenders determine that (i) deposits of a type or maturity appropriate to match fund
Eurocurrency Borrowings are not available, the Administrative Agent shall suspend by written notice
to Borrower (with a copy thereof being delivered contemporaneously to Lenders) the availability of
Eurocurrency Borrowings with respect to any Eurocurrency Borrowings made after the date of any such
determination, or (ii) an interest rate applicable to a Eurocurrency Borrowing does not accurately
reflect the cost of making a Eurocurrency Borrowing, and, if for any reason whatsoever the
provisions of Section 4.1 are inapplicable, the Administrative Agent shall suspend by
written notice to Borrower (with a copy thereof being delivered contemporaneously to Lenders) the
availability of Eurocurrency Borrowings with respect to any Eurocurrency Borrowings made after the
date of any such determination.



     4.4. Funding Indemnification. If any payment of a ratable Eurocurrency Borrowing 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 Eurocurrency Borrowing 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 Eurocurrency Borrowing 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 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”).



53









 






     (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 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



54









 







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 Eurocurrency Borrowings to reduce any liability of Borrower to such Lender
under Sections 4.1, 4.2 and 4.5 or to avoid the unavailability of a
Eurocurrency Borrowing, 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 Eurocurrency Borrowing
shall be calculated as though each Lender funded its Eurocurrency Borrowing



55









 







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 Borrowing, 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 Eurocurrency Borrowings 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 Eurocurrency Borrowing 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.



     4.8. Change in Law. Notwithstanding any other provision of this Agreement, if, after the date hereof, (a) any Change
in Law shall make it unlawful for any Issuing Bank to issue Facility Letters of Credit denominated
in an Alternative Currency, or any Global Revolving Lender to make Global Revolving Loans
denominated in a Qualified Foreign Global Currency, or (b) there shall have occurred any change in
national or international financial, political or economic conditions (including the imposition of
or any change in exchange controls) or currency exchange rates that would cause material
restrictions on any Issuing Bank’s ability to issue Facility Letters of Credit denominated in such
Alternative Currency for the account of a Borrower, or any Global Revolving Lender to make Global
Revolving Loans denominated in a Qualified Foreign Global Currency, then by prompt written notice
thereof to the Borrower and to the Administrative Agent (which notice shall be withdrawn whenever
such circumstances no longer exist), (i) such Issuing Bank may declare that Facility Letters of
Credit will not thereafter be issued by it in the affected Alternative Currency or Alternative Currencies, whereupon the
affected Alternative Currency or Alternative Currencies shall be deemed (for the duration of such
declaration) not to constitute an Alternative Currency for purposes of the issuance of Facility
Letters of Credit by such Issuing Bank, (ii) such Global Revolving Lender may declare



56









 







that Global
Revolving Loans will not thereafter be made by it in the affected Qualified Foreign Global Currency
or Qualified Foreign Global Currencies, whereupon the affected Qualified Global Currency or
Qualified Foreign Global Currencies shall be deemed (for the duration of such declaration) not to
constitute a Qualified Foreign Global Currency for purposes of the making of Global Revolving Loans
by such Global Revolving Lender.



ARTICLE V.




CONDITIONS PRECEDENT




     5.1. Conditions Precedent to Closing. The Lenders shall not be required to make the initial Borrowing hereunder, nor shall the Issuing
Bank be required to issue the initial Facility Letter of Credit hereunder, unless (i) the Borrower
shall have paid all fees then due and payable to the Lenders, J.P. Morgan Securities, Inc.,
Wachovia Capital Markets, LLC and the Administrative Agent hereunder, (ii) all of the conditions
set forth in Section 5.2 are satisfied, and (iii) the Borrower shall have furnished to the
Administrative Agent, in form and substance satisfactory to the Lenders and their counsel and with
sufficient copies for the Lenders, the following:




     (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,



57









 







authorizing the Borrowings 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.




     (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) Prior Facility. The Lenders acknowledge that the Borrower has properly
terminated the Existing Credit Agreement effective as of the Agreement Execution Date and
shall immediately pay all outstanding obligations thereunder with the proceeds of the
initial Borrowing hereunder. The Borrower has received letters from those Lenders under the
Existing Credit Agreement that are not parties to this Agreement confirming their withdrawal
from the Facility.




     (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, provided that such certificate shall not need to contain the
detail required for the compliance certificate contemplated by Section 8.2
(iv) hereof so long as Borrower provides such a compliance certificate within
thirty days after the date hereof;




     (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 June 30, 2007;



58









 






     (iii) 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




     (iv) 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 August 20, 2007, there is an absence of any material adverse change or disruption in
primary or secondary loan syndication markets, financial markets or in capital markets
generally that would likely impair syndication of the Loans hereunder and (ii) the Borrower
has fully cooperated with the Administrative Agent’s syndication efforts including, without
limitation, by providing the Administrative Agent with information regarding the Borrower’s
operations and prospects and such other information as the Administrative 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 Borrowing is then
available to Borrower hereunder.



     5.2. Conditions Precedent to Subsequent Borrowings. Borrowings after the initial Borrowing shall be made from time to time as requested by Borrower,
and the obligation of each Lender to make any Borrowing (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 Borrowing 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.



59









 





     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.



ARTICLE VI.




REPRESENTATIONS AND WARRANTIES




     Borrower hereby represents and warrants to the Lenders 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




60












 







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 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



61









 




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.



     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 Borrowings 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



62









 




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 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



63









 







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, 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 maintains insurance on its properties consistent with the insurance maintained by other
institutional owners of similar properties.



     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 Borrowings.
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



64









 




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 June 30, 2007 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 6.20 hereof.




     (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



65









 







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 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.




     (j) The Unencumbered Asset satisfies each of the requirements for an Unencumbered Asset
as set forth in the definition thereof.



     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 a Borrowing, provided that
the Borrower shall only be obligated to update any Schedules referred to in this Article VI
and the financial statements required under Section 8.2(i) on a quarterly basis, 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.



66









 





ARTICLE VII.




ADDITIONAL REPRESENTATIONS AND WARRANTIES




     The General Partner hereby represents and warrants to the Lenders 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.



     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.



67









 





     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.



     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



68









 




(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
Borrowings. 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. No Subsidiary appears on
the list of Specially Designed Nationals and Blocked Persons promulgated by The Office of Foreign
Assets Control (“OFAC”) of the US Department of the Treasury.



     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.



     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 a Borrowing, provided that
the General Partner shall only be obligated to update any Schedules referred to in this Article
VII and the financial statements required under Section 8.2(i) on a quarterly basis,
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.



69









 





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;




     (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 forty-five (45) days after the end of each



70









 







of the first
three fiscal quarters, and not later than ninety (90) days after the end of each
fiscal year, annual audited financial statements, audited by an accounting firm as
reasonably approved by Administrative Agent, provided, however, Administrative Agent
shall only have the right to approve such accounting firm if the accounting firm is
not a big 4 accounting firm, all certified by Borrower’s chief financial officer or
chief accounting officer, 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
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 ten (10) Business Days after
the Borrower knows that any Reportable Event has occurred with respect to



71









 







any Plan,
a statement, signed by the chief financial officer of Borrower, describing said
Reportable Event and within twenty (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 ten (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 ten (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 thirty (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) Promptly upon receipt thereof, notices with respect to the ratings for
Borrower’s or General Partner’s long-term, senior unsecured debt.




     (x) As soon as possible, and in any event within ten (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




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



     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



72









 




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; (v)
unconsolidated joint ventures and partnerships, and (vi) Assets Under Development. The total
investment in all the foregoing investment categories in the aggregate shall be less than or equal
to thirty-five percent (35%) 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. Upon request of the Administrative Agent, 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 6.20 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 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.



73









 





     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 general business purposes of the Borrower, including
without limitation working capital needs, closing costs, interim funding for property acquisitions
and construction of new industrial properties, and/or payment of other debts and obligations of
Borrower.



     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 9.9 below, the
General Partner may make distributions to its shareholders. 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(b)(iii) 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 9.9, Borrower’s Subsidiaries will not:



     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



74









 




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. Without the consent of the Required Lenders, allow (i) the General Partner to own less than
fifty-one percent (51%) of the partnership interests in Borrower, (ii) the Borrower to be
controlled by a Person other than the General Partner, (iii) a Change in Control to occur, or (iv)
any pledge of, other encumbrance on, or conversion to limited partnership interests of, any of the
general partnership interests in the Borrower. If any of the foregoing occurs with the consent of
the Required Lenders, each non-consenting Lender shall have the option to terminate its Commitment
and such termination shall be effective upon notice to Administrative Agent and Borrower of the
termination. Upon the termination of a Lender’s Commitment in accordance with the foregoing
provision, the Lender’s obligation to fund Borrowings and to issue Facility Letters of Credit shall
be terminated and Borrower shall repay any outstanding Obligations due to such Lender prior to or
concurrently with the occurrence of any of the foregoing events. Following the termination of any
Commitments pursuant to this provision, the Aggregate Commitment shall be reduced by the amount of
the Commitments terminated, and the pro rata shares of each remaining Lender shall be adjusted to
reflect the new Aggregate Commitment.



     9.4. Use of Proceeds. Apply or permit to be applied any proceeds of any Borrowing 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. 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 thirty
(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;



75









 






     (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 9.5 shall be deemed to be “Permitted Liens”.




     9.6. 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.”



     9.7. 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 1.50 to
1.0, based on annualizing the results of such fiscal quarter;




     (b) as of any day, Consolidated Total Indebtedness to exceed sixty percent (60%) of
Implied Capitalization Value of the Consolidated Operating Partnership, which limit can
increase to sixty-five percent (65%) for up to two quarters during the term of the Facility;




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




     (d) as of any day, Consolidated Secured Debt to exceed 40% of Implied Capitalization
Value of the Consolidated Operating Partnership.



76









 




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.




     9.8. Change of Control; 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, loss of an investment grade credit
rating or Change in Control, 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.



     9.9. 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.



ARTICLE X.




DEFAULTS




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



     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, 9.7, 9.8, or 9.9 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



77









 




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, 9.7,
9.8, or 9.9 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.



     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



78









 







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 7.75%
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 Proceedings. Borrower 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. [Intentionally Omitted.]



     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



79









 




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 Borrowings 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
Borrowings 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 LC Exposure as of such date plus any accrued and
unpaid interest thereon provided that (i) the portions of such amount attributable to undrawn
Alternative Currency Letters of Credit or LC Disbursements in an Alternative Currency that the
Borrowers are not late in reimbursing shall be deposited in the applicable Alternative Currencies
in the actual amounts of such undrawn Letters of Credit and LC Disbursements and (ii) the
obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Default with respect to any Borrower described in Section 10.10. For the
purposes of this paragraph, the Alternative Currency LC Exposure shall be calculated using the
Exchange Rates on the date notice demanding cash collateralization is delivered to a Borrower.
Each Borrower also shall deposit cash collateral pursuant to this paragraph as and to the extent
required by Section 2.11. Each such deposit pursuant to this paragraph or pursuant to
Section 2.11 shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of each Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s
risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it has
not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the Reimbursement Obligations of the Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated (but subject to the consent of Domestic
Revolving Lenders with LC Exposure representing at least 51% of the total LC Exposure), be applied
to satisfy other obligations of such Borrower under this Agreement. If a Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of a Default, such
amount (to the extent not applied as aforesaid) shall be returned to such Borrower




80












 




within three Business Days after all Defaults have been cured or waived. If a Borrower is
required to provide an amount of cash collateral hereunder pursuant to Section 2.11, such
amount (to the extent not applied as aforesaid) shall be returned to such Borrower as and to the
extent that, after giving effect to such return, such Borrower would remain in compliance with
Section 2.11, and no Default shall have occurred and be continuing. 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 a Borrowing notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the conditions precedent to such
Borrowing shall not constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan
Documents whatsoever shall be valid unless in writing signed by the 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



81









 







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
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. Except as expressly set forth herein, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any 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.



82









 





     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
Domestic Percentages (i) for any amounts not reimbursed by the Borrower (and without limiting the
obligation of the Borrower to do so) 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 without limiting the obligation of the Borrower to do so), 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.



     12.9. Rights as a Lender. With respect to the Commitment, Borrowings 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



83









 







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 cause, which shall
be defined as gross negligence or willful misconduct, 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, 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.



84









 





     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
Domestic Percentage of any Borrowing and until such time as such Defaulting Lender subsequently
funds its Domestic Percentage of such Borrowing, 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 Borrowing in which the Defaulting Lender has not funded
its Domestic 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 Domestic
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



85









 







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.



     12.18. Co-Agents, Managing Agents, Documentation Agent, Syndication Agent, etc. Neither
any of the Lenders identified in this Agreement as a “co-agent” or “managing agent” nor the
Documentation Agent or the Syndication Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary
relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to
such Lenders as it makes with respect to the Administrative Agent in Section 12.11.



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



86









 







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



     13.2. Participations.




     13.2.1 Permitted Participants; Effect. Any Lender may at any time sell 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



87









 







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 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 I
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. The consent of the Issuing Bank shall be
required prior to an assignment becoming effective. 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



88









 







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 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 or New
York, New York 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).



89









 





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 Borrowings 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.



     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 Borrowing hereunder, except that the
foregoing indemnity shall not apply to a Lender to



90









 







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
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.



91









 





     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 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 adversely affected thereby 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 2.18 hereof) or the unpaid principal amount
of such Lender’s Note; or




     (iv) extends the Maturity Date;




     (b) all of the Lenders if such amendment or waiver




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




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




     (iii) modifies or waives any covenant contained in Sections 8.13,
9.3, 9.5, 9.7 or 9.9 hereof; or




     (c) 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



92









 







herein, except
that no amendments affecting the application of payments among the Facilities shall be
effective without the consent of the Required Facility Lenders in respect of the Facilities
adversely affected thereby.



     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.




     (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.



     14.17. Patriot Act CIP Notice. Each Lender hereby notifies the Borrower that pursuant to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act), it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Act.



     14.18. Judgment Currency.



93









 






     (a) The Borrowers’ obligations hereunder and under the other Loan Documents to make
payments in a specified currency (the “Obligation Currency”) shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or converted into
any currency other than the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by the Administrative Agent or a Lender of the
full amount of the Obligation Currency expressed to be payable to the Administrative Agent
or such Lender under this Agreement or the other Loan Documents. If, for the purpose of
obtaining or enforcing judgment against any Loan Party in any court or in any jurisdiction,
it becomes necessary to convert into or from any currency other than the Obligation Currency
(such other currency being hereinafter referred to as the “Judgment Currency”) an amount due
in the Obligation Currency, the conversion shall be made, at the rate of exchange (as quoted
by the Administrative Agent or if the Administrative Agent does not quote a rate of exchange
on such currency, by a known dealer in such currency designated by the
Administrative Agent) determined, in each case, as of the Business Day immediately
preceding the date on which the judgment is given (such Business Day being hereinafter
referred to as the “Judgment Currency Conversion Date”).




     (b) If there is a change in the rate of exchange prevailing between the Judgment
Currency Conversion Date and the date of actual payment of the amount due, the Borrowers
covenant and agree to pay, or cause to be paid, such additional amounts, if any (but in any
event not a lesser amount), as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange prevailing on the date of payment,
will produce the amount of the Obligation Currency which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or judicial award at the rate of
exchange prevailing on the Judgment Currency Conversion Date.




     (c) For purposes of determining any rate of exchange or currency equivalent for this
Section, such amounts shall include any premium and costs payable in connection with the
purchase of the Obligation Currency.



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:




94









 




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




          Each of the above with a copy to:



Barack Ferrazzano Kirschbaum & Nagelberg LLP

200 West Madison

39th Floor

Chicago, Illinois 60606

Attention: Suzanne Bessette-Smith and Douglas W. Anderson

Telecopy: (312) 984-3150




          To each Lender:



At such address as set forth in its Administrative Questionnaire




          To the Administrative Agent:



JPMorgan Chase Bank, N.A., as agent

277 Park Avenue, 2nd Floor

New York, New York 10172

Attention: Vanessa Chiu

Telecopy: (646) 534-0574




          For Borrowings in Qualified Foreign Global Currencies:



J.P.Morgan Europe Limited

125 London Wall

London EC2Y 5AJ

Attention: The Manager

Telecopy: 44 207 777 2360




          With a copy to:



95









 






Sonnenschein Nath & Rosenthal LLP

7800 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]




96









 








     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
 	 
	 	 	 	Name:  	Scott A. Musil 	 
	 	 	 	Title:  	Chief Accounting Officer

(Principal Accounting Officer) 	 


	 	 	 	 	 	 
	GENERAL PARTNER:  	FIRST INDUSTRIAL REALTY TRUST, INC.

 	 
	 	By:  	/s/ Scott A. Musil
 	 
	 	 	Name:  	Scott A. Musil 	 
	 	 	Title:  	Chief Accounting Officer

(Principal Accounting Officer) 	 
	 




S-1











 





	 	 	 	 	 
	LENDERS: 	JPMORGAN CHASE BANK, N.A., Individually and as

Administrative Agent

 	 
	 	By:  	/s/
Vanessa Chiu 	 
	 	 	Name:  	Vanessa Chiu 	 
	 	 	Title:  	Vice
President 	 



S-2









 






	 	 	 	 	 



	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION,
 Individually and as
Syndication Agent:

 	 
	 	By:  	/s/
Cathy A. Casey	 
	 	 	Name:  	Cathy A. Casey 	 
	 	 	Title:  	Managing
Director 	 



S-3









 






	 	 	 	 	 



	 	 	 	 	 
	 	REGIONS BANK, Individually and as Documentation Agent

 	 
	 	By:  	/s/
Lori Chambers 	 
	 	 	Name:  	Lori Chambers 	 
	 	 	Title:  	Vice
President 	 



S-4









 






	 	 	 	 	 



	 	 	 	 	 
	 	U.S. BANK, NATIONAL ASSOCIATION, Individually
 and as
Documentation Agent:

 	 
	 	By:  	/s/
Dennis J. Redpath 	 
	 	 	Name:  	Dennis J. Redpath 	 
	 	 	Title:  	Senior
Vice President 	 



S-5









 






	 	 	 	 	 



	 	 	 	 	 
	 	COMERICA BANK, Individually and as Co-Agent:

 	 
	 	By:  	/s/
Leslie A. Vogel 	 
	 	 	Name:  	Leslie A. Vogel 	 
	 	 	Title:  	Vice
President 	 



S-6









 






	 	 	 	 	 



	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, Individually 

and as Co-Agent:

 	 
	 	By:  	/s/
Dennis David Gallagher 	 
	 	 	Name:  	Dennis David Gallagher 	 
	 	 	Title:  	Senior
Vice President 	 



S-7









 






	 	 	 	 	 



	 	 	 	 	 
	 	WELLS FARGO BANK NATIONAL ASSOCIATION, Individually and as
Co-Agent:

 	 
	 	By:  	/s/
Scott S. Solis 	 
	 	 	Name:  	Scott S. Solis 	 
	 	 	Title:  	Senior
Vice President 	 



S-8









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF TOKYO-MITSUBISHI UJF, LTD.

 	 
	 	By:  	/s/
James T. Taylor 	 
	 	 	Name:  	James T. Taylor 	 
	 	 	Title:  	Vice
President 	 



S-9









 






	 	 	 	 	 



	 	 	 	 	 
	 	SUNTRUST BANK

 	 
	 	By:  	/s/
Nancy B. Richards 	 
	 	 	Name:  	Nancy B. Richards 	 
	 	 	Title:  	Senior
Vice President 	 



S-10









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE NORTHERN TRUST COMPANY

 	 
	 	By:  	/s/
Robert W. Wiarda 	 
	 	 	Name:  	Robert W. Wiarda 	 
	 	 	Title:  	Vice
President 	 



S-11









 






	 	 	 	 	 



	 	 	 	 	 
	 	CHEVY CHASE BANK, F.S.B.

 	 
	 	By:  	/s/
Carlos L. Heard 	 
	 	 	Name:  	Carlos L. Heard 	 
	 	 	Title:  	Vice
President 	 



S-12









 






	 	 	 	 	 



	 	 	 	 	 
	 	FIRST COMMERCIAL BANK NEW YORK AGENCY

 	 
	 	By:  	/s/
M.D.
Shine 	 
	 	 	Name:  	M.D.
Shine 	 
	 	 	Title:  	VP
&
General Manager 	 
	 




S-13











 





EXHIBIT A




COMMITMENT AMOUNTS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Domestic	 	 	Global	 
	Bank	 	Title	 	 	Allocation	 	 	Allocation	 
	JPMorgan Chase Bank,
N.A.
	 	Administrative Agent	 	$	48,260,000	 	 	$	21,740,000	 
	Wachovia Bank, National
Association
	 	Syndication Agent	 	 	48,260,000	 	 	 	21,740,000	 
	Regions Bank
	 	Co-Documentation Agent	 	 	60,000,000	 	 	 	0	 
	US Bank, N.A.
	 	Co-Documentation Agent	 	 	41,370,000	 	 	 	18,630,000	 
	Comerica Bank
	 	Co-Agent	 	 	40,000,000	 	 	 	0	 
	PNC Bank, National
Association
	 	Co-Agent	 	 	27,580,000	 	 	 	12,420,000	 
	Wells Fargo Bank
	 	Co-Agent	 	 	38,000,000	 	 	 	0	 
	Bank of
Tokyo-Mitsubishi UFJ,
Ltd.
	 	 	 	 	 	 	20,680,000	 	 	 	9,320,000	 
	SunTrust Bank
	 	 	 	 	 	 	18,610,000	 	 	 	8,390,000	 
	The Northern Trust
Company
	 	 	 	 	 	 	17,240,000	 	 	 	7,760,000	 
	Chevy Chase Bank, F.S.B.
	 	 	 	 	 	 	20,000,000	 	 	 	0	 
	First Commercial Bank
	 	 	 	 	 	 	20,000,000	 	 	 	0	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	Total
	 	 	 	 	 	$	400,000,000	 	 	$	100,000,000	 
	 
	 	 	 	 	 	 	 	 	 	 






 









 






EXHIBIT B-1




FORM OF NOTE




                                        , 2007




     On or before the Maturity Date, as defined in that certain Fifth Amended and Restated
Unsecured Revolving Credit Agreement dated as of                                         , 2007 (the “Agreement”) between FIRST
INDUSTRIAL, L.P., a Delaware limited partnership (“Borrower”), First Industrial Realty
Trust, Inc., a Maryland corporation,                                         , individually and as Syndication Agent,
                                        , individually and as Documentation Agent, 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 New York, New York, 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 Borrowing 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




                                        , 2007




     On or before the last day of each “Interest Period” applicable to a “Competitive Bid Loan”, as
defined in that certain Fifth Amended and Restated Unsecured Revolving Credit Agreement dated as of
                                        , 2007 (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 2.17 of the Agreement, in immediately available
funds at the office of the Administrative Agent in New York, New York, 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	 	 
	 

	 	Principal
	 	Notation
	Date

	 	Balance
	 	Made by







 











 





EXHIBIT C-1




FORM OF COMPETITIVE BID QUOTE REQUEST




(Section 2.17(b))





	To: 	 	 JPMorgan Chase Bank, N.A.
as administrative agent (the “Agent”)
	 
	From: 	 	 First Industrial, L.P. (the “Borrower”)
	 
	Re: 	 	 FIfth Amended and Restated Unsecured
Revolving Credit Agreement dated as of                     ,
2007 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 2.17(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:  	 	 
	 	Its: 	 	 
	 	 	 	 





 




			
	1	 	Amount must be at least $10,000,000 and an integral
multiple of $1,000,000.
	 
	2	 	One, two, three or six months (Competitive LIBOR Margin)
or up to 180 days (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 2.17(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 2.17(c) of the Fifth Amended and Restated Unsecured Revolving
Credit Agreement dated as of                     , 2007 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:                     , 20___




          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 2.17(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 10:00 a.m. (New York time) on                     ,
20___.



	 	 	 	 	 
	 	JPMorgan Chase, N.A., as administrative Agent
 	 
	 	
 	 
	 	
 	 
	 	By:  	 	 
	 	Its: 	 	 
	 	 	 	 




 









 






	 	 	 	 	 



EXHIBIT C-3




COMPETITIVE BID QUOTE




(Section 2.17(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 2.17(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:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Interest	 	 	[Competitive LIBOR	 	 	[Absolute	 	 	 	 
	Principal Amount4	 	 	Period5	 	 	Margin6]	 	 	Rate7]	 	 	Minimum Amount8	 







 




			
	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 2.17(d)(ii)(4)).




 









 










     We understand and agree that the offer(s) set forth above, subject to the satisfaction of the
applicable conditions set forth in the Fifth Amended and Restated Unsecured Revolving Credit
Agreement dated as of                     , 2007, 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”), 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:  	 	 
	 	 	Its: 	 	 
	 	 	 	 













 






	 	 	 	 	 



EXHIBIT D




FORM OF GUARANTY





     This Guaranty is made as of                     , 2007, 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 revolving credit facility available to Borrower in the
aggregate principal amount of up to $500,000,000, subject to future increase up to $700,000,000
(“Facility”).



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



     C. Borrower has executed and delivered to Lender one or more Promissory Notes 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 Revolving Credit 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 Revolving Credit Agreement.



     D. Guarantor is the sole general partner of Borrower and, therefore, Guarantor will derive
financial benefit from the Facility evidenced by the Note, Revolving Credit 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 Revolving Credit 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 Revolving
Credit Agreement, and the other Loan Documents;



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



     (c) the full, complete, and punctual observance, performance, and satisfaction of all of the
obligations, duties, covenants, and agreements of Borrower under the Revolving Credit 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 Revolving Credit 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 Revolving Credit
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 Revolving Credit 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 Revolving
Credit 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,
Revolving Credit 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
Revolving Credit Agreement and other Loan Documents and this Guaranty have been performed, notwithstanding any
act or thing which might otherwise operate as a legal or equitable discharge of a surety.
Guarantor further understands and agrees that Lender may at any time enter into agreements with
Borrower to amend and modify the Note, Revolving Credit 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 Revolving Credit 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
Revolving Credit 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, Revolving Credit
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, Revolving Credit 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, Revolving Credit 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 Revolving Credit 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 Revolving Credit
Agreement, any of the Loan Documents, or any property subject thereto (other than any action or
proceeding brought by any Lender or participant against the Administrative Agent (as defined in the
Revolving Credit 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 Revolving Credit
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 & Nagelberg LLP

200 West Madison

39th Floor

Chicago, Illinois 60606

Attention: Suzanne Bessette-Smith and Douglas W. Anderson















 







Telecopy: (312) 984-3150



To the Lender:



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

277 Park Avenue, 2nd Floor

New York, New York 10172

Attention: Vanessa Chiu

Telecopy: (646) 534-0574



With a copy to:



Sonnenschein Nath & Rosenthal LLP

7800 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

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	SS.
	 	 
	COUNTY OF COOK

	 	 	)	 	 	 	 	 






     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
                
                , 2007.



Notary Public




 









 





EXHIBIT G




WIRING INSTRUCTIONS




	 	 	 	 	 	 	 
	To:	 	JPMorgan Chase Bank, N.A.,
	 	 	as Administrative Agent (the “Agent”)
	 	 	under the Credit Agreement Described Below
	 
	 	 	 	 	 	 
	 

	 	Re:
	 	Fifth Amended and Restated Unsecured Revolving Credit Agreement, dated as of
               
             ,
2007 (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”), JPMorgan Chase Bank, N.A., 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 Borrowings 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 (JPMorgan Chase Bank, N.A.)
	 
	 	 
	Reference/Attention To

	 	Dawn Buchko
	 
	 	 
	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 Fifth Amended and Restated
Unsecured Revolving Credit Agreement, dated as of
                
                , 2007 (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:	 	 	 	 
	 

	 	 	 	 	 	 	 	 






 






o





 





SCHEDULE I




CALCULATION OF COVENANTS




[quarter]




1. Permitted Investments (Section 8.3)




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

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

	 	 	 	 	 	N/A
	(c) stock holdings other than in Subsidiaries

	 	 	 	 	 	N/A
	(d) mortgages

	 	 	 	 	 	N/A
	(e) joint ventures and partnerships

	 	 	 	 	 	N/A
	(f) Assets Under Development

	 	 	 	 	 	N/A
	(g) total investments in (a)-(f)

	 	 	 	 	 	35% of Market
Value
Net
Worth






	 	 	 	 	 
	2. EBITDA To Fixed Charges (Section 9.7(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:	 	1.50
	 
	 	 	 	 
	4. Consolidated Total Indebtedness Ratio (Section 9.7(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) 7.75%	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

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

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (x) then-current book value of each Asset
Under Development	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xi) Intentionally Deleted	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xii) then-current book value of Unimproved Land	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xiii) Intentionally Deleted	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xiv) 10% of Implied Capitalization Value	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xv) Intentionally Deleted	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

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

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xvii) the lesser of 50% of item (xvi) or (xiv)	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xviii) 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)	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xix) first mortgage receivables	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xx) sum of (ix), (x), (xii), (xvii), (xviii) and
(xix) is “Implied Capitalization Value”	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	CONSOLIDATED TOTAL INDEBTEDNESS RATIO	 	 
	 
	 	 	 	 
	[(a) divided by (b) expressed as a percentage]:	 	 






 









 






	 	 	 	 	 
	Must be less than or equal to:	 	60% (which limit can increase to 65% for up to two quarters during term of the Facility)
	 
	 	 	 	 
	6. Value of Unencumbered Assets Ratio (Section 9.7(c))	 	 
	 
	 	 	 	 
	 

	 	(a) Value of Unencumbered Assets	 	 
	 
	 	 	 	 
	 

	 	     (i) Property Operating Income attributable to
Unencumbered Assets that are not Assets under
Development 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) 7.75%	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (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 Assets Under
Development that are Unencumbered Assets	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	      (xii) Intentionally Deleted	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xiii) Intentionally Deleted	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

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

	 	 	 	 

	 
	 	 	 	 
	 

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

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xvi) 50% of item (xv)	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xvii) Intentionally Deleted	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xviii) Intentionally Deleted	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xix) Intentionally Deleted.	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xx) Intentionally Deleted.	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xxi) 10% of the Value of Unencumbered Assets	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xxii) lesser of (xvi) and (xxi)	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (xxiii) Sum of (viii) plus (ix) plus (x) 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. Consolidated Secured Debt to Implied Capitalization Value (Section 9.7(d))
	 
	 	 	 	 
	 

	 	(a) Consolidated Secured Debt	 	 
	 
	 	 	 	 
	 

	 	     (i) Secured Indebtedness of Consolidated
Operating Partnership	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 

	 	     (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:	 	40%





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




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 Fifth Amended and Restated Unsecured Revolving Credit Agreement dated as
of           
              
                 among






 




			
	9	 	Select as applicable.





 









 




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



6. Assigned Interest:




	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	Amount of	 	Domestic Percentage
	 	 	Commitment/Loans	 	Commitment/Loans	 	Assigned of
	Facility Assigned	 	for 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] 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 J




FORM OF DESIGNATION AGREEMENT




Dated                     , 20___




     Reference is made to the Fifth Amended and Restated Unsecured Revolving Credit Agreement dated
as of                     , 2007 (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,                      as Syndication Agent,                      
as Documentation Agent 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 2.17 of the
Credit Agreement. Any assignment by Designor to Designee of its rights to make a Competitive Bid
Loan pursuant to such Section 2.17 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 2.17 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 Date10                               ,           , 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:	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 	 







 




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






 











 





EXHIBIT K




AMENDMENT TO FIFTH AMENDED AND RESTATED

UNSECURED REVOLVING CREDIT AGREEMENT




     This Amendment to the Fifth Amended and Restated Unsecured Revolving Credit Agreement (the
“Agreement”) is made as of       

               
                   ,
20    , by and among First Industrial, L.P., a
Delaware limited partnership (“Borrower”) First Industrial Realty Trust, Inc., JPMorgan Chase Bank,
N.A., individually and as “Administrative Agent,” and one or more new or existing “Lenders” shown
on the signature pages hereof.



R E C I T A L S




     A. Borrower, Administrative Agent and certain other Lenders have entered into an Fifth Amended
and Restated Unsecured Revolving Credit Agreement dated as of                                         , 2007 (as amended, the “Credit
Agreement”). All capitalized terms used herein and not otherwise defined shall have the meanings
given to them in the Credit Agreement.



     B. Pursuant to the terms of the Credit Agreement, the Lenders initially agreed to provide
Borrower with a Domestic Revolving Facility in an aggregate principal amount of up to $400,000,000
and a Global Revolving Facility in an aggregate principal amount of $100,000,000. The Borrower,
the Administrative Agent and the Lenders now desire to amend the Credit Agreement in order to,
among other things (i) increase the Domestic Revolving Facility to $                                        ; (ii)
increase the Global Revolving Facility to $                                        , and (iii) admit [name of new banks] as
“Lenders” under the Domestic Revolving Facility pursuant to the Credit Agreement.



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



AGREEMENTS




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



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



 









 





     3. From and after the Effective Date, the Aggregate Commitment shall equal
                     Million
Dollars ($         ,000,000), consisting of a Domestic Revolving Commitment
equal to                 
              
           Million Dollars
($         ,000,000) and a Global Revolving Commitment
equal to                
                
          Million Dollars
 ($         ,000,000).



     4. For purposes of Section 15.1 of the Credit Agreement (Giving Notice), the
address(es) and facsimile number(s) for [name of new banks] shall be as specified below their
respective signature(s) on the signature pages of this Amendment.



     5. The Borrower hereby represents and warrants that, as of the Effective Date, there is no
Default or Event of Default, the representations and warranties contained in Articles VI and VII
of the Credit Agreement are true and correct as of such and the Borrower has no offsets or claims
against any of the Lenders.



     6. As expressly modified as provided herein, the Credit Agreement shall continue in full force
and effect.



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



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



	 	 	 	 	 
	FIRST INDUSTRIAL, L.P.

 	 	 
	By:  	FIRST INDUSTRIAL REALTY TRUST, INC., its general partner
 	 	 
	 	 	 	 
	By: 	  
	 	 
	 	Print Name:	 	 	 
	 	Title:	 	 	 
	 
	First Industrial, L.P.



c/o First Industrial Realty Trust, Inc.

311 South Wacker Drive, Suite 400

Chicago, Illinois 60606

Attention: Mr. Scott Musil

Facsimile: (312) 895-9380

 	 	 
	 
	FIRST INDUSTRIAL REALTY TRUST, INC.

 	 	 
	By: 	 	 	 
	 	Print Name:	 	 
	 	Title:	 	 



 









 






	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A., Individually and as Administrative Agent
 	 	 
	 
	By: 	 
	 	 
	 	Print Name:	 	 	 
	 	Title:	 	 	 
	 
	JPMorgan Chase Bank, N.A., as agent

277 Park Avenue, 2nd Floor

New York, New York 10172

Attention: Vanessa Chiu

Telecopy: (646) 534-0574



Amount of Commitment: $                                        





[NAME OF NEW LENDER]

 	 	 
	By:  	 
 	 	 
	 	Print Name:  	 	 	 
	 	Title:  	 	 	 
	 



	 	 	 	 	 
	[Address of New Lender]	 	 
	Phone:  	 	 	 
	Facsimile:  	 	 	 
	Attention: