exv10w1




Exhibit
10.1




 





FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT



dated as of November 10, 2010



among



AMB PROPERTY, L.P.,



THE BANKS LISTED HEREIN,



JPMORGAN CHASE BANK, N.A.,



as Administrative Agent,



J.P. MORGAN EUROPE LIMITED,



as Administrative Agent for Alternate Currencies



BANK OF AMERICA, N.A.,



as Syndication Agent,



J.P. MORGAN SECURITIES LLC



and



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,



as Joint Lead Arrangers and Joint Bookrunners



PNC BANK, NA,



THE BANK OF NOVA SCOTIA



and



WELLS FARGO BANK, N.A.,



as Documentation Agents



COMPASS BANK,



US BANK, NA



and



UNION BANK, N.A.,



as Managing Agents



 








 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I

	 
	 	 	 	 
	DEFINITIONS

	 
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Accounting Terms and Determinations
	 	 	31	 
	Section 1.3 Types of Borrowings
	 	 	32	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	THE CREDITS

	 
	 	 	 	 
	Section 2.1 Commitments to Lend
	 	 	32	 
	Section 2.2 Notice of Borrowing
	 	 	33	 
	Section 2.3 Swingline Loan Subfacility
	 	 	35	 
	Section 2.4 Money Market Borrowings
	 	 	37	 
	Section 2.5 Notice to Banks; Funding of Loans
	 	 	41	 
	Section 2.6 Notes
	 	 	43	 
	Section 2.7 Method of Electing Interest Rates
	 	 	44	 
	Section 2.8 Interest Rates
	 	 	45	 
	Section 2.9 Fees
	 	 	46	 
	Section 2.10 Maturity Date
	 	 	47	 
	Section 2.11 Optional Prepayments
	 	 	47	 
	Section 2.12 Mandatory Prepayments
	 	 	49	 
	Section 2.13 General Provisions as to Payments
	 	 	49	 
	Section 2.14 Funding Losses
	 	 	51	 
	Section 2.15 Computation of Interest and Fees
	 	 	51	 
	Section 2.16 Use of Proceeds
	 	 	51	 
	Section 2.17 Letters of Credit
	 	 	51	 
	Section 2.18 Letter of Credit Usage Absolute
	 	 	55	 
	Section 2.19 Special Provisions Regarding Alternate Currency Loans
	 	 	56	 
	Section 2.20 Letters of Credit Maturing after the Maturity Date
	 	 	56	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	CONDITIONS

	 
	 	 	 	 
	Section 3.1 Closing
	 	 	57	 
	Section 3.2 Borrowings
	 	 	58	 






i









 






	 	 	 	 	 
	 	 	Page
	ARTICLE IV

	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 
	Section 4.1 Existence and Power
	 	 	60	 
	Section 4.2 Power and Authority
	 	 	60	 
	Section 4.3 No Violation
	 	 	61	 
	Section 4.4 Financial Information
	 	 	62	 
	Section 4.5 Litigation
	 	 	62	 
	Section 4.6 Intentionally Omitted
	 	 	62	 
	Section 4.7 Environmental
	 	 	62	 
	Section 4.8 Taxes
	 	 	63	 
	Section 4.9 Full Disclosure
	 	 	63	 
	Section 4.10 Solvency
	 	 	63	 
	Section 4.11 Use of Proceeds
	 	 	63	 
	Section 4.12 Governmental Approvals
	 	 	63	 
	Section 4.13 Investment Company Act; Public Utility Holding Company Act
	 	 	63	 
	Section 4.14 Principal Offices
	 	 	64	 
	Section 4.15 REIT Status
	 	 	64	 
	Section 4.16 Patents, Trademarks, etc.
	 	 	64	 
	Section 4.17 Judgments
	 	 	64	 
	Section 4.18 No Default
	 	 	64	 
	Section 4.19 Licenses, etc.
	 	 	64	 
	Section 4.20 Compliance With Law
	 	 	64	 
	Section 4.21 No Burdensome Restrictions
	 	 	64	 
	Section 4.22 Brokers’ Fees
	 	 	64	 
	Section 4.23 Intentionally Omitted
	 	 	65	 
	Section 4.24 Insurance
	 	 	65	 
	Section 4.25 Organizational Documents
	 	 	65	 
	Section 4.26 Unencumbered Properties
	 	 	65	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	AFFIRMATIVE AND NEGATIVE COVENANTS

	 
	 	 	 	 
	Section 5.1 Information
	 	 	65	 
	Section 5.2 Payment of Obligations
	 	 	68	 
	Section 5.3 Maintenance of Property; Insurance; Affiliate Transfers
	 	 	68	 
	Section 5.4 Maintenance of Existence
	 	 	69	 
	Section 5.5 Compliance with Laws
	 	 	69	 
	Section 5.6 Inspection of Property, Books and Records
	 	 	69	 
	Section 5.7 Existence
	 	 	69	 
	Section 5.8 Financial Covenants
	 	 	69	 
	Section 5.9 Restriction on Fundamental Changes
	 	 	71	 
	Section 5.10 Changes in Business
	 	 	72	 
	Section 5.11 General Partner Status
	 	 	72	 
	Section 5.12 Other Indebtedness
	 	 	73	 






ii









 






	 	 	 	 	 
	 	 	Page
	Section 5.13 Forward Equity Contracts
	 	 	73	 
	Section 5.14 Capital Funding Loans
	 	 	74	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	DEFAULTS

	 
	 	 	 	 
	Section 6.1 Events of Default
	 	 	75	 
	Section 6.2 Rights and Remedies
	 	 	78	 
	Section 6.3 Notice of Default
	 	 	79	 
	Section 6.4 Actions in Respect of Letters of Credit
	 	 	79	 
	Section 6.5 Distribution of Proceeds after Default
	 	 	81	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	THE AGENTS

	 
	 	 	 	 
	Section 7.1 Appointment and Authorization
	 	 	81	 
	Section 7.2 Agency and Affiliates
	 	 	81	 
	Section 7.3 Action by Agents
	 	 	81	 
	Section 7.4 Consultation with Experts
	 	 	82	 
	Section 7.5 Liability of Agents
	 	 	82	 
	Section 7.6 Indemnification
	 	 	82	 
	Section 7.7 Credit Decision
	 	 	82	 
	Section 7.8 Successor Agents
	 	 	83	 
	Section 7.9 Consents and Approvals
	 	 	83	 
	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	CHANGE IN CIRCUMSTANCES

	 
	 	 	 	 
	Section 8.1 Basis for Determining Interest Rate Inadequate or Unfair
	 	 	84	 
	Section 8.2 Illegality
	 	 	84	 
	Section 8.3 Increased Cost and Reduced Return
	 	 	85	 
	Section 8.4 Taxes
	 	 	87	 
	Section 8.5 Base Rate Loans Substituted for Affected Euro-Dollar Loans
	 	 	89	 
	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	MISCELLANEOUS

	Section 9.1 Notices
	 	 	90	 
	Section 9.2 No Waivers
	 	 	90	 
	Section 9.3 Expenses; Indemnification
	 	 	90	 
	Section 9.4 Sharing of Set-Offs
	 	 	92	 
	Section 9.5 Amendments and Waivers
	 	 	93	 
	Section 9.6 Successors and Assigns
	 	 	94	 
	Section 9.7 Collateral
	 	 	97	 






iii









 






	 	 	 	 	 
	 	 	Page
	Section 9.8 Governing Law; Submission to Jurisdiction; Judgment Currency
	 	 	97	 
	Section 9.9 Counterparts; Integration; Effectiveness
	 	 	98	 
	Section 9.10 WAIVER OF JURY TRIAL
	 	 	99	 
	Section 9.11 Survival
	 	 	99	 
	Section 9.12 Domicile of Loans
	 	 	99	 
	Section 9.13 Limitation of Liability
	 	 	99	 
	Section 9.14 Recourse Obligation
	 	 	99	 
	Section 9.15 Confidentiality
	 	 	99	 
	Section 9.16 Defaulting Lenders
	 	 	100	 
	Section 9.17 Banks’ ERISA Covenant
	 	 	102	 
	Section 9.18 No Bankruptcy Proceedings
	 	 	102	 
	Section 9.19 Optional Increase in Commitments
	 	 	103	 
	Section 9.20 Managing Agents, Documentation Agents and Co-Agents
	 	 	103	 
	Section 9.21 USA PATRIOT Act
	 	 	104	 






SCHEDULE 1.1

SCHEDULE 2.17

SCHEDULE 4.4(b)

SCHEDULE 4.6

SCHEDULE 5.11(c)(1)

SCHEDULE 5.11(c)(2)









iv









 








FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT




          THIS FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Agreement”) dated
as of November 10, 2010 among AMB PROPERTY, L.P. (the “Borrower”), the BANKS listed on the
signature pages hereof, JPMORGAN CHASE BANK, N.A., as Administrative Agent, J.P. MORGAN EUROPE
LIMITED, as Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent, J.P. MORGAN
SECURITIES LLC and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as Joint Lead Arrangers and
Joint Bookrunners, PNC BANK, NA, THE BANK OF NOVA SCOTIA and WELLS FARGO BANK, N.A., as
Documentation Agents, and COMPASS BANK, US BANK, NA and UNION BANK, N.A., as Managing Agents.




W I T N E S S E T H:




          WHEREAS, the Borrower, the Administrative Agent and certain of the Banks entered into the
Existing Revolving Credit Agreement; and




          WHEREAS, the parties hereto have agreed to amend and restate the terms and conditions
contained in the Existing Revolving Credit Agreement in their entirety as hereinafter set forth.




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




          I. The Existing Revolving Credit Agreement is hereby modified so that all of the terms and
conditions of the aforesaid Existing Revolving Credit Agreement shall be restated in their entirety
as set forth herein, and the Borrower agrees to comply with and be subject to all of the terms,
covenants and conditions of this Agreement.




          II. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and
their respective successors and assigns, and shall be deemed to be effective as of the date hereof.




          III. Any reference in the Notes, any other Loan Document or any other document executed in
connection with the Existing Revolving Credit Agreement shall be deemed to refer to this Agreement.




          The parties hereto agree as follows:




ARTICLE I




DEFINITIONS



          Section 1.1 Definitions. The following terms, as used herein, have the following meanings:








 









 








          “Absolute Rate Auction” means a solicitation of Money Market Quotes setting forth Money Market
Absolute Rates pursuant to Section 2.4.




          “Adjusted EBITDA” means, for any period, EBITDA for such period minus (a) an amount equal to
appropriate reserves for replacements of Ten Cents ($0.10) (or in the case of any Real Property
Asset owned by an Investment Affiliate or by a Consolidated Subsidiary, Borrower’s Share of Ten
Cents ($0.10) per square foot per annum for each Real Property Asset (provided that, as to any Real
Property Asset acquired during such period such Ten Cents ($0.10) per square foot adjustment shall
be pro-rated for the period of ownership), plus (b) capitalized interest included in the basis of
assets sold or contributed during such period to the extent that the gain from such sale or
contribution was included or the loss from such sale or contribution was deducted in the
calculation of EBITDA. Adjusted EBITDA includes rental income actually earned and shall exclude
non-cash expenses related to employee and trustee stock and stock options.




          “Adjusted Interbank Offered Rate” as applicable to any Interest Period means a rate per annum
equal to the quotient obtained (rounded upward, if necessary, to the next higher 1/100 of 1%) by
dividing (i) the Interbank Offered Rate applicable during such Interest Period by (ii) 1.00 minus
the Euro-Dollar Reserve Percentage.




          “Administrative Agent” shall mean (i) with respect to Notices of Borrowing and the
administration of Loans denominated in an Alternate Currency, Alternate Currency Letters of Credit,
and interest and fee payments with respect to Loans and Letters of Credit denominated in an
Alternate Currency, J.P. Morgan Europe Limited; and (ii) for all other purposes under this
Agreement, JPMorgan Chase Bank, N.A., in each case in its respective capacity as Administrative
Agent hereunder, and its respective permitted successors in such capacity in accordance with the
terms of this Agreement.




          “Administrative Questionnaire” means with respect to each Bank, an administrative
questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative
Agent (with a copy to the Borrower) duly completed by such Bank.




          “Affiliate”, as applied to any Person, means any other Person that directly or indirectly
controls, is controlled by, or is under common control with, that Person. For purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power to vote ten percent (10.0%) or more of the equity securities having voting
power for the election of directors of such Person or otherwise to direct or cause the direction of
the management and policies of that Person, whether through the ownership of voting equity
securities or by contract or otherwise.




          “Agents” shall mean the Administrative Agent and the Syndication Agent, collectively.




          “Agreement” shall mean this Fourth Amended and Restated Revolving Credit Agreement as the same
may from time to time hereafter be modified, supplemented or amended.








2









 








          “Alternate Currency” means the lawful currency of any of (i) the United Kingdom (British
Pounds Sterling) or (ii) the European Economic Union (Euros) or (iii) Japan (Yen) or (iv) Canada
(Canadian Dollars). For all purposes of this Agreement, including without limitation the
calculation of the Dollar Equivalent Amount at any time and from time to time, each Alternate
Currency will be marked-to-market on the last Business Day of each month.




          “Alternate Currency Commitment” means with respect to each Bank, the amount set forth under
the name of such Bank on the signature pages hereof as its commitment for Loans in Alternate
Currencies (and, for each Bank which is an Assignee, the amount set forth in the Transfer
Supplement entered into pursuant to Section 9.6(c) as the Assignee’s Alternate Currency
Commitment), as such amount may be reduced from time to time pursuant to Section 2.11(e) or in
connection with an assignment to an Assignee, and as such amount may be increased in connection
with an assignment from an Assignor or pursuant to Section 9.19. The initial aggregate Dollar
Equivalent Amount of the Banks’ Alternate Currency Commitments is $565,000,000.




          “Alternate Currency Letter of Credit” means a Letter of Credit denominated in Alternate
Currency.




          “Alternate Currency Sublimit” means, a Dollar Equivalent Amount of Loans denominated in an
Alternate Currency and Alternate Currency Letter(s) of Credit (and, to the extent expressly
provided herein, Loans and Letters of Credit denominated in Dollars), equal to the aggregate Dollar
Equivalent Amount of the Banks’ Alternate Currency Commitments, as such amount may be increased in
accordance with Section 9.19 from time to time.




          “AMB Revolver Provisions” has the meaning set forth in Section 9.5(b).




          “Applicable Fee Percentage” means the respective percentages per annum determined, at any
time, based on the range into which Borrower’s Credit Rating then falls, in accordance with the
table set forth below. Any change in Borrower’s Credit Rating causing it to move to a different
range on the table shall effect an immediate change in the Applicable Fee Percentage. Borrower
shall have not less than two (2) Credit Ratings at all times. In the event that Borrower receives
only two (2) Credit Ratings (one of which must be from S&P or Moody’s), and such Credit Ratings are
not equivalent, the Applicable Fee Percentage shall be determined by the higher of such two (2)
Credit Ratings. In the event that Borrower receives more than two (2) Credit Ratings, and such
Credit Ratings are not all equivalent, the Applicable Fee Percentage shall be determined by the
highest Credit Rating, provided that said highest rating shall be from S&P or Moody’s;
provided, further, that if the highest rating is not from S&P or Moody’s, then the
Applicable Fee Percentage shall be determined by the highest Credit Rating from either S&P or
Moody’s. Should Borrower lose its Investment Grade Rating from both S&P and Moody’s, the
Applicable Fee Percentage will revert to the unrated portion of the grid below. Upon reinstatement
of its Investment Grade Rating from either S&P or Moody’s, the Applicable Fee Percentage will
revert to the rated pricing grid below.







3









 








	 	 	 	 	 
	Range of	 	 
	Borrower’s	 	 
	Credit Rating	 	Applicable
	(S&P/Moody’s	 	Fee Percentage
	Ratings)	 	(% per annum)
	A-/A3 or better
	 	 	0.300	 
	BBB+/Baa1
	 	 	0.350	 
	BBB/Baa2
	 	 	0.400	 
	BBB-/Baa3
	 	 	0.450	 
	<BBB-/Baa3 or unrated
	 	 	0.500	 






          “Applicable Interest Rate” means (i) with respect to any Fixed Rate Indebtedness, the fixed
interest rate applicable to such Fixed Rate Indebtedness at the time in question, and (ii) with
respect to any Floating Rate Indebtedness, either (x) the rate at which the interest rate
applicable to such Floating Rate Indebtedness is actually capped (or fixed pursuant to an interest
rate hedging device), at the time of calculation, if Borrower has entered into an interest rate cap
agreement or other interest rate hedging device with respect thereto or (y) if Borrower has not
entered into an interest rate cap agreement or other interest rate hedging device with respect to
such Floating Rate Indebtedness, the greater of (A) the rate at which the interest rate applicable
to such Floating Rate Indebtedness could be fixed for the remaining term of such Floating Rate
Indebtedness, at the time of calculation, by Borrower’s entering into any unsecured interest rate
hedging device either not requiring an upfront payment or if requiring an upfront payment, such
upfront payment shall be amortized over the term of such device and included in the calculation of
the interest rate (or, if such rate is incapable of being fixed by entering into an unsecured
interest rate hedging device at the time of calculation, a fixed rate equivalent reasonably
determined by Administrative Agent) or (B) the floating rate applicable to such Floating Rate
Indebtedness at the time in question.




          “Applicable Lending Office” means with respect to any Bank, (i) in the case of its Base Rate
Loans and Swingline Loans, its Domestic Lending Office, (ii) in the case of its Euro-Dollar Loans,
its Euro-Dollar Lending Office, and (iii) in the case of its Money Market Loans, its Money Market
Lending Office.




          “Applicable Margin” means with respect to each Loan, the respective percentages per annum
determined, at any time, based on the range into which Borrower’s Credit Rating then falls, in
accordance with the table set forth below. Any change in Borrower’s Credit Rating causing it to
move to a different range on the table shall effect an immediate change in the Applicable Margin.
Borrower shall have not less than two (2) Credit Ratings at all times. In the event that Borrower
receives only two (2) Credit Ratings (one of which must be from S&P or Moody’s), and such Credit
Ratings are not equivalent, the Applicable Margin shall be determined by the higher of such two (2)
Credit Ratings. In the event that Borrower receives more than two (2) Credit Ratings, and such
Credit Ratings are not all equivalent, the Applicable Margin shall be determined by the highest
Credit Rating, provided that said highest rating shall be from S&P or






4









 







Moody’s; provided, further, that if the highest rating is not from S&P or
Moody’s, then the Applicable Margin shall be determined by the highest Credit Rating from either
S&P or Moody’s. Should Borrower lose its Investment Grade Rating from both S&P and Moody’s, the
Applicable Margin will revert to the unrated portion of the grid below. Upon reinstatement of its
Investment Grade Rating from either S&P or Moody’s, the Applicable Margin will revert to the rated
pricing grid below.




	 	 	 	 	 	 	 	 	 
	Range of	 	Applicable	 	 
	Borrower’s	 	Margin for	 	Applicable
	Credit Rating	 	Base Rate	 	Margin for Euro
	(S&P/Moody’s	 	Loans	 	Dollar Loans
	Ratings)	 	(% per annum)	 	(% per annum)
	A-/A3 or better
	 	 	0.750	 	 	 	1.750	 
	BBB+/Baa1
	 	 	0.850	 	 	 	1.850	 
	BBB/Baa2
	 	 	1.000	 	 	 	2.000	 
	BBB-/Baa3
	 	 	1.300	 	 	 	2.300	 
	<BBB-/Baa3
or unrated
	 	 	2.000	 	 	 	3.000	 






          “Asset Management Fees” means, for any period, the actual asset management fees paid by
non-wholly owned Consolidated Subsidiaries and Investment Affiliates of the Borrower and third
parties unaffiliated with the Borrower or, in the case of any such fees paid to any Consolidated
Subsidiaries or Investment Affiliates, the Borrower’s Share thereof, for such period, net of any
expenses incurred in connection therewith for such period.




          “Assignee” has the meaning set forth in Section 9.6(c).




          “Balance Sheet Indebtedness” means with respect to any Person and assuming such Person is
required to prepare financial statements in accordance with GAAP, without duplication, the
Indebtedness of such Person which would be required to be included on the liabilities side of the
balance sheet of such Person in accordance with GAAP excluding, in the case of Borrower or General
Partner, the Balance Sheet Indebtedness of any Consolidated Subsidiary. Notwithstanding the
foregoing, Balance Sheet Indebtedness shall include current liabilities and all guarantees of
Indebtedness of any Person.




          “Balloon Payments” shall mean with respect to any loan constituting Balance Sheet
Indebtedness, any required principal payment of such loan which is either (i) payable at the
maturity of such Indebtedness or (ii) in an amount which exceeds fifteen percent (15%) of the
original principal amount of such loan; provided, however, that the final payment of a fully
amortizing loan shall not constitute a Balloon Payment.








5









 








          “Bank” means each entity (other than Borrower) listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.6(c), and their respective successors and each
Designated Lender; provided, however, that the term “Bank” shall exclude
each Designated Lender when used in reference to a Committed Loan, the Commitments or terms
relating to the Committed Loans and the Commitments and shall further exclude each Designated
Lender for all other purposes hereunder except that any Designated Lender which funds a Money
Market Loan shall, subject to Section 9.6(d), have the rights (including the rights given to a Bank
contained in Sections 9.3 and 9.5 and otherwise in Article 9) and obligations of a Bank associated
with holding such Money Market Loan. For purposes of this Agreement, neither J.P. Morgan
Securities, Inc. nor Banc of America Securities LLC shall constitute a “Bank.”




          “Bankruptcy Code” shall mean Title 11 of the United States Code, entitled “Bankruptcy”, as
amended from time to time, and any successor statute or statutes.




          “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator,
custodian, assignee for the benefit of creditors or similar Person charged with the reorganization
or liquidation of its business appointed for it, provided that a Bankruptcy Event shall not result
solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such
Person by a governmental authority or instrumentality thereof, provided, further, that such
ownership interest does not result in or provide such Person with immunity from the jurisdiction of
courts within the United States or from the enforcement of judgments or writs of attachment on its
assets or permit such Person (or such governmental authority or instrumentality) to reject,
repudiate, disavow or disaffirm any contracts or agreements made by such Person.




          “Base Rate” means, for any day, a rate per annum equal to the highest of (i) the Prime Rate
for such day, (ii) the sum of 0.50% plus the Federal Funds Rate for such day, and (iii) the sum of
1.00% plus the Adjusted Interbank Offered Rate for such day for deposits having a one month
maturity. Each change in the Base Rate shall become effective automatically as of the opening of
business on the date of such change in the Base Rate, without prior written notice to Borrower or
Banks.




          “Base Rate Loan” means a Committed Loan to be made by a Bank as a Base Rate Loan in accordance
with the provisions of this Agreement.




          “Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section
3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise
contributed to by any member of the ERISA Group.




          “Borrower” means AMB Property, L.P., a Delaware limited partnership.




          “Borrower’s Share” means Borrower’s and General Partner’s direct or indirect share of a
Consolidated Subsidiary, a Joint Venture Subsidiary or an Investment Affiliate as reasonably
determined by Borrower based upon Borrower’s and General Partner’s economic interest (whether
direct or indirect) of such Consolidated Subsidiary, Joint Venture Subsidiary or Investment
Affiliate, as of the date of such determination.








6









 








          “Borrowing” has the meaning set forth in Section 1.3.




          “Business Day” means any day except a Saturday, Sunday or other day on which commercial banks
in New York City are authorized by law to close.




          “Capital Leases” as applied to any Person, means any lease of any property (whether real,
personal or mixed) by that Person as lessee which, in conformity with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.




          “Capital Funding Loan” shall have the meaning set forth in Section 5.14 hereof.




          “Cash or Cash Equivalents” shall mean (a) cash; (b) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by an agency thereof and
backed by the full faith and credit of the United States, in each case maturing within one (1) year
after the date of acquisition thereof; (c) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within ninety (90) days after the date of acquisition thereof and,
at the time of acquisition, having one of the two highest ratings obtainable from any two of S&P,
Moody’s or Fitch (or, if at any time no two of the foregoing shall be rating such obligations, then
from such other nationally recognized rating services acceptable to Administrative Agent ); (d)
domestic corporate bonds, other than domestic corporate bonds issued by Borrower or any of its
Affiliates, maturing no more than two (2) years after the date of acquisition thereof and, at the
time of acquisition, having a rating of at least A or the equivalent from any two (2) of S&P,
Moody’s or Fitch (or, if at any time no two of the foregoing shall be rating such obligations, then
from such other nationally recognized rating services acceptable to Administrative Agent); (e)
variable-rate domestic corporate notes or medium term corporate notes, other than notes issued by
Borrower or any of its Affiliates, maturing or resetting no more than one (1) year after the date
of acquisition thereof and having a rating of at least AA or the equivalent from two of S&P,
Moody’s or Fitch (or, if at any time no two of the foregoing shall be rating such obligations, then
from such other nationally recognized rating services acceptable to Administrative Agent); (f)
commercial paper (foreign and domestic) or master notes, other than commercial paper or master
notes issued by Borrower or any of its Affiliates, and, at the time of acquisition, having a
long-term rating of at least A or the equivalent from S&P, Moody’s or Fitch and having a short-term
rating of at least A-1 and P-1 from S&P and Moody’s, respectively (or, if at any time neither S&P
nor Moody’s shall be rating such obligations, then the highest rating from such other nationally
recognized rating services acceptable to Administrative Agent); (g) domestic and foreign
certificates of deposit or domestic time deposits or foreign deposits or bankers’ acceptances
(foreign or domestic) in Dollars, Hong Kong Dollars, Singapore Dollars or an Alternate Currency
that are issued by a bank (I) which has, at the time of acquisition, a long-term rating of at least
A or the equivalent from S&P, Moody’s or Fitch and (II) if a domestic bank, which is a member of
the Federal Deposit Insurance Corporation; (h) overnight securities repurchase agreements, or
reverse repurchase agreements secured by any of the foregoing types of securities or debt
instruments, provided that the collateral supporting such repurchase agreements shall have a value
not less than 101% of the principal amount of the repurchase agreement plus accrued interest; and
(i) money market funds invested in investments substantially all of which consist of the items
described in clauses (a) through (h) foregoing.








7









 








          “Closing Date” means the date on or after the Effective Date on which the conditions set forth
in Section 3.1 shall have been satisfied to the satisfaction of the Administrative Agent.




          “Code” shall mean the Internal Revenue Code of 1986, as amended, and as it may be further
amended from time to time, any successor statutes thereto, and applicable U.S. Department of
Treasury regulations issued pursuant thereto in temporary or final form.




          “Collateralized LC Exposure” has the meaning set forth in Section 9.16(c).




          “Commitment” means, with respect to each Bank, its Dollar Commitment and its Alternate
Currency Commitment, it being understood, however, that the aggregate amount of any Bank’s
Commitment shall be equal only to its Dollar Commitment (and not to the sum of its Dollar
Commitment and Alternate Currency Commitment) and that any amounts borrowed under one commitment
shall reduce, dollar for dollar, the availability under the other).




          “Committed Borrowing” has the meaning set forth in Section 1.3.




          “Committed Loan” means a loan made by a Bank pursuant to Section 2.1, as well as Loans
required to be made by a Bank pursuant to Section 2.17 to reimburse a Fronting Bank for a Letter of
Credit that has been drawn down; provided that, if any such loan or loans (or portions
thereof) are combined or subdivided pursuant to a Notice of Interest Rate Election, the term
“Committed Loan” shall refer to the combined principal amount resulting from such combination or to
each of the separate principal amounts resulting from such subdivision, as the case may be.




          “Consolidated Subsidiary” means at any date any Subsidiary or other entity which is
consolidated with Borrower or General Partner in accordance with GAAP.




          “Consolidated Subsidiary EBITDA” means, with respect to a Consolidated Subsidiary, for any
period, (i) Income from Operations of such Consolidated Subsidiary for such period, plus (ii)
depreciation and amortization expense and other non-cash items deducted in the calculation of
Income from Operations of such Consolidated Subsidiary for such period, plus (iii) Interest Expense
deducted in the calculation of Income from Operations of such Consolidated Subsidiary for such
period, all of the foregoing without duplication.




          “Consolidated Tangible Net Worth” means, at any time, the tangible net worth of Borrower, on a
consolidated basis, determined in accordance with GAAP, plus preferred units issued by Consolidated
Subsidiaries, plus all accumulated depreciation and amortization of Borrower plus Borrower’s Share
of accumulated depreciation and amortization of Investment Affiliates, deducted, in either case,
from earnings in calculating Net Income.




          “Construction Asset” has the meaning set forth in the definition of the term “Construction
Asset Cost”.




          “Construction Asset Cost” shall mean, with respect to a Real Property Asset (or, in the case
of any Real Property Asset to be developed in phases, any phase thereof) in which Development
Activity has begun (as evidenced by obtaining a permit to commence construction






8









 







of the applicable industrial or retail improvements by the applicable governmental authority)
but has not yet been substantially completed (substantial completion shall be deemed to mean not
less than 90% completion, as such completion shall be evidenced by a certificate of occupancy or
its equivalent and the commencement of the payment of rent by tenants of such Real Property Asset
or phase) (a “Construction Asset”), (i) in the case of the development and construction by the
Borrower described in clause (a) of the definition of Development Activity, the aggregate, good
faith estimate of the total cost to be incurred by the Borrower in the construction of such
improvements (including land acquisition costs); (ii) in the case of the development and
construction by a Joint Venture Subsidiary or a Consolidated Subsidiary of the Borrower described
in clause (a) of the definition of Development Activity, an amount equal to Borrower’s Share of the
aggregate, good faith estimate of the total cost to be incurred by such Joint Venture Subsidiary or
such Consolidated Subsidiary, as applicable, in the construction of such improvements (including
land acquisition costs); (iii) in the case of the financing of any development and construction by
the Borrower, the amount the Borrower has committed to fund to pay the cost to complete such
development and construction, (iv) in the case of the financing of any development and construction
by a Joint Venture Subsidiary or a Consolidated Subsidiary of the Borrower, an amount equal to
Borrower’s Share of the amount such Joint Venture Subsidiary or such Consolidated Subsidiary, as
applicable, has committed to fund to pay the cost to complete such development and construction;
(v) in the case of the incurrence of any Contingent Obligations in connection with any development
and construction by the Borrower, the amount of such Contingent Obligation of the Borrower, (vi) in
the case of the incurrence of any Contingent Obligations in connection with any development and
construction by a Joint Venture Subsidiary or a Consolidated Subsidiary of the Borrower, an amount
equal to Borrower’s Share of the amount of such Contingent Obligation of such Joint Venture
Subsidiary or such Consolidated Subsidiary, as applicable.




          “Contingent Obligation” as to any Person means, without duplication, (i) any contingent
obligation of such Person required to be shown on such Person’s balance sheet in accordance with
GAAP, and (ii) any obligation required to be disclosed in the footnotes to such Person’s financial
statements, guaranteeing partially or in whole any Non-Recourse Indebtedness, lease, dividend or
other obligation, exclusive of contractual indemnities (including, without limitation, any
indemnity or price-adjustment provision relating to the purchase or sale of securities or other
assets) and guarantees of non-monetary obligations (other than guarantees of completion) which have
not yet been called on or quantified, of such Person or of any other Person. The amount of any
Contingent Obligation described in clause (ii) shall be deemed to be (a) with respect to a guaranty
of interest or interest and principal, or operating income guaranty, the Net Present Value of the
sum of all payments required to be made thereunder (which in the case of an operating income
guaranty shall be deemed to be equal to the debt service for the note secured thereby), calculated
at the Applicable Interest Rate, through (i) in the case of an interest or interest and principal
guaranty, the stated date of maturity of the obligation (and commencing on the date interest could
first be payable thereunder), or (ii) in the case of an operating income guaranty, the date through
which such guaranty will remain in effect, and (b) with respect to all guarantees not covered by
the preceding clause (a), an amount equal to the stated or determinable amount of the primary
obligation in respect of which such guaranty is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is required to perform
thereunder) as recorded on the balance sheet and on the footnotes to the most recent financial
statements of Borrower required to be delivered pursuant to Section






9









 







5.1 hereof. Notwithstanding anything contained herein to the contrary, guarantees of
completion shall not be deemed to be Contingent Obligations unless and until a claim for payment or
performance has been made thereunder, at which time any such guaranty of completion shall be deemed
to be a Contingent Obligation in an amount equal to any such claim. Subject to the preceding
sentence, (i) in the case of a joint and several guaranty given by such Person and another Person
(but only to the extent such guaranty is recourse, directly or indirectly to Borrower), the amount
of the guaranty shall be deemed to be 100% thereof unless and only to the extent that such other
Person has delivered Cash or Cash Equivalents to secure all or any part of such Person’s guaranteed
obligations, (ii) in the case of joint and several guarantees given by a Person in whom Borrower
owns an interest (which guarantees are non-recourse to Borrower), to the extent the guarantees, in
the aggregate, exceed 15% of Total Asset Value, the amount which is the lesser of (x) the amount in
excess of 15% or (y) the amount of Borrower’s interest therein shall be deemed to be a Contingent
Obligation of Borrower, and (iii) in the case of a guaranty (whether or not joint and several) of
an obligation otherwise constituting Indebtedness of such Person, the amount of such guaranty shall
be deemed to be only that amount in excess of the amount of the obligation constituting
Indebtedness of such Person. Notwithstanding anything contained herein to the contrary,
“Contingent Obligations” shall be deemed not to include guarantees of Unused Commitments or of
construction loans to the extent the same have not been drawn. All matters constituting
“Contingent Obligations” shall be calculated without duplication.




          “Convertible Securities” means evidences of shares of stock, limited or general partnership
interests or other ownership interests, warrants, options, or other rights or securities which are
convertible into or exchangeable for, with or without payment of additional consideration, common
shares of beneficial interest of General Partner or partnership interests of Borrower, as the case
may be, either immediately or upon the arrival of a specified date or the happening of a specified
event.




          “Covenant Modification” has the meaning set forth in Section 9.5(b).




          “Credit Agreements” has the meaning set forth in Section 9.5(b).




          “Credit Party” means the Administrative Agent, the Fronting Bank, the Swingline Lender or any
other Bank.




          “Credit Rating” means the rating assigned by the Rating Agencies to Borrower’s senior
unsecured long term indebtedness.




          “Debt Restructuring” means a restatement of, or material change in, the amortization or other
financial terms of any Indebtedness of General Partner, the Borrower or any Subsidiary or
Investment Affiliate.




          “Debt Service” means, for any period and without duplication, Interest Expense for such period
plus scheduled principal amortization (excluding Balloon Payments) for such period on all Balance
Sheet Indebtedness of Borrower and General Partner, plus Borrower’s Share of scheduled principal
amortization (excluding Balloon Payments) for such period on all Balance Sheet Indebtedness of
Investment Affiliates and Consolidated Subsidiaries.








10









 








          “Default” means any condition or event which with the giving of notice or lapse of time or
both would, unless cured or waived, become an Event of Default.




          “Default Rate” has the meaning set forth in Section 2.8(d).




          “Defaulting Lender” means any Bank that (a) has failed, within three (3) Business Days of the
date required to be funded or paid, to (i) fund any portion of its Loans, or (ii) fund any portion
of its participations in Letters of Credit or Swingline Loans, (b) has failed, within five (5)
Business Days of the date on which demand for payment is made to pay over to any Credit Party any
other amount required to be paid by it hereunder, unless, in the case of clauses (i) and (ii)
above, such Bank notifies the Administrative Agent in writing that such failure is the result of
such Bank’s good faith determination that a condition precedent to funding (specifically identified
and including the particular default, if any) has not been satisfied, (c) has notified the Borrower
or any Credit Party in writing that it does not intend to comply with any of its funding
obligations under this Agreement (unless such writing indicates that such position is based on such
Bank’s good faith determination that a condition precedent (specifically identified and including
the particular default, if any) to funding a loan under this Agreement cannot be satisfied), (d)
has failed, within three Business Days after request by a Credit Party, acting in good faith and
based on a reasonable belief that such Person will fail to comply with its funding obligations, to
provide a confirmation in writing from such Bank that it will comply with its obligations to fund
prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans
under this Agreement, provided that such Bank shall cease to be a Defaulting Lender pursuant to
this clause (d) upon such Credit Party’s receipt of such confirmation, or (e) has become the
subject of a Bankruptcy Event.




          “Designated Lender” means a special purpose corporation that (i) shall have become a party to
this Agreement pursuant to Section 9.6(d), and (ii) is not otherwise a Bank.




          “Designated Lender Notes” means promissory notes of the Borrower, substantially in the form of
Exhibit A-1 hereto, evidencing the obligation of the Borrower to repay Money Market Loans made by
Designated Lenders, and “Designated Lender Note” means any one of such promissory notes issued
under Section 9.6(d) hereof.




          “Designating Lender” shall have the meaning set forth in Section 9.6(d) hereof.




          “Designation Agreement” means a designation agreement in substantially the form of Exhibit G
attached hereto, entered into by a Bank and a Designated Lender and accepted by the Administrative
Agent.




          “Development Activity” means (a) the development and construction or redevelopment of
industrial or retail facilities by the Borrower or any of its Consolidated Subsidiaries or Joint
Venture Subsidiaries excluding Unimproved Assets, (b) the financing by the Borrower or any of its
Consolidated Subsidiaries or Joint Venture Subsidiaries of any such development or construction or
redevelopment and (c) the incurrence by the Borrower or any of its Consolidated Subsidiaries or
Joint Venture Subsidiaries of any Contingent Obligations in connection with such development or
construction or redevelopment (other than purchase






11









 







contracts for Real Property Assets which are not payable until after completion of development
or construction).




          “Development Profits” means, for any period, the net gain or loss recognized from the
disposition or contribution of value-added conversion projects and build-to-suit, redevelopment and
development projects as reported net of estimated taxes, when applicable, in the “development
profits, net of taxes”, line within the Borrower’s statements of operations for such period.




          “Dollar Commitment” means with respect to each Bank, the amount set forth under the name of
such Bank on the signature pages hereof as its commitment for Loans and Letters of Credit in
Dollars (and, for each Bank which is an Assignee, the amount set forth in the Transfer Supplement
entered into pursuant to Section 9.6(c) as the Assignee’s Dollar Commitment), as such amount may be
reduced from time to time pursuant to Section 2.11(e) or in connection with an assignment to an
Assignee, and as such amount may be increased in connection with an assignment from an Assignor or
pursuant to Section 9.19. The initial aggregate amount of the Banks’ Dollar Commitments is
$600,000,000.




          “Dollar Equivalent Amount” shall mean (i) with respect to any amount of Alternate Currency on
any day, the equivalent amount in Dollars of such amount of Alternate Currency as determined by the
Administrative Agent using the applicable Exchange Rate on such day and (ii) with respect to any
amount of Dollars, such amount.




          “Dollar Sublimit” means, an amount of Loans and Letters of Credit denominated in Dollars equal
to Six Hundred Million Dollars ($600,000,000), as the same may be decreased in accordance with the
provisions of this Agreement or increased pursuant to Section 9.19.




          “Dollars” and “$” means the lawful money of the United States.




          “Domestic Lending Office” means, as to each Bank, its office located at its address in the
United States set forth in its Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Domestic Lending Office) or such other office as such Bank may hereafter
designate as its Domestic Lending Office by notice to the Borrower and the Administrative Agent.




          “EBITDA” means, for any period (i) Borrower’s and General Partner’s Income from Operations for
such period, plus (ii) Borrower’s and General Partner’s depreciation and amortization expense and
other non-cash items deducted in the calculation of Income from Operations for such period, plus
(iii) Borrower’s and General Partner’s Interest Expense deducted in the calculation of Income from
Operations for such period, minus (iv) the Consolidated Subsidiary EBITDA for each Consolidated
Subsidiary, plus (v) Borrower’s Share of the Consolidated Subsidiary EBITDA for each Consolidated
Subsidiary, plus (vi) Borrower’s Share of the Investment Affiliate EBITDA for each Investment
Affiliate, all of the foregoing without duplication.




          “Effective Date” means the date this Agreement becomes effective in accordance with Section
9.9.








12









 








          “Environmental Affiliate” means any partnership, joint venture, trust or corporation in which
an equity interest is owned directly or indirectly by the Borrower and, as a result of the
ownership of such equity interest, Borrower may have recourse liability for Environmental Claims
against such partnership, joint venture, trust or corporation (or the property thereof).




          “Environmental Claim” means, with respect to any Person, any notice, claim, demand or similar
communication (written or oral) by any other Person alleging potential liability of such Person for
investigatory costs, cleanup costs, governmental response costs, natural resources damage, property
damages, personal injuries, fines or penalties arising out of, based on or resulting from (i) the
presence, or release into the environment, of any Materials of Environmental Concern at any
location, whether or not owned by such Person or (ii) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law, in each case (with respect to both (i)
and (ii) above) as to which there is a reasonable possibility of an adverse determination with
respect thereto and which, if adversely determined, would have a Material Adverse Effect on the
Borrower.




          “Environmental Laws” means any and all federal, state, and local statutes, laws, judicial
decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits,
concessions, grants, licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions, discharges or releases
of Materials of Environmental Concern into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Materials of
Environmental Concern or the clean up or other remediation thereof.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.




          “ERISA Group” means the Borrower, any Subsidiary, General Partner and all members of a
controlled group of corporations and all trades or businesses (whether or not incorporated) under
common control and all members of an “affiliated service group” which, together with the Borrower,
any Subsidiary or General Partner, are treated as a single employer under Section 414 of the Code
or Section 4001(b)(1) of ERISA.




          “Euro-Dollar Borrowing” has the meaning set forth in Section 1.3.




          “Euro-Dollar Business Day” means any Business Day on which banks are open for dealings in
Dollar deposits in the London interbank market and any day on which commercial banks are open for
foreign exchange business in (i) London, or (ii) if such reference relates to the date on which any
amount is to be paid or made available in an Alternate Currency, the principal financial center in
the country of such Alternate Currency.




          “Euro-Dollar Lending Office” means, as to each Bank, its office, branch or affiliate located
at its address set forth in its Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Euro-Dollar Lending Office) or such other office, branch or






13









 







affiliate of such Bank as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Borrower and the Administrative Agent.




          “Euro-Dollar Loan” means a Committed Loan to be made by a Bank as a Euro-Dollar Loan in
accordance with the applicable Notice of Borrowing. Euro-Dollar Loans may be denominated in a
currency included in the definition of Alternate Currency or in Dollars.




          “Euro-Dollar Reference Bank” means the principal London offices of the Administrative Agent.




          “Euro-Dollar Reserve Percentage” means for any day that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) under Regulation D, as Regulation D may be amended, modified or
supplemented, for determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in respect of
“Eurocurrency liabilities” (or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Euro-Dollar Loans is determined or any category
of extensions of credit or other assets which includes loans by a non-United States office of any
Bank to United States residents). The Adjusted Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar Reserve Percentage.




          “European Term Credit Agreement” has the meaning set forth in Section 9.5(b).




          “Event of Default” has the meaning set forth in Section 6.1.




          “Exchange Rate” means, (i) the rate appearing on the relevant display page (as determined by
the Administrative Agent) on the Reuters Monitor Money Rates Service for the sale of the
applicable Alternate Currency for Dollars in the London foreign exchange market at approximately
11:00 a.m. (London time) for delivery two (2) Euro-Dollar Business Days later or if not available
(ii) the spot selling rate at which the Administrative Agent offers to sell such Alternate Currency
for Dollars in the London foreign exchange market at approximately 11:00 a.m. (London time) for
delivery two Euro-Dollar Business Days later; provided, however, that if, at the
time of any such determination, no such spot rate can reasonably be quoted, the Administrative
Agent may use any reasonable method (including obtaining quotes from two (2) or more market makers
for the applicable Alternate Currency) as it deems applicable to determine such rate, and such
determination shall be conclusive absent manifest error.




          “Existing Revolving Credit Agreement” means the Third Amended and Restated Revolving Credit
Agreement, dated as of June 1, 2006, among the Borrower, JPMorgan Chase Bank, N.A., and the banks
party thereto.




          “Extension Date” has the meaning set forth in Section 2.10(b).




          “Extension Fee” has the meaning set forth in Section 2.9(d).




          “Extension Notice” has the meaning set forth in Section 2.10(b).








14









 








          “Facility Amount” has the meaning set forth in Section 2.1.




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




          “Federal Reserve Board” means the Board of Governors of the Federal Reserve System as
constituted from time to time.




          “FFO” means “funds from operations,” defined to mean, without duplication for any period,
Income from Operations, plus (i) Borrower’s Share of Income from Operations of any Investment
Affiliate (plus Borrower’s Share of real estate depreciation and amortization expenses of
Investment Affiliates), plus (ii) real estate depreciation and amortization expense for such
period.




          “Financing Partnerships” means any Subsidiary which is wholly-owned, directly or indirectly,
by Borrower or by Borrower and General Partner, with General Partner holding, directly or
indirectly other than through its interest in Borrower, no more than a 2% economic interest in such
Subsidiary.




          “First Tier JV” has the meaning set forth in Section 5.14.




          “Fiscal Quarter” means a fiscal quarter of a Fiscal Year.




          “Fiscal Year” means the fiscal year of Borrower and General Partner.




          “Fitch” means Fitch, Inc., or any successor thereto.




          “Fixed Charges” for any Fiscal Quarter period means the sum of (i) Debt Service for such
period, (ii) dividends on preferred units payable by Borrower for such period, and (iii)
distributions made by Borrower in such period to Guarantor for the purpose of paying dividends on
preferred shares in Guarantor. If any of the foregoing Indebtedness is subject to an interest rate
cap agreement purchased by the Borrower, the Guarantor or a Consolidated Subsidiary, the interest
rate shall be assumed to be the lower of the actual interest payable on such Indebtedness or the
capped rate of such interest rate cap agreement. In no event shall any dividends payable on the
Guarantor’s or any Consolidated Subsidiary’s common stock be included in Fixed Charges.




          “Fixed Rate Borrowing” has the meaning set forth in Section 1.3.




          “Fixed Rate Indebtedness” means all Indebtedness which accrues interest at a fixed rate.








15









 








          “Floating Rate Indebtedness” means all Indebtedness which is not Fixed Rate Indebtedness and
which is not a Contingent Obligation or an Unused Commitment.




          “FMV Cap Rate” means seven and three-quarters percent (7.75%).




          “Foreign Property Interests” means Borrower’s or General Partner’s interest, without
duplication, in Properties located outside the United States.




          “Fronting Bank” shall mean JPMorgan Chase Bank, N.A.




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




          “General Partner” means AMB Property Corporation, a Maryland corporation qualified as a real
estate investment trust and the sole general partner of Borrower.




          “Group of Loans” means, at any time, a group of Loans consisting of (i) all Committed Loans
which are Base Rate Loans at such time, or (ii) all Euro-Dollar Loans in the same currency having
the same Interest Period at such time; provided that, if a Committed Loan of any particular
Bank is converted to or made as a Base Rate Loan pursuant to Section 8.2 or 8.5, such Loan shall be
included in the same Group or Groups of Loans from time to time as it would have been in if it had
not been so converted or made.




          “Guarantor” shall mean AMB Property Corporation, a Maryland corporation qualified as a real
estate investment trust.




          “Guaranty” shall mean that certain Guaranty Agreement, dated as of the date hereof, by General
Partner, as guarantor, to Administrative Agent, for the benefit of the Banks.




          “IBOR Auction” means a solicitation of Money Market Quotes setting forth Money Market Margins
based on the Interbank Offered Rate pursuant to Section 2.4.




          “Income from Operations” means, for any period, Net Income before (A) the deduction of (i)
Taxes, (ii) minority interests, (iii) losses on sales of operating Real Property Assets, debt
restructurings or write-ups or forgiveness of indebtedness, (iv) losses from extraordinary items,
(v) payment of preferred dividends, calculated in conformity with GAAP, (vi) an adjustment to
exclude the straight-lining of rents, (vii) non-cash losses from foreign currency fluctuations, and
(viii) costs and expenses incurred during such period with respect to acquisitions consummated
during such period, and (B) the addition of (i) gains on sales of operating Real Property Assets,
debt restructurings or write-ups or forgiveness of indebtedness, (ii) gains from extraordinary
items, and (iii) non-cash gains from foreign currency fluctuations.




          “Indebtedness” as applied to any Person (and without duplication), means (a) all indebtedness,
obligations or other liabilities of such Person for borrowed money or for the deferred purchase
price of property or services, including all liabilities of such Person evidenced






16









 







by Securities or other similar instruments, (b) all Contingent Obligations of such Person, (c)
all indebtedness obligations or other liabilities of such Person or others secured by a Lien on any
asset of such Person, in excess of 2.5% of Total Liabilities in the aggregate, whether or not such
indebtedness, obligations or liabilities are assumed by, or are a personal liability of such
Person, and (d) all other items which, in accordance with GAAP, would be included as liabilities on
the liability side of, or in the footnotes to the balance sheet of such Person, exclusive, however,
of all dividends and distributions declared but not yet paid. Notwithstanding the foregoing,
whenever the term “Indebtedness” is used with respect to Borrower or General Partner without
expressly stating that such Indebtedness is to be determined on a consolidated basis, such
“Indebtedness” shall only include Borrower’s Share of any Indebtedness of a Consolidated
Subsidiary.




          “Indemnitee” has the meaning set forth in Section 9.3(b).




          “Interbank Offered Rate” applicable to any Interest Period means the average (rounded upward,
if necessary, to the next higher 1/16 of 1%) of the respective rates per annum at which deposits in
Dollars or Alternate Currency, as applicable, are offered to the Euro-Dollar Reference Bank in the
interbank market at approximately 11:00 a.m. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Borrowing or Group of Loans or portion thereof to be converted into or continued as
Euro-Dollar Loans to which such Interest Period is to apply and for a period of time comparable to
such Interest Period.




          “Interest Expense” means, for any period and without duplication, total interest expense,
whether paid, accrued or capitalized, determined in accordance with GAAP, with respect to Balance
Sheet Indebtedness of Borrower and General Partner, plus Borrower’s Share of accrued, paid or
capitalized interest with respect to any Balance Sheet Indebtedness of Investment Affiliates and
Consolidated Subsidiaries (in each case, including, without limitation, the interest component of
Capital Leases but excluding interest expense covered by an interest reserve established under a
loan facility such as capitalized construction interest provided for in a construction loan, and
non-cash components of interest expense (including, but not limited to, the amortization of
financing costs and debt premiums)).




          “Interest Period” means: (1) with respect to each Euro-Dollar Borrowing, the period
commencing on the date of such Borrowing specified in the Notice of Borrowing or on the date
specified in the applicable Notice of Interest Rate Election and ending 1, 2, 3, 6, or if available
from all the Banks, 12 months thereafter (or a period less than 1 month with the reasonable
approval of Administrative Agent, unless any Bank has previously advised Administrative Agent and
Borrower that it is unable to enter into Interbank Offered Rate Contracts for an Interest Period of
the same duration) as the Borrower may elect in the applicable Notice of Borrowing or Notice of
Interest Rate Election; provided, that:





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



17









 






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




     (c) no Interest Period may end later than the Maturity Date.


(2) intentionally omitted.



(3) with respect to each Money Market IBOR Loan, the period commencing on the date of borrowing
specified in the applicable Money Market Quote Request and ending 1, 2 or 3 months thereafter;
provided that:





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




     (b) any Interest Period which begins on the last Euro-Dollar Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and




     (c) no Interest Period may end later than the Maturity Date.


(4) with respect to each Money Market Absolute Rate Loan, the period commencing on the date of
borrowing specified in the applicable Money Market Quote Request and ending such number of days
thereafter (but not less than 14 days or more than 90 days) as the Borrower may elect in accordance
with Section 2.4; provided that:





     (a) any Interest Period which would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day; and




     (b) no Interest Period may end later than the Maturity Date.



          “Interest Rate Contracts” means, collectively, interest rate swap, collar, cap or similar
agreements providing interest rate protection.




          “Intermediate Tier Entity” has the meaning set forth in Section 5.14.




          “International FinCo” has the meaning set forth in Section 5.14.




          “Intracompany Indebtedness” means Indebtedness whose obligor and obligee are each the
Borrower, the Guarantor or a Consolidated Subsidiary.




          “Investment Affiliate” means any Person in whom Guarantor or Borrower holds an equity
interest, directly or indirectly, whose financial results are not consolidated under






18









 







GAAP with the financial results of Guarantor or Borrower on the consolidated financial
statements of General Partner and Borrower.




          “Investment Affiliate EBITDA” means, for any period (i) Income from Operations of an
Investment Affiliate for such period, plus (ii) depreciation and amortization expense and other
non-cash items deducted in the calculation of Income from Operations of such Investment Affiliate
for such period, plus (iii) Interest Expense deducted in the calculation of Income from Operations
of such Investment Affiliate for such period, all of the foregoing without duplication.




          “Investment Grade Rating” means a rating for a Person’s senior long-term unsecured debt of
BBB- or better from S&P or a rating of Baa3 or better from Moody’s. In the event that Borrower
receives Credit Ratings only from S&P and Moody’s, and such Credit Ratings are not equivalent, the
higher of such two (2) Credit Ratings shall be used to determine whether an Investment Grade Rating
was achieved. In the event that Borrower receives more than two (2) Credit Ratings, and such
Credit Ratings are not all equivalent, the highest Credit Rating shall be used to determine whether
an Investment Grade Rating was achieved, provided that said highest rating is from S&P or Moody’s;
provided, further, that if the highest rating is not from S&P or Moody’s, then the
highest Credit Rating from either S&P or Moody’s shall be used to determine whether an Investment
Grade Rating was achieved.




          “Investment Mortgages” means mortgages securing indebtedness with respect to Real Property
Assets directly or indirectly owed to Borrower or any of its Subsidiaries, including, without
limitation, certificates of interest in real estate mortgage investment conduits.




          “Invitation for Money Market Quotes” has the meaning set forth in Section 2.4(c).




          “Joint Bookrunners” means J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, in their capacity as Joint Bookrunners hereunder.




          “Joint Lead Arrangers” means J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, in their capacity as Joint Lead Arrangers hereunder.




          “Joint Lenders” has the meaning set forth in Section 5.14.




          “Joint Venture Interests” means partnership, joint venture, membership or other equity
interests issued by any Person which is an Investment Affiliate that is not a Subsidiary, is not
consolidated with Borrower and is not controlled by a Joint Venture Parent.




          “Joint Venture Parent” means Borrower or one or more Financing Partnerships of Borrower which
directly or indirectly owns any interest in a Joint Venture Subsidiary.




          “Joint Venture Subsidiary” means any entity (other than a Financing Partnership) in which (i)
a Joint Venture Parent owns at least 50% of the economic interests and (ii) the sale or financing
of any Property owned by such Joint Venture Subsidiary is substantially controlled by a Joint
Venture Parent, subject to customary provisions set forth in the organizational documents of such
Joint Venture Subsidiary with respect to refinancings or rights of first refusal granted to other
members of such Joint Venture Subsidiary. For purposes of the preceding






19









 







sentence, the sale or financing of a Property owned by a Joint Venture Subsidiary shall be
deemed to be substantially controlled by a Joint Venture Parent, if such Joint Venture Parent has
the ability to exercise a buy-sell right in the event of a disagreement regarding the sale or
financing of such Property.




          “JV Non-US Property Owner” has the meaning set forth in Section 5.14.




          “LC Exposure” has the meaning set forth in Section 9.16(c).




          “Letter(s) of Credit” has the meaning provided in Section 2.2(b).




          “Letter of Credit Collateral” has the meaning provided in Section 6.4.




          “Letter of Credit Collateral Account” has the meaning provided in Section 6.4.




          “Letter of Credit Documents” has the meaning provided in Section 2.17.




          “Letter of Credit Usage” means at any time the sum of (i) the aggregate maximum amount
available to be drawn under the Letters of Credit then outstanding, assuming compliance with all
requirements for drawing referred to therein, and (ii) the aggregate amount of the Borrower’s
unpaid obligations under this Agreement in respect of the Letters of Credit.




          “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind, or any other type of preferential arrangement, in each case that has
the effect of creating a security interest, in respect of such asset. For the purposes of this
Agreement, Borrower or any Consolidated Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement relating to such
asset.




          “Loan” means a Base Rate Loan, a Euro-Dollar Loan, a Money Market Loan or a Swingline Loan and
“Loans” means Base Rate Loans, Euro-Dollar Loans, Money Market Loans or Swingline Loans or any
combination of the foregoing.




          “Loan Documents” means this Agreement, the Notes, the Guaranty, the Letter(s) of Credit and
the Letter of Credit Documents.




          “Majority Banks” means at any time Banks having at least 51% of the aggregate amount of
Commitments, or if the Commitments shall have been terminated, holding Notes evidencing at least
51% of the aggregate unpaid principal amount of the Loans, (provided, that in the case of
Swingline Loans, the amount of each Bank’s funded participation interest in such Swingline Loans
shall be considered for purposes hereof as if it were a direct loan and not a participation
interest, and the aggregate amount of Swingline Loans owing to the Swingline Lender shall be
considered for purposes hereof as reduced by the amount of such funded participation interests).




          “Mandatory Borrowing” has the meaning set forth in Section 2.3(b)(iii).








20









 








          “Material Acquisition” means, during any twelve (12) month period, the acquisition of one or
more Real Property Assets or portfolios of Real Property Assets or operating businesses, each of
which Real Property Assets, portfolio of Real Property Assets or operating businesses, as the case
may be, individually had a purchase price of not less than 3% of Total Asset Value and all of which
Real Property Assets, portfolio of Real Property Assets or operating businesses collectively had an
aggregate purchase price of 7.5% or more of Total Asset Value.




          “Material Adverse Effect” means an effect resulting from any circumstance or event or series
of circumstances or events, of whatever nature (but excluding general economic conditions), which
does or could reasonably be expected to, materially and adversely impair (i) the ability of the
Borrower and its Consolidated Subsidiaries, taken as a whole, to perform their respective
obligations under the Loan Documents, or (ii) the ability of Administrative Agent or the Banks to
enforce the Loan Documents.




          “Materials of Environmental Concern” means and includes pollutants, contaminants, hazardous
wastes, toxic and hazardous substances, asbestos, lead, petroleum and petroleum by-products.




          “Maturity Date” shall mean the date when all of the Obligations hereunder shall be due and
payable which shall be March 1, 2014, unless otherwise extended in accordance with Section 2.10(b)
or accelerated pursuant to the terms hereof.




          “Money Market Absolute Rate” has the meaning set forth in Section 2.4(d)(2).




          “Money Market Absolute Rate Loan” means a loan to be made by a Bank pursuant to an Absolute
Rate Auction.




          “Money Market Borrowing” has the meaning set forth in Section 1.3.




          “Money Market IBOR Loan” means a loan to be made by a Bank pursuant to a IBOR Auction
(including, without limitation, such a loan bearing interest at the Base Rate pursuant to Article
VIII).




          “Money Market Lending Office” means, as to each Bank, its Domestic Lending Office or such
other office, branch or affiliate of such Bank as it may hereafter designate as its Money Market
Lending Office by notice to the Borrower and the Administrative Agent; provided that any
Bank may from time to time by notice to the Borrower and the Administrative Agent designate
separate Money Market Lending Offices for its Money Market IBOR Loans, on the one hand, and its
Money Market Absolute Rate Loans, on the other hand, in which case all references herein to the
Money Market Lending Office of such Bank shall be deemed to refer to either or both of such
offices, as the context may require.




          “Money Market Loan” means a Money Market IBOR Loan or a Money Market Absolute Rate Loan.




          “Money Market Margin” has the meaning set forth in Section 2.4(d)(2).








21









 








          “Money Market Quote” means an offer by a Bank to make a Money Market Loan in accordance with
Section 2.4.




          “Money Market Quote Request” has the meaning set forth in Section 2.4(b).




          “Moody’s” means Moody’s Investors Services, Inc. or any successor thereto.




          “Multiemployer Plan” means at any time an employee pension benefit plan within the meaning of
Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an
obligation to make contributions or has at any time after September 25, 1980 made contributions or
has been required to make contributions (for these purposes any Person which ceased to be a member
of the ERISA Group after September 25, 1980 will be treated as a member of the ERISA Group).




          “Negative Pledge” means, with respect to any Property, any covenant, condition, or other
restriction entered into by the owner of such Property or directly binding on such Property which
prohibits or limits the creation or assumption of any Lien upon such Property to secure any or all
of the Obligations; provided, however, that such term shall not include (a) any covenant, condition
or restriction contained in any ground lease from a governmental entity, and (b) financial
covenants given for the benefit of any Person that may be violated by the granting of any Lien on
any Property to secure any or all of the Obligations.




          “Net Income” means, for any period, net income as calculated in conformity with GAAP.




          “Net Offering Proceeds” means all cash or other assets received by General Partner or Borrower
as a result of the issuance or sale of common shares of beneficial interest, preferred shares of
beneficial interest, partnership interests, preferred partnership units, limited liability company
interests, Convertible Securities or other ownership or equity interests in General Partner or
Borrower less customary costs and discounts of issuance paid by General Partner or Borrower, as the
case may be.




          “Net Price” means, with respect to the purchase of any Property, without duplication, (i) the
aggregate purchase price paid as cash consideration for such purchase (without adjustment for
prorations), including, without limitation, the principal amount of any note received or other
deferred payment to be made in connection with such purchase (except as described in clause (ii)
below) and the value of any non-cash consideration delivered in connection with such purchase
(including, without limitation, shares or preferred shares of beneficial interest in General
Partner and OP Units or Preferred OP Units (as defined in Borrower’s partnership agreement)) plus
(ii) reasonable costs of sale and non-recurring taxes paid or payable in connection with such
purchase or sale.




          “Net Present Value” shall mean, as to a specified or ascertainable dollar amount, the present
value, as of the date of calculation of any such amount using a discount rate equal to the Base
Rate in effect as of the date of such calculation.




          “Non-Recourse Indebtedness” means Indebtedness with respect to which recourse for payment is
limited to (i) specific Property or Properties encumbered by a Lien securing such






22









 







Indebtedness and/or another Person so long as there is no recourse to Borrower or the General
Partner, or (ii) any Consolidated Subsidiary or Investment Affiliate (provided that if an entity is
a partnership, there is no recourse to Borrower or General Partner as a general partner of such
partnership); provided, however, that personal recourse of Borrower or General Partner for any such
Indebtedness for fraud, misrepresentation, misapplication of cash, waste, environmental claims and
liabilities and other circumstances customarily excluded by institutional lenders from exculpation
provisions and/or included in separate indemnification agreements in non-recourse financing of real
estate shall not, by itself, prevent such Indebtedness from being characterized as Non-Recourse
Indebtedness. For purposes of the foregoing and for the avoidance of doubt, (a) if the Indebtedness
is partially guaranteed by the Borrower or the General Partner, then the portion of such
Indebtedness that is not so guaranteed shall still be Non-Recourse Indebtedness if it otherwise
satisfies the requirements in this definition, and (b) if the liability of Borrower or the General
Partner under any such guaranty is itself limited to specific Property or Properties, then such
Indebtedness shall still be Non-Recourse Indebtedness if such Indebtedness otherwise satisfies the
requirements of this definition.




          “Non-US Property” has the meaning set forth in Section 5.14.




          “Non-US Property Owners” has the meaning set forth in Section 5.14.




          “Notes” means the promissory notes of the Borrower and each Qualified Borrower, substantially
in the form of Exhibit A and Exhibit A-1 hereto, respectively, evidencing the obligation of the
Borrower to repay the Loans, and “Note” means any one of such promissory notes issued hereunder.




          “Notice of Borrowing” means a notice from Borrower in accordance with Section 2.2 or Section
2.3(b)(i).




          “Notice of Interest Rate Election” has the meaning set forth in Section 2.7.




          “Obligations” means all obligations, liabilities, indemnity obligations and Indebtedness of
every nature of the Borrower, from time to time owing to Administrative Agent or any Bank under or
in connection with this Agreement or any other Loan Document.




          “Parent” means, with respect to any Bank, any Person as to which such Bank is, directly or
indirectly, a subsidiary.




          “Participant” has the meaning set forth in Section 9.6(b).




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




          “Permitted Holdings” means Unimproved Assets, interests in Taxable REIT Subsidiaries and
Investment Mortgages, but only to the extent permitted in Section 5.8.




          “Permitted Liens” means:








23









 









     a. Liens for Taxes, assessments or other governmental charges not yet due and payable
or which are being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted in accordance with the terms hereof;




     b. statutory liens of carriers, warehousemen, mechanics, materialmen and other similar
liens imposed by law, which are incurred in the ordinary course of business for sums not
more than sixty (60) days delinquent or which are being contested in good faith in
accordance with the terms hereof;




     c. deposits made in the ordinary course of business in connection with worker’s
compensation, unemployment insurance and other social security legislation or to secure
liabilities to insurance carriers;




     d. utility deposits and other deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, purchase contracts, construction
contracts, governmental contracts, statutory obligations, surety bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business;




     e. Liens for purchase money obligations for equipment (or Liens to secure Indebtedness
incurred within 90 days after the purchase of any equipment to pay all or a portion of the
purchase price thereof or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of any such equipment, or extensions, renewals, or replacements of
any of the foregoing for the same or lesser amount); provided that (i) the
Indebtedness secured by any such Lien does not exceed the purchase price of such equipment,
(ii) any such Lien encumbers only the asset so purchased and the proceeds upon sale,
disposition, loss or destruction thereof, and (iii) such Lien, after giving effect to the
Indebtedness secured thereby, does not give rise to an Event of Default;




     f. easements, rights-of-way, zoning restrictions, other similar charges or encumbrances
and all other items listed on Schedule B to Borrower’s owner’s title insurance policies,
except in connection with any Indebtedness, for any of Borrower’s Real Property Assets, so
long as the foregoing do not interfere in any material respect with the use or ordinary
conduct of the business of Borrower and do not diminish in any material respect the value of
the Property to which it is attached or for which it is listed;




     g. (I) Liens and judgments which have been or will be bonded (and the Lien on any cash
or securities serving as security for such bond) or released of record within thirty (30)
days after the date such Lien or judgment is entered or filed against General Partner,
Borrower, or any Subsidiary, or (II) Liens which are being contested in good faith by
appropriate proceedings for review and in respect of which there shall have been secured a
subsisting stay of execution pending such appeal or proceedings and as to which the subject
asset is not at risk of forfeiture;




     h. Liens on Property of the Borrower or its Subsidiaries (other than Unencumbered
Property) securing Indebtedness which may be incurred or remain outstanding without
resulting in an Event of Default hereunder; and



24









 






     i. Liens in favor of Borrower, General Partner or a Consolidated Subsidiary against any
asset of any Consolidated Subsidiary or any Investment Affiliate.



          “Person” means an individual, a corporation, a partnership, a limited liability company, an
association, a trust or any other entity or organization, including, without limitation, a
government or political subdivision or an agency or instrumentality thereof.




          “Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan)
which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code and either (i) is maintained, or contributed to, by any member of the ERISA Group for
employees of any member of the ERISA Group or (ii) has at any time within the preceding five years
been maintained, or contributed to, by any Person which was at such time a member of the ERISA
Group for employees of any Person which was at such time a member of the ERISA Group.




          “Preferred Stock Subsidiary” means a corporation organized with two classes of stock,
consisting of one class of voting common shares and one class of non-voting preferred shares, all
of whose preferred shares are owned by a Person seeking to be treated as a real estate investment
trust under the Code (or an operating partnership of which such Person is general partner) and all
of the common shares of which are owned by individuals or entities who are neither owned nor
controlled by such Person (but which individuals may be, and which entities may be owned and
controlled by, officers, directors or employees of such Person), and to which such Person (or an
operating partnership of which such Person is general partner) has contributed at least ninety-five
percent (95%) or more of the equity capital raised by such corporation in exchange for the issuance
of such corporation’s shares.




          “Prime Rate” means the rate of interest publicly announced by the Administrative Agent from
time to time as its Prime Rate (it being understood that the same shall not necessarily be the best
rate offered by the Administrative Agent to customers).




          “principal financial center” means, when used in reference to an Alternate Currency, (a) in
the case of British Pounds Sterling, London, England, (b) in the case of Euros, Frankfurt am Main,
Germany, (c) in the case of Yen, Tokyo, Japan, and (d) in the case of Canadian Dollars, Toronto,
Canada.




          “Pro Rata Share” means, with respect to any Bank, a fraction (expressed as a percentage), the
numerator of which shall be the amount of such Bank’s Commitment and the denominator of which shall
be the aggregate amount of all of the Banks’ Commitments, as adjusted from time to time in
accordance with the provisions of this Agreement.




          “Property” means, with respect to any Person, any real or personal property, building,
facility, structure, equipment or unit, or other asset owned by such Person, including, without
limitation, operating businesses




          “Qualified Borrower” means a foreign or domestic limited partnership, limited liability
company or other business entity duly organized under the laws of its jurisdiction of formation of
which the Borrower (or a Person that is owned and controlled by the Borrower) is the sole general
partner or managing member, the Indebtedness of which, in all cases, can be






25









 







guaranteed by the Borrower pursuant to the provisions of the Borrower’s Agreement of Limited
Partnership.




          “Qualified Borrower Guaranty” means a full and unconditional guaranty of payment in the form
of Exhibit H attached hereto, enforceable against Borrower for the payment of a Qualified
Borrower’s debt or obligation to the Banks.




          “Qualified Institution” means a Bank, or one or more banks, finance companies, insurance or
other financial institutions which (A) has (or, in the case of a bank which is a subsidiary, such
bank’s parent has) a rating of its senior debt obligations of not less than Baa-1 by Moody’s or a
comparable rating by a rating agency acceptable to Syndication Agent and (B) has total assets in
excess of Ten Billion Dollars ($10,000,000,000).




          “Rating Agencies” means, collectively, S&P, Moody’s and Fitch.




          “Real Property Assets” means as to any Person as of any time, the real property assets
(including, without limitation, interests in participating mortgages in which such Person’s
interest therein is characterized as equity according to GAAP) owned directly or indirectly by such
Person at such time.




          “Recourse Debt” shall mean Indebtedness that is not Non-Recourse Indebtedness.




          “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as
in effect from time to time




          “REIT” means a real estate investment trust, as defined under Section 856 of the Code.




          “Requisite Lenders” has the meaning set forth in Section 9.5(b).




          “Revised Adjusted EBITDA” means, for any period, Adjusted EBITDA for such period, less (a)
interest income, plus (b) actual general and administrative expenses for such period to the extent
deducted in calculating Adjusted EBITDA; for purposes of calculating Revised Adjusted EBITDA, “Net
Income” shall be deemed to include as to any Real Property Asset with respect to which a tenant
received any free rent during such period, the amount of such free rent as if the same had been
paid in cash by such tenant.




          “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.,
or any successor thereto.




          “Second Tier Funding Loan” has the meaning set forth in Section 5.14.




          “Secured Debt” means Indebtedness (but excluding Intracompany Indebtedness), the payment of
which is secured by a Lien (other than a Permitted Lien, except for those Permitted Liens described
in clause (h) of the definition thereof) on any Property owned or leased by General Partner or
Borrower plus Borrower’s Share of Indebtedness (but excluding Intracompany Indebtedness), the
payment of which is secured by a Lien (other than a Permitted






26









 







Lien, except for those Permitted Liens described in clause (h) of the definition thereof) on
any Property owned or leased by any Investment Affiliate or any Consolidated Subsidiary.




          “Securities” means any stock, partnership interests, shares, shares of beneficial interest,
voting trust certificates, bonds, debentures, notes or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as
“securities,” or any certificates of interest, shares, or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire
any of the foregoing, but shall not include Joint Venture Interests, any interest in any Subsidiary
of General Partner or Borrower, any interest in a Taxable REIT Subsidiary, any Indebtedness which
would not be required to be included on the liabilities side of the balance sheet of General
Partner or Borrower on a consolidated basis in accordance with GAAP, any Cash or Cash Equivalents
or any evidence of the Obligations.




          “Sharing Event” means (i) the occurrence of an Event of Default with respect to the Borrower
or General Partner under clauses (f) or (g) of Section 6.1,or (ii) the acceleration of the Loans
pursuant to Article VI.




          “Solvent” means, with respect to any Person, that the fair saleable value of such Person’s
assets exceeds the Indebtedness of such Person.




          “Stabilized Occupancy Rate” means, as of any date for any Real Property Asset, that the
percentage of the rentable area of such Real Property Asset leased to and occupied by tenants or
other persons pursuant to bona fide leases, licenses, or other agreements requiring current rent or
other similar payments who are currently paying such rent or other similar payments, is at least
ninety percent (90%).




          “Subsidiary” means any corporation or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of directors or other
persons performing similar functions are at the time directly or indirectly owned by the Borrower
or General Partner.




          “Subsidiary Operating Partnership” shall mean a limited liability company or limited
partnership in which the only interest therein not owned (directly or indirectly) by Borrower
and/or General Partner shall be preference interests or preference units, respectively.




          “Substantially Controlled by Borrower” means, with respect to any action, that such action is
substantially controlled by Borrower as contemplated under Section 5.14.




          “Swingline Borrowing” has the meaning set forth in Section 1.3.




          “Swingline Commitment” has the meaning set forth in Section 2.3(a).




          “Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as Swingline Lender
hereunder, and its permitted successors in such capacity in accordance with the terms of this
Agreement.








27









 








          “Swingline Loan” means a loan made by the Swingline Lender pursuant to Section 2.3.




          “Syndication Agent” means Bank of America, N.A., in its capacity as syndication agent
hereunder and its permitted successors in such capacity in accordance with the terms of this
Agreement.




          “Taxable REIT Subsidiary” means any corporation (other than a REIT) in which General Partner
directly or indirectly owns stock and General Partner and such corporation jointly elect that such
corporation shall be treated as a taxable REIT subsidiary of General Partner under and pursuant to
Section 856 of the Code.




          “Taxes” means all federal, state, local and foreign income and gross receipts taxes.




          “Term” has the meaning set forth in Section 2.10.




          “Termination Event” shall mean (i) a “reportable event”, as such term is described in Section
4043 of ERISA (other than a “reportable event” not subject to the provision for 30-day notice to
the PBGC), or an event described in Section 4062(e) of ERISA, (ii) the withdrawal by any member of
the ERISA Group from a Multiemployer Plan during a plan year in which it is a “substantial
employer” (as defined in Section 4001(a)(2) of ERISA), or the incurrence of liability by any member
of the ERISA Group under Section 4064 of ERISA upon the termination of a Multiemployer Plan, (iii)
the filing of a notice of intent to terminate any Plan under Section 4041 of ERISA, other than in a
standard termination within the meaning of Section 4041 of ERISA, or the treatment of a Plan
amendment as a distress termination under Section 4041 of ERISA, (iv) the institution by the PBGC
of proceedings to terminate, impose liability (other than for premiums under Section 4007 of ERISA)
in respect of, or cause a trustee to be appointed to administer, any Plan or (v) any other event or
condition that might reasonably constitute grounds for the termination of, or the appointment of a
trustee to administer, any Plan or the imposition of any liability or encumbrance or Lien on the
Real Property Assets or any member of the ERISA Group under ERISA or the Code.




          “Tiered Non-US Property” has the meaning set forth in Section 5.14.




          “Total Asset Value” means, with respect to Borrower and without duplication,




          (i) the quotient obtained by dividing (a) (1) Revised Adjusted EBITDA for the previous four
(4) Fiscal Quarters most recently ended, minus (2) for any Property (other than Construction Assets
or Unimproved Assets) which was acquired by Borrower, a Consolidated Subsidiary or an Investment
Affiliate in any of the previous four (4) Fiscal Quarters, the Revised Adjusted EBITDA attributable
to such Property to the extent the same was included in the Revised Adjusted EBITDA of Borrower in
clause (1), minus (3) for any Transition Property, the Revised Adjusted EBITDA attributable to such
Real Property Asset to the extent the same was included in the Revised Adjusted EBITDA of Borrower
in clause (1), minus (4) Asset Management Fees and Development Profits for the previous four (4)
Fiscal Quarters most recently ended to the extent the same was included in the Revised Adjusted
EBITDA of Borrower in clause (1), by (b) the FMV Cap Rate,




28









 








          plus (ii) for any Property which was acquired by Borrower in any of the previous four (4)
Fiscal Quarters, the sum of (x) the Net Price of the Property paid by Borrower for such Property
and (y) the cost of capital expenditures actually incurred in connection with such Property,




          plus (iii) for any Property which was acquired by an Investment Affiliate or a Consolidated
Subsidiary in any of the previous four (4) Fiscal Quarters, the sum of (x) Borrower’s Share of the
Net Price of the Property paid by such Investment Affiliate or by such Consolidated Subsidiary, as
applicable, for such Property, and (y) Borrower’s share of the cost of capital expenditures
actually incurred in connection with such Property,




          plus (iv) for any Transition Property, the quotient obtained by dividing (a) the Revised
Adjusted EBITDA attributable to such Property for the previous four (4) Fiscal Quarters most
recently ended, by (b) the FMV Cap Rate, but not less than the sum of (1) the book value of any
such Transition Property of the Borrower plus the allowance for accumulated depreciation for such
asset on that date, as determined in accordance with GAAP, and (2) Borrower’s Share of the book
value of any such Transition Property of any Investment Affiliate or any Consolidated Subsidiary of
the Borrower plus the allowance for accumulated depreciation for such asset on that date, as
determined in accordance with GAAP,




          plus (v) the quotient obtained by dividing (a) Asset Management Fees for the previous four (4)
Fiscal Quarters most recently ended by (b) twelve and one half percent (12 1/2%),




          plus (vi) the quotient obtained by dividing (a) Development Profits for the previous four (4)
Fiscal Quarters most recently ended by (b) twelve and one half percent (12 1/2%), but not more than
7.5% of Total Asset Value,




          plus (vii) the value of any Cash or Cash Equivalent owned by Borrower (including Cash or Cash
Equivalents held in restricted Section 1031 accounts under the control of Borrower or any
Consolidated Subsidiary), and Borrower’s Share of any Cash or Cash Equivalent owned by any
Consolidated Subsidiary or Investment Affiliate (including Cash or Cash Equivalents held in
restricted Section 1031 accounts under the control of Borrower or any Consolidated Subsidiary),




          plus (viii) the book value of any Construction Assets, Unimproved Assets and any other
tangible assets of Borrower (including foreign currency exchange agreements, to the extent such
agreements are material and are reported or are required under GAAP to be reported by the Borrower
in its financial statements) plus the allowance for accumulated depreciation for such asset on that
date, as determined in accordance with GAAP,




          plus (ix) Borrower’s Share of the book value of any Construction Assets, Unimproved Assets and
any other tangible assets of any Investment Affiliate or any Consolidated Subsidiary plus the
allowance for accumulated depreciation for such asset on that date, as determined in accordance
with GAAP. For purposes of the foregoing, a Real Property Asset which was a Construction Asset
will be deemed to have been acquired on the date it ceases to be a Construction Asset.








29









 








          “Total Liabilities” means, as of the date of determination and without duplication, all
Balance Sheet Indebtedness of Borrower and General Partner, plus Borrower’s Share of all Balance
Sheet Indebtedness of Investment Affiliates and Consolidated Subsidiaries.




          “Transition Property” means, as of any date, (a) any Real Property Asset that at any time
during the previous four (4) Fiscal Quarters most recently ended did not have a Stabilized
Occupancy Rate, whether or not such Real Property Asset at any time prior to the date of
determination had reached a Stabilized Occupancy Rate, or (b) any Real Property Asset which never
reached a Stabilized Occupancy Rate after it ceased to be a Construction Asset.




          “Unencumbered Net Operating Cash Flow” means, as of any date of determination, the
Unencumbered Net Operating Income for the previous four (4) Fiscal Quarters; provided that , as to
any Unencumbered Property acquired (or, in the case of any Unencumbered Property that ceased to be
a Construction Asset during such period, deemed acquired) during such period, Unencumbered Net
Operating Cash Flow shall be adjusted by deducting the actual Unencumbered Net Operating Income for
such Unencumbered Property during such four (4) Fiscal Quarters and by adding the product of the
Unencumbered Net Operating Income for such Property for the most recent Fiscal Quarter multiplied
by 4.




          “Unencumbered Net Operating Income” means, for any period, for all Unencumbered Properties,
the aggregate revenues from each such Unencumbered Property for such period (including, without
limitation, lease termination fees appropriately amortized, but excluding deferred rents
receivable) or in the case of any Unencumbered Property owned by a Joint Venture Subsidiary,
Borrower’s Share thereof, less the cost of maintaining such Unencumbered Properties (including,
without limitation, taxes, insurance, repairs and maintenance, but excluding depreciation,
amortization, interest costs and capital expenditures) or in the case of any Unencumbered Property
owned by a Joint Venture Subsidiary, Borrower’s Share thereof (provided that as to any Unencumbered
Property acquired during such period, only revenues and property level expenses attributable to
such period occurring after such acquisition shall be included), as adjusted (i) for capital
expenditure reserves at the rate of Ten Cents ($0.10, or in the case of any Unencumbered Property
owned by a Joint Venture Subsidiary, Borrower’s Share of Ten Cents ($0.10)) per square foot per
annum of space leased as of the applicable date of determination (provided that, as to any
Unencumbered Property acquired during such period, such amount per square foot shall be pro-rated
for the period of ownership), and (ii) to exclude the effects of straight-lining of rents.




          “Unencumbered Property” means any retail or industrial Real Property Asset (including
Unimproved Assets and Construction Assets, but excluding interests in participating mortgages in
which such Person’s interest therein is characterized as equity according to GAAP) from time to
time which (i) is an operating Real Property Asset which is owned directly or indirectly 100% in
fee (or ground leasehold) by Borrower, a Financing Partnership or a Joint Venture Subsidiary, (ii)
is not subject (nor are any equity interests in such Property that are owned directly or indirectly
by Borrower, General Partner or any Joint Venture Parent subject) to a Lien which secures
Indebtedness of any Person other than Permitted Liens, (iii) is not subject (nor are any equity
interests in such Property that are owned directly or indirectly by Borrower, General Partner or
any Joint Venture Parent subject) to any Negative Pledge (provided that a financial covenant given
for the benefit of any Person that may be violated by the granting of any






30









 







Lien on any Property to secure any or all of the Obligations shall not be deemed a Negative
Pledge), and (iv) if owned by a domestic Financing Partnership or Joint Venture Subsidiary (other
than a Financing Partnership or Joint Venture Subsidiary that invests primarily with foreign
currencies or primarily in foreign countries), such Financing Partnership or Joint Venture
Subsidiary shall not be the borrower or guarantor of any Unsecured Debt other than the Loans.




          “Unimproved Assets” means Real Property Assets (or, in the case of any Real Property Assets to
be developed in phases, any phase thereof) containing no material improvements other than
infrastructure improvements such as roads, utility feeder lines and the like.




          “United States” means the United States of America, including the fifty states and the
District of Columbia.




          “Unrestricted Cash or Cash Equivalents” means Cash or Cash Equivalents owned by Borrower, and
Borrower’s Share of any Cash or Cash Equivalent owned by any Consolidated Subsidiary or Investment
Affiliate, that are not subject to any pledge, lien or control agreement, less (i) $35,000,000,
(ii) amounts normally and customarily set aside by Borrower for operating, capital and interest
reserves, and (iii) amounts placed with third parties as deposits or security for contractual
obligations.




          “Unsecured Debt” means the amount of Indebtedness (excluding Intracompany Indebtedness) for
borrowed money of General Partner, Borrower, any Financing Partnership, any Preferred Stock
Subsidiary or Joint Venture Subsidiary and which is not Secured Debt, including, without
limitation, the amount of all then outstanding Loans.




          “Unsecured Debt Yield” has the meaning set forth in Section 5.8(j).




          “Unsecured Interest Expense” means, as of any date of determination, for the previous four (4)
Fiscal Quarters, the Interest Expense paid, accrued or capitalized on Unsecured Debt, provided,
however, in the case of any Preferred Stock Subsidiary, Joint Venture Subsidiary or Consolidated
Subsidiary only an amount equal to the Borrower’s Share of any such Interest Expense on Unsecured
Debt of such entity shall be included in Unsecured Interest Expense.




          “Unused Commitments” shall mean an amount equal to all unadvanced funds (other than unadvanced
funds in connection with any construction loan) which any third party is obligated to advance to
Borrower or another Person or otherwise pursuant to any loan document, written instrument or
otherwise.




          “Yen Revolving Credit Agreement” has the meaning set forth in Section 9.5(b).




          Section 1.2 Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP applied on a basis consistent (except
for changes concurred in by the Borrower’s independent public accountants) with the most recent
audited consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Administrative Agent; provided that for purposes of
references to the financial





31









 







results and information of “General Partner, on a consolidated basis,”
General Partner shall be deemed to own one hundred percent (100%) of the partnership interests in
Borrower; and provided further that, if the Borrower notifies the Administrative
Agent that the Borrower wishes to amend any covenant in Article V to eliminate the effect of any
change in GAAP on the operation of such covenant (or if the Administrative Agent notifies the
Borrower that the Majority Banks wish to amend Article V for such purpose), then the Borrower’s
compliance with such covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is withdrawn or such
covenant is amended in a manner reasonably satisfactory to the Borrower and the Majority Banks.




          Section 1.3 Types of Borrowings. The term “Borrowing” denotes the aggregation of Loans of one or more Banks to be made to the
Borrower pursuant to Article 2 on the same date, all of which Loans are of the same type (subject
to Article 8) and, except in the case of Base Rate Loans and Swingline Loans, have the same initial
Interest Period. Borrowings are classified for purposes of this Agreement either by reference to
the pricing of Loans comprising such Borrowing (e.g., a “Fixed Rate Borrowing” is a Euro-Dollar
Borrowing or a Money Market Borrowing (excluding any such Borrowing consisting of Money Market IBOR
Loans bearing interest at the Base Rate pursuant to Article VIII); a “Euro-Dollar Borrowing” is a
Borrowing comprised of Euro-Dollar Loans; and an “Alternate Currency Borrowing” is a Borrowing
comprised of Euro-Dollar Loans denominated in an Alternate Currency) or by reference to the
provisions of Article 2 under which participation therein is determined (i.e., a “Committed
Borrowing” is a Borrowing under Section 2.1 in which all Banks participate in proportion to their
Commitments, while a “Money Market Borrowing” is a Borrowing under Section 2.4 in which a Bank’s
share is determined on the basis of its bid in accordance therewith, and a “Swingline Borrowing” is
a Borrowing under Section 2.3 in which only the Swingline Lender participates (subject to the
provisions of said Section 2.3)).




ARTICLE II




THE CREDITS



          Section 2.1 Commitments to Lend. Each Bank severally agrees, on the terms and conditions set forth in this Agreement, to make
Loans to the Borrower and to Qualified Borrowers and participate in Letters of Credit issued by the
Fronting Bank on behalf of the Borrower and Qualified Borrowers pursuant to this Article from time
to time during the term hereof in amounts such that the aggregate principal Dollar Equivalent
Amount of Committed Loans by such Bank at any one time outstanding plus such Bank’s Pro Rata Share
of Swingline Loans outstanding together with such Bank’s Pro Rata Share of the Letter of Credit
Usage at such time shall not exceed the Dollar Equivalent Amount of its Commitment (provided, in
the case of any Loan in an Alternate Currency, (i) such Alternate Currency is readily available to
such Banks and is freely transferable and convertible to Dollars, (ii) the Reuters Monitor Money
Rates Service (or any successor thereto) reports a London Interbank Offered Rate for such Alternate
Currency relating to the applicable Interest Period, and
(iii) Borrower shall then have an Investment Grade Rating from either S&P or Moody’s). Each
Borrowing outstanding under this Section 2.1 shall be in an aggregate principal Dollar Equivalent
Amount of $5,000,000 (or, with respect to an Alternate Currency Borrowing only, the Dollar
Equivalent Amount of





32









 







$3,000,000), or an integral multiple of the Dollar Equivalent Amount of
$1,000,000 in excess thereof (except that any such Borrowing may be in the aggregate amount
available in accordance with Section 3.2(b), or in any amount required to reimburse the Fronting
Bank for any drawing under any Letter of Credit or to repay the Swingline Lender the amount of any
Swingline Loan) and, other than with respect to Money Market Loans and Swingline Loans, shall be
made from the several Banks ratably in proportion to their respective Commitments. Subject to the
provisions of Section 9.19 hereof, in no event shall (i) the aggregate Dollar Equivalent Amount of
Loans outstanding at any time, plus outstanding Dollar Equivalent Amount of the Letter of Credit
Usage, exceed $600,000,000 (the “Facility Amount”), or (ii) the aggregate Dollar Equivalent
Amount of Loans denominated in an Alternate Currency plus the outstanding aggregate Dollar
Equivalent Amount of the Letter of Credit Usage for Alternate Currency Letters of Credit exceed the
Alternate Currency Sublimit, with, in the case of both clauses (i) and (ii), Loans denominated in
Alternate Currencies and Letter of Credit Usage for Alternate Currency Letters of Credit being
marked to market monthly on the last Business Day of each month and immediately prior to each
Borrowing. Notwithstanding any other provision of this Agreement to the contrary, it is understood
and agreed that if (i) the Alternate Currency Commitments shall have been drawn to such extent that
the remaining Dollar Commitments shall be insufficient to permit any portion of a Borrowing
denominated in Dollars to be funded based upon the Pro Rata Shares of each of the Banks, such
Borrowing may still be made, with any such portion to be funded, pro rata, by any Banks that shall
not have participated in the Alternate Currency Commitments, and (ii) if the Dollar Commitments
shall have been drawn to such extent that the remaining Alternate Currency Commitments shall be
insufficient to permit any portion of a Borrowing denominated in an Alternate Currency to be funded
based upon the Pro Rata Shares of each of the Banks with an Alternate Currency Commitment, then, to
the extent necessary to enable such Banks with Alternate Currency Commitments to fund such portion,
such Borrowing shall also include a Borrowing in Dollars, pro rata, from the Banks do not have
Alternate Currency Commitments, which Borrowing in Dollars will be used to repay, pro rata, Loans
in Dollars of such Banks with Alternate Currency Commitments as designated by the Borrower in its
notice of Borrowing. Subject to the limitations set forth herein, any amounts repaid may be
reborrowed.




          Section 2.2 Notice of Borrowing. (a) With respect to any Committed Borrowing, the Borrower shall give Administrative Agent
notice not later than 1:00 P.M. (New York City or London time, as applicable) (x) the Business Day
prior to each Base Rate Borrowing, or (y) the third (3rd) Euro-Dollar Business Day
before each Euro-Dollar Borrowing denominated in Dollars, or (z) the fourth (4th)
Euro-Dollar Business Day before each Euro-Dollar Borrowing denominated in an Alternate Currency,
specifying:





(i) the date of such Borrowing, which shall be a Business Day in the case of a Base
Rate Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,




(ii) the aggregate amount of such Borrowing,




(iii) whether the Loans comprising such Borrowing are to be Base Rate Loans or
Euro-Dollar Loans, and if Euro-Dollar Loans are requested other than in Dollars, the
type and amount of the Alternate Currency being requested,



33









 






(iv) in the case of a Euro-Dollar Borrowing, the duration of the Interest Period
applicable thereto, subject to the provisions of the definition of Interest Period,




(v) if such Borrowing is to be made by a Qualified Borrower, the identity of the
Qualified Borrower;




(vi) payment instructions for delivery of such Borrowing; and




(vii) certify that no Default or Event of Default has occurred or is continuing.



          (b) Borrower shall give the Administrative Agent, and the Fronting Bank, written notice in the
event that it desires to have Letters of Credit (each, a “Letter of Credit”) issued, or to
have Letters of Credit issued on behalf of a Subsidiary, hereunder no later than 1:00 P.M. (New
York City or London time, as applicable) at least four (4) Business Days (or, for Alternate
Currency Letters of Credit, four (4) Euro-Dollar Business Days) prior to, but excluding, the date
of such issuance. Each such notice shall specify (i) (a) if Alternate Currency is requested, the
type and individual amount of the Alternate Currency being requested and (b) if Dollars are
requested, the individual amount of each requested Letter of Credit, (ii) the aggregate amount of
the requested Letters of Credit, (iii) the individual amount of each requested Letter of Credit and
the number of Letters of Credit to be issued, (iv) the date of such issuance (which shall be a
Business Day (or, for Alternate Currency Letters of Credit, a Euro-Dollar Business Day)), (v) the
name and address of the beneficiary, (vi) the expiration date of the Letter of Credit (which in no
event shall be later than twelve (12) months after the Maturity Date), (vii) the purpose and
circumstances for which such Letter of Credit is being issued, (viii) the terms upon which each
such Letter of Credit may be drawn down (which terms shall not leave any discretion to Fronting
Bank) and (ix) certify that no Default or Event of Default has occurred or is continuing. Each
such notice may be revoked telephonically by the Borrower to the Fronting Bank and the
Administrative Agent any time prior to the issuance of the Letter of Credit by the Fronting Bank,
provided such revocation is confirmed in writing by the Borrower to the Fronting Bank and the
Administrative Agent within one (1) Business Day (or one (1) Euro-Dollar Business Day in the case
of an Alternate Currency Letter of Credit) by facsimile. Notwithstanding anything contained herein
to the contrary, the Borrower shall complete and deliver to the Fronting Bank any required
documentation in connection with any requested Letter of Credit no later than the second (2nd)
Business Day (or, in the case of Alternate Currency Letters of Credit, the second (2nd)
Euro-Dollar Business Day) prior to the date of issuance thereof. No later than 1:00 P.M. (New York
City or London time, as applicable) on the date that is four (4) Business Days (or, in the case of
Alternate Currency Letters of Credit, four (4) Euro-Dollar Business Days) prior to, but excluding,
the date of issuance, the Borrower shall specify a precise description of the documents and the
verbatim text of any certificate to be presented by the beneficiary of such Letter of Credit, which
if presented by such beneficiary prior to the expiration date of the Letter of Credit would require
the Fronting Bank to make a payment under the Letter of Credit; provided, that Fronting
Bank may, in its reasonable judgment, require changes in any such documents and certificates only
in conformity with changes in customary
and commercially reasonable practice or law and, provided further, that no
Letter of Credit shall require payment against a conforming draft to be made thereunder on the
third Business Day (or, in the case of Alternate Currency Letters of Credit, the third
(3rd) Euro-Dollar Business Day) following the date that such draft is presented if such
presentation is made later than 1:00 P.M.





34









 







New York City or London time, as applicable) (except that
if the beneficiary of any Letter of Credit requests at the time of the issuance of its Letter of
Credit that payment be made on the same Business Day (or, in the case of Alternate Currency Letters
of Credit, Euro-Dollar Business Day) against a conforming draft, such beneficiary shall be entitled
to such a same day draw, provided such draft is presented to the Fronting Bank no later than 1:00
P.M. (New York City or London time, as applicable) and provided further the
Borrower shall have requested to the Fronting Bank and the Administrative Agent that such
beneficiary shall be entitled to a same day draw). In determining whether to pay on such Letter of
Credit, the Fronting Bank shall be responsible only to determine that the documents and
certificates required to be delivered under the Letter of Credit have been delivered and that they
comply on their face with the requirements of that Letter of Credit.




          Section 2.3 Swingline Loan Subfacility.




               (a) Swingline Commitment. Subject to the terms and conditions of this Section 2.3,
the Swingline Lender, in its individual capacity, agrees to make certain revolving credit loans in
Dollars to the Borrower (each a “Swingline Loan” and, collectively, the “Swingline Loans”) from
time to time during the term hereof; provided, however, that the aggregate amount
of Swingline Loans outstanding at any time shall not exceed the lesser of (i) fifteen percent (15%)
of the aggregate Commitments, and (ii) the aggregate Commitments less the sum of (A) all Loans then
outstanding, and (B) the Letter of Credit Usage (the “Swingline Commitment”). Subject to the
limitations set forth herein, any amounts repaid in respect of Swingline Loans may be reborrowed.



               (b) Swingline Borrowings.




(i) Notice of Borrowing. With respect to any Swingline Borrowing, the
Borrower shall give the Swingline Lender and the Administrative Agent notice in
writing which is received by the Swingline Lender and Administrative Agent not later
than 2:00 p.m. (New York City time) on the proposed date of such Swingline Borrowing
(and confirmed by telephone by such time), specifying (A) that a Swingline Borrowing
is being requested, (B) the amount of such Swingline Borrowing, (C) the proposed
date of such Swingline Borrowing, which shall be a Business Day and (D) stating that
no Default or Event of Default has occurred and is continuing both before and after
giving effect to such Swingline Borrowing. Such notice shall be irrevocable.




(ii) Minimum Amounts. Each Swingline Borrowing shall be in a minimum
principal amount of $3,000,000, or an integral multiple of $1,000,000 in excess
thereof.




(iii) Repayment of Swingline Loans. Each Swingline Loan shall be due and
payable on the earliest of (A) 4 Business Days from and including the date of the
applicable Swingline Borrowing, (B) the date of the next Committed Borrowing or (C)
the Maturity Date. If, and to the extent, any Swingline Loans shall be outstanding
on the date of any Committed Borrowing, such Swingline Loans shall first be repaid
from the proceeds of such Committed Borrowing prior to the



35









 







disbursement of the same
to the Borrower. If, and to the extent, a Committed Borrowing is not requested
prior to the Maturity Date or the end of the 4 Business Day period after a Swingline
Borrowing, or unless the Borrower shall have notified the Administrative Agent and
the Swingline Lender prior to 1:00 P.M. (New York City time) on the third
(3rd) Business Day after the Swingline Borrowing that the Borrower
intends to reimburse the Swingline Bank for the amount of such Swingline Borrowing
with funds other than proceeds of the Loans, the Borrower shall be deemed to have
requested a Committed Borrowing comprised entirely of Base Rate Loans in the amount
of the applicable Swingline Loan then outstanding, the proceeds of which shall be
used to repay such Swingline Loan to the Swingline Lender. In addition, if (x) the
Borrower does not repay the Swingline Loan on or prior to the end of such 4 Business
Day period, or (y) a Default or Event of Default shall have occurred during such 4
Business Day period, the Swingline Lender may, at any time, in its sole discretion,
by written notice to the Borrower and the Administrative Agent, demand repayment of
its Swingline Loans by way of a Committed Borrowing, in which case the Borrower
shall be deemed to have requested a Committed Borrowing comprised entirely of Base
Rate Loans in the amount of such Swingline Loans then outstanding, the proceeds of
which shall be used to repay such Swingline Loans to the Swingline Lender. Any
Committed Borrowing which is deemed requested by the Borrower in accordance with
this Section 2.3(b)(iii) is hereinafter referred to as a “Mandatory Borrowing”.
Each Bank hereby irrevocably agrees to make Committed Loans promptly upon receipt of
notice from the Swingline Lender of any such deemed request for a Mandatory
Borrowing in the amount and in the manner specified in the preceding sentences and
on the date such notice is received by such Bank (or the next Business Day if such
notice is received after 12:00 P.M. (New York City time)) notwithstanding (I) the
amount of the Mandatory Borrowing may not comply with the minimum amount of
Committed Borrowings otherwise required hereunder, (II) whether any conditions
specified in Section 3.2 are then satisfied, (III) whether a Default or an Event of
Default then exists, (IV) failure of any such deemed request for a Committed
Borrowing to be made by the time otherwise required in Section 2.1, (V) the date of
such Mandatory Borrowing (provided that such date must be a Business Day), or (VI)
any termination of the Commitments immediately prior to such Mandatory Borrowing or
contemporaneously therewith; provided, however, that no Bank shall
be obligated to make Committed Loans in respect of a Mandatory Borrowing if a
Default or an Event of Default then exists and the applicable Swingline Loan was
made by the Swingline Lender without receipt of a written Notice of Borrowing in the
form specified in subclause (i) above or after
Administrative Agent has delivered a notice of Default or Event of Default which has
not been rescinded.




(iv) Purchase of Participations. In the event that any Mandatory Borrowing
cannot for any reason be made on the date otherwise required above (including,
without limitation , as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower), then each Bank hereby agrees that it
shall forthwith purchase (as of the date the Mandatory Borrowing would



36









 







otherwise
have occurred, but adjusted for any payment received from the Borrower on or after
such date and prior to such purchase) from the Swingline Lender such participations
in the outstanding Swingline Loans as shall be necessary to cause each such Bank to
share in such Swingline Loans ratably based upon its Pro Rata Share (determined
before giving effect to any termination of the Commitments pursuant to Section 6.2),
provided that (A) all interest payable on the Swingline Loans with respect to any
participation shall be for the account of the Swingline Lender until but excluding
the day upon which the Mandatory Borrowing would otherwise have occurred, and (B) in
the event of a delay between the day upon which the Mandatory Borrowing would
otherwise have occurred and the time any purchase of a participation pursuant to
this sentence is actually made, the purchasing Bank shall be required to pay to the
Swingline Lender interest on the principal amount of such participation for each day
from and including the day upon which the Mandatory Borrowing would otherwise have
occurred to but excluding the date of payment for such participation, at the rate
equal to the Federal Funds Rate, for the two (2) Business Days after the date the
Mandatory Borrowing would otherwise have occurred, and thereafter at a rate equal to
the Base Rate. Notwithstanding the foregoing, no Bank shall be obligated to
purchase a participation in any Swingline Loan if a Default or an Event of Default
then exists and such Swingline Loan was made by the Swingline Lender without receipt
of a written Notice of Borrowing in the form specified in subclause (i) above or
after Administrative Agent has delivered a notice of Default or Event of Default
which has not been rescinded.



               (c) Interest Rate. Each Swingline Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Swingline Loan is made until the date it
is repaid, at a rate per annum equal to the Federal Funds Rate plus the Applicable Margin for
Euro-Dollar Loans for such day.



          Section 2.4 Money Market Borrowings.




               (a) The Money Market Option. From time to time during the Term, and provided that at
such time the Borrower maintains a Credit Rating of at least BBB- or Baa3 (or their equivalent)
from either S&P or Moody’s, the Borrower may, as set forth in this Section 2.4, request the Banks
during the Term to make offers to make Money Market Loans in Dollars to the Borrower, not to
exceed, at such time, the lesser of (i) fifty percent (50%) of the aggregate Commitments, and (ii)
the aggregate Commitments less all Loans and Letter of Credit Usage
then outstanding (excluding any Loans or any portion thereof to be repaid from the proceeds of
such Money Market Loans). Subject to the provisions of this Agreement, the Borrower may repay any
outstanding Money Market Loan on any day which is a Business Day (or a Euro-Dollar Business Day in
the case of Money Market IBOR Loans) and any amounts so repaid may be reborrowed, up to the amount
available under this Section 2.4 at the time of such Borrowing, until the Euro-Dollar Business Day
next preceding the Maturity Date. The Banks 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 2.4.



37









 





               (b) Money Market Quote Request. When the Borrower wishes to request offers to make
Money Market Loans under this Section, it shall transmit to the Administrative Agent by telex or
facsimile transmission a Money Market Quote Request substantially in the form of Exhibit B hereto
(a “Money Market Quote Request”) so as to be received not later than 1:00 P.M. (New York City time)
on (x) the fifth Euro-Dollar Business Day prior to, but excluding, the date of Borrowing proposed
therein, in the case of a IBOR Auction or (y) the Business Day immediately preceding the date of
Borrowing proposed therein, in the case of an Absolute Rate Auction (or, in either case, such other
time or date as the Borrower and the Administrative Agent shall have mutually agreed and shall have
notified the Banks not later than the date of the Money Market Quote Request for the first IBOR
Auction or Absolute Rate Auction for which such change is to be effective) specifying:




(i) the proposed date of Borrowing, which shall be a Euro-Dollar Business Day in the
case of an IBOR Auction or a Business Day in the case of an Absolute Rate Auction,




(ii) the aggregate amount of such Borrowing, which shall be $5,000,000 or a larger
multiple of $1,000,000,




(iii) the duration of the Interest Period applicable thereto (which shall not be
less than 14 days or more than 180 days), subject to the provisions of the
definition of Interest Period,




(iv) whether the Money Market Quotes requested are to set forth a Money Market
Margin or a Money Market Absolute Rate,




(v) the aggregate amount of all Money Market Loans then outstanding, and




(vi) certify that no Default or Event of Default has occurred or is continuing.


The Borrower may request offers to make Money Market Loans for more than one Interest Period in a
single Money Market Quote Request. In no event may Borrower give a Money Market Quote Request in
excess of two (2) times in any one month period or within ten (10) days of the giving of any other
Money Market Quote Request.




               (c) Invitation for Money Market Quotes. Promptly upon receipt of a Money Market Quote
Request, the Administrative Agent shall send to the Banks by telex or facsimile transmission an
“Invitation for Money Market Quotes” substantially in the form of Exhibit C hereto, which shall
constitute an invitation by the Borrower to each Bank to submit
Money Market Quotes offering to make the Money Market Loans to which such Money Market Quote
Request relates in accordance with this Section.



               (d) Submission and Contents of Money Market Quotes. (1) Each Bank may submit a Money
Market Quote containing an offer or offers to make Money Market Loans in response to any Invitation
for Money Market Quotes. Each Money Market Quote must comply with the requirements of this
subsection (d) and must be submitted to the Administrative Agent by telex or facsimile transmission
at its offices specified in or pursuant to Section 9.1 not later than (x) 2:00 P.M. (New York City
time) on the fourth Euro-Dollar Business Day prior to,



38









 




but excluding, the proposed date of
Borrowing, in the case of a IBOR Auction or (y) 9:30 A.M. (New York City time) on the proposed date
of Borrowing, in the case of an Absolute Rate Auction (or, in either case, such other time or date
as the Borrower and the Administrative Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote Request for the first IBOR Auction or
Absolute Rate Auction for which such change is to be effective); provided that Money Market
Quotes submitted by the Administrative Agent (or any affiliate of the Administrative Agent) in the
capacity of a Bank may be submitted, and may only be submitted, if the Administrative Agent or such
affiliate notifies the Borrower of the terms of the offer or offers contained therein not later
than (x) one hour prior to the deadline for the other Banks, in the case of an IBOR Auction or (y)
one hour prior to the deadline for the other Banks, in the case of an Absolute Rate Auction.
Subject to Articles 3 and 6, any Money Market Quote so made shall be irrevocable except with the
written consent of the Administrative Agent given on the instructions of the Borrower.





               (2) Each Money Market Quote shall be in substantially the form of Exhibit D
hereto and shall in any case specify:




(i) the proposed date of Borrowing,




(ii) the principal amount of the Money Market Loan for which each such offer is
being made, which principal amount (w) may be greater than or less than the
Commitment of the quoting Bank, (x) must be $5,000,000 or a larger multiple of
$1,000,000, (y) may not exceed the principal amount of Money Market Loans for which
offers were requested and (z) may be subject to an aggregate limitation as to the
principal amount of Money Market Loans for which offers being made by such quoting
Bank may be accepted,




(iii) the Interest Period(s) with respect to which each such offer is being made,




(iv) in the case of an IBOR Auction, the margin above or below the applicable
Interbank Offered Rate (the “Money Market Margin”) offered for each such
Money Market Loan, expressed as a percentage (specified to the nearest 1/10,000th of
1%) to be added to or subtracted from such base rate,




(v) in the case of an Absolute Rate Auction, the rate of interest per annum
(specified to the nearest 1/10,000th of 1%) (the “Money Market Absolute
Rate”) offered for each such Money Market Loan, and




(vi) the identity of the quoting Bank.


A Money Market Quote may set forth up to five separate offers by the quoting Bank with respect to
each Interest Period specified in the related Invitation for Money Market Quotes.





               (3) Any Money Market Quote shall be disregarded if it:




(i) is not substantially in conformity with Exhibit D hereto or does not specify all
of the information required by subsection (d)(2) above;



39









 






(ii) contains qualifying, conditional or similar language (except for an aggregate
limitation as provided in subsection (d)(2)(ii) above);




(iii) proposes terms other than or in addition to those set forth in the applicable
Invitation for Money Market Quotes; or




(iv) arrives after the time set forth in subsection (d)(1).



               (e) Notice to Borrower. The Administrative Agent shall promptly (and in any event
within one (1) Business Day (or Euro-Dollar Business Day in the case of an IBOR Auction) after
receipt thereof) notify the Borrower in writing of the terms (x) of any Money Market Quote
submitted by a Bank that is in accordance with subsection (d) and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money Market Quote submitted by
such Bank with respect to the same Money Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Administrative Agent unless such subsequent Money Market Quote is
submitted solely to correct a manifest error in such former Money Market Quote or modifies the
terms of such previous Money Market Quote to provide terms more favorable to Borrower. The
Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of
Money Market Loans for which offers have been received for each Interest Period specified in the
related Money Market Quote Request, (B) the respective principal amounts and Money Market Margins
or Money Market Absolute Rates, as the case may be, so offered and (C) if applicable, limitations
on the aggregate principal amount of Money Market Loans for which offers in any single Money Market
Quote may be accepted.



               (f) Acceptance and Notice by Borrower. Not later than 1:00 P.M. (New York City time)
on (x) the third Euro-Dollar Business Day prior to, but excluding, the proposed date of Borrowing,
in the case of an IBOR Auction or (y) the proposed date of Borrowing, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first IBOR Auction or Absolute Rate Auction for which such
change is to be effective), the Borrower shall notify the Administrative Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection (e). In the case of
acceptance, such notice (a “Notice of Money Market Borrowing”) shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The Borrower may accept any
Money Market Quote in whole or in part; provided that:




               (1) the aggregate principal amount of each Money Market Borrowing may not
exceed the applicable amount set forth in the related Money Market Quote Request;




               (2) the principal amount of each Money Market Borrowing must be $5,000,000 or a
larger multiple of $1,000,000;



40









 






               (3) acceptance of offers may only be made on the basis of ascending Money
Market Margins or Money Market Absolute Rates, as the case may be; and




               (4) the Borrower may not accept any offer that is described in subsection
(d)(3) or that otherwise fails to comply with the requirements of this Agreement.



               (g) Allocation by Agent. If offers are made by two or more Banks with the same Money
Market Margins or Money Market Absolute Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which such offers are accepted for the related
Interest Period, the principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Banks as nearly as possible (in
multiples of $100,000, as the Administrative Agent may deem appropriate) in proportion to the
aggregate principal amounts of such offers. The Administrative Agent shall promptly (and in any
event within one (1) Business Day (or Euro-Dollar Business Day in the case of an IBOR Auction)
after such offers are accepted) notify the Borrower and each such Bank in writing of any such
allocation of Money Market Loans. Determinations by the Administrative Agent of the allocation of
Money Market Loans shall be conclusive in the absence of manifest error.



               (h) Notwithstanding anything to the contrary contained herein, each Bank shall be required to
fund its Pro Rata Share of Committed Loans in accordance with Section 2.1 hereof despite the fact
that any Bank’s Commitment may have been or may be exceeded as a result of such Bank’s making of
Money Market Loans.



          Section 2.5 Notice to Banks; Funding of Loans.




               (a) Upon receipt of a Notice of Borrowing from Borrower in accordance with Section 2.2 hereof,
the Administrative Agent shall, on the date such Notice of Borrowing is received by the
Administrative Agent, notify each applicable Bank of the contents thereof and of such Bank’s share
of such Borrowing, of the interest rate determined pursuant thereto and the Interest Period(s) (if
different from those requested by the Borrower) and such Notice of Borrowing shall not thereafter
be revocable by the Borrower, unless Borrower shall pay any applicable expenses pursuant to Section
2.14.



               (b) Not later than 2:00 p.m. (New York City time or, in the case of any Alternate Currency
Borrowing, local time to the principal financial center of the Alternate Currency in question) on
the date of each Committed Borrowing (including without limitation
each Mandatory Borrowing) as indicated in the applicable Notice of Borrowing, each Bank shall
(except as provided in subsection (d) of this Section) make available its share of such Committed
Borrowing in Federal funds or the applicable Alternate Currency immediately available in New York,
New York (or, in the case of any Alternate Currency Borrowing, the principal financial center of
the Alternate Currency in question), to the Administrative Agent at its address referred to in
Section 9.1. If the Borrower has requested the issuance of a Letter of Credit, no later than 1:00
p.m. (New York City time) on the date of such issuance as indicated in the notice delivered
pursuant to Section 2.2(b), the Fronting Bank shall issue such Letter of Credit in the amount so



41









 




requested and deliver the same to the Borrower or Qualified Borrower, as applicable, with a copy
thereof to the Administrative Agent. Immediately upon the issuance of each Letter of Credit by the
Fronting Bank, the Fronting Bank shall be deemed to have sold and transferred to each other Bank,
and each such other Bank shall be deemed, and hereby agrees, to have irrevocably and
unconditionally purchased and received from the Fronting Bank, without recourse or warranty, an
undivided interest and a participation in such Letter of Credit, any drawing thereunder, and its
obligation to pay its Pro Rata Share with respect thereto, and any security therefor or guaranty
pertaining thereto, in an amount equal to such Bank’s ratable share thereof. Upon any change in
any of the Commitments in accordance herewith, there shall be an automatic adjustment to such
participations to reflect such changed shares. The Fronting Bank shall have the primary obligation
to fund any and all draws made with respect to such Letter of Credit notwithstanding any failure of
a participating Bank to fund its ratable share of any such draw. The Administrative Agent will
instruct the Fronting Bank to make such Letter of Credit available to the Borrower and the Fronting
Bank shall make such Letter of Credit available to the Borrower or the Qualified Borrower, as the
case may be, at its aforesaid address or at such address in the United States as Borrower shall
request on the date of the Borrowing or, in the case of an Alternate Currency Letter of Credit, at
such address in Europe, the United Kingdom, Japan, Canada or the United States as the Borrower or
the Qualified Borrower, as the case may be, shall request on the date of the Borrowing.




               (c) Not later than 3:00 p.m. (New York City time) on the date of each Swingline Borrowing as
indicated in the applicable Notice of Borrowing, the Swingline Lender shall make available such
Swingline Borrowing in Federal funds immediately available in New York, New York to the
Administrative Agent at its address referred to in Section 9.1.



               (d) Unless the Administrative Agent shall have received notice from a Bank prior to the date
of any Borrowing that such Bank will not make available to the Administrative Agent such Bank’s
share of such Borrowing, the Administrative Agent may assume that such Bank has made such share
available to the Administrative Agent on the date of such Borrowing in accordance with this Section
2.5 and the Administrative Agent may, in reliance upon such assumption, but shall not be obligated
to, make available to the Borrower on such date a corresponding amount on behalf of such Bank. If
and to the extent that such Bank shall not have so made such share available to the Administrative
Agent, such Bank agrees to repay to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Administrative Agent, at the rate of
interest applicable to such Borrowing hereunder. If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such Bank’s Loan included
in such Borrowing for purposes of this Agreement. If such Bank shall not pay to Administrative
Agent such corresponding amount after reasonable attempts are made by Administrative Agent to
collect such amounts from such Bank, Borrower agrees to repay, or cause the applicable Qualified
Borrower to repay, to Administrative Agent forthwith on demand such corresponding amounts together
with interest thereto, for each day from the date such amount is made available to Borrower or such
Qualified Borrower, as the case may be, until the date such amount is repaid to Administrative
Agent, at the interest rate applicable thereto one (1) Business Day after demand. Nothing
contained in this Section 2.5(d) shall be deemed to reduce the Commitment of any Bank or in any way
affect the rights of Borrower with respect to any defaulting Bank or



42









 





Administrative Agent. The
failure of any Bank to make available to the Administrative Agent such Bank’s share of any
Borrowing in accordance with Section 2.5(b) hereof shall not relieve any other Bank of its
obligations to fund its Commitment, in accordance with the provisions hereof.



               (e) Subject to the provisions hereof, the Administrative Agent shall make available each
Borrowing to Borrower or the applicable Qualified Borrower in Federal funds or the applicable
Alternate Currency immediately available in accordance with, and on the date set forth in, the
applicable Notice of Borrowing.



          Section 2.6 Notes.




               (a) The Loans of each Bank shall be evidenced by a single Note made by each Borrower
(including any Qualified Borrower) payable to the order of such Bank for the account of its
Applicable Lending Office.



               (b) Each Bank may, by notice to the Borrower and the Administrative Agent, request that its
Loans of a particular type (including, without limitation, Swingline Loans and Money Market Loans)
be evidenced by a separate Note in an amount equal to the aggregate unpaid principal amount of such
Loans. Any additional costs incurred by the Administrative Agent, the Borrower or the Banks in
connection with preparing such a Note shall be at the sole cost and expense of the Bank requesting
such Note. In the event any Loans evidenced by such a Note are paid in full prior to the Maturity
Date, any such Bank shall return such Note to Borrower. Each such Note shall be in substantially
the form of Exhibit A hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Upon the execution and delivery of any such Note, any existing
Note payable to such Bank shall be replaced or modified accordingly. Each reference in this
Agreement to the “Note” of such Bank shall be deemed to refer to and include any or all of such
Notes, as the context may require.



               (c) Upon receipt of each Bank’s Note pursuant to Section 3.1(a), the Administrative Agent
shall forward such Note to such Bank. Each Bank shall record the date, amount, type and maturity
of each Loan made by it and the date and amount of each payment of principal made by the Borrower
or Qualified Borrower, as the case may be, with respect thereto, and may, if such Bank so elects in
connection with any transfer or enforcement of its Note, endorse on the appropriate schedule
appropriate notations to evidence the foregoing information with respect to each such Loan then
outstanding; provided that the failure of any Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower or
applicable Qualified Borrower hereunder or under the Notes. Each Bank is hereby irrevocably
authorized by the Borrower and each Qualified Borrower so to endorse its Note and to attach to and
make a part of its Note a continuation of any such schedule as and when required.



               (d) The Committed Loans shall mature, and the principal amount thereof shall be due and
payable, on the Maturity Date. The Swingline Loans shall mature, and the principal amount thereof
shall be due and payable, in accordance with Section 2.3(b)(iii).



               (e) Each Money Market Loan included in any Money Market Borrowing shall mature, and the
principal amount thereof shall be due and payable, together with



43









 




accrued interest thereon, on the
earlier to occur of (i) last day of the Interest Period applicable to such Borrowing or (ii) the
Maturity Date.




               (f) There shall be no more than fifteen (15) Euro-Dollar Groups of Loans and no more than ten
(10) Money Market Loans outstanding at any one time.



          Section 2.7 Method of Electing Interest Rates. (a) The Loans included in each Committed Borrowing shall bear interest initially at the type of
rate specified by the Borrower or Qualified Borrower, as the case may be, in the applicable Notice
of Borrowing or as otherwise provided in Section 2.3 with respect to Mandatory Borrowings.
Thereafter, the Borrower or the applicable Qualified Borrower (or the Borrower on behalf of the
applicable Qualified Borrower) may from time to time elect to change or continue the type of
interest rate borne by each Group of Loans (subject in each case to the provisions of Article
VIII), as follows:





(i) if such Loans are Base Rate Loans, the Borrower may elect to convert all or any
portion of such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;




(ii) if such Loans are Euro-Dollar Loans, the Borrower or the applicable Qualified
Borrower (or the Borrower on behalf of the applicable Qualified Borrower) may elect
to convert all or any portion of such Loans to Base Rate Loans and/or elect to
continue all or any portion of such Loans as Euro-Dollar Loans for an additional
Interest Period or additional Interest Periods, in each case effective on the last
day of the then current Interest Period applicable to such Loans, or on such other
date designated by Borrower or the applicable Qualified Borrower (or the Borrower on
behalf of the applicable Qualified Borrower) in the Notice of Interest Rate Election
provided Borrower or the applicable Qualified Borrower (or the Borrower on behalf of
the applicable Qualified Borrower) shall pay any losses pursuant to Section 2.14.


Each such election shall be made by delivering a notice (a “Notice of Interest Rate
Election”) to the Administrative Agent at least three (3) Euro-Dollar Business Days prior to,
but excluding, the effective date of the conversion or continuation selected in such notice. A
Notice of Interest Rate Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (i) such portion is
allocated ratably among the Loans comprising such Group, (ii) the portion to which such Notice
applies, and the remaining portion
to which it does not apply, are each the Dollar Equivalent Amount of $5,000,000 (or, with respect
to Loans denominated in an Alternate Currency only, the Dollar Equivalent Amount of $3,000,000) or
any larger multiple of the Dollar Equivalent Amount of $1,000,000, (iii) there shall be no more
than fifteen (15) Euro-Dollar Groups of Loans outstanding at any time, (iv) no Committed Loan may
be continued as, or converted into, a Euro-Dollar Loan when any Event of Default has occurred and
is continuing, and (v) no Interest Period shall extend beyond the Maturity Date.




               (b) Each Notice of Interest Rate Election shall specify:




(i) the Group of Loans (or portion thereof) to which such notice applies;



44









 






(ii) the date on which the conversion or continuation selected in such notice is to
be effective, which shall comply with the applicable clause of subsection (a) above;




(iii) if the Loans comprising such Group are to be converted, the new type of Loans
and, if such new Loans are Euro-Dollar Loans, the duration of the initial Interest
Period applicable thereto; and




(iv) if such Loans are to be continued as Euro-Dollar Loans for an additional
Interest Period, the duration of such additional Interest Period.


Each Interest Period specified in a Notice of Interest Rate Election shall comply with the
provisions of the definition of Interest Period.




               (c) Upon receipt of a Notice of Interest Rate Election from the Borrower or Qualified Borrower
pursuant to subsection (a) above, the Administrative Agent shall notify each Bank the same day as
it receives such Notice of Interest Rate Election of the contents thereof, the interest rates
determined pursuant thereto and the Interest Periods (if different from those requested by the
Borrower or Qualified Borrower) and such notice shall not thereafter be revocable by the Borrower
or Qualified Borrower. If the Borrower or Qualified Borrower fails to deliver a timely Notice of
Interest Rate Election to the Administrative Agent for any Group of Euro-Dollar Loans, such Loans
in Dollars shall be converted into Base Rate Loans, and Borrower or the applicable Qualified
Borrower shall repay such Loans in Alternate Currencies, on the last day of the then current
Interest Period applicable thereto.



          Section 2.8 Interest Rates.




          (a) Each Base Rate Loan shall bear interest on the outstanding principal amount thereof, for
each day from the date such Loan is made until the date it is repaid or converted into a
Euro-Dollar Loan pursuant to Section 2.7, at a rate per annum equal to sum of the Base Rate plus
the Applicable Margin for Base Rate Loans for such day.




          (b) Each Euro-Dollar Loan shall bear interest on the outstanding principal amount thereof, for
each day during the Interest Period applicable thereto, at a rate per
annum equal to the sum of the Applicable Margin for Euro-Dollar Loans for such day plus the
Adjusted Interbank Offered Rate applicable to such Interest Period.




          (c) Subject to Section 8.1, each Money Market IBOR Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to
the sum of the Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.8(b) as if the related Money Market IBOR Borrowing were a Euro-Dollar Borrowing) plus (or
minus) the Money Market Margin quoted by the Bank making such Loan in accordance with Section 2.4.
Each Money Market Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal to the Money Market
Absolute Rate quoted by the Bank making such Loan in accordance with Section 2.4. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable on demand, for each
day until paid at a rate per





45









 







annum equal to the Base Rate until such failure shall become an Event
of Default and thereafter at a rate per annum equal to the sum of 2% plus the Base Rate for such
day.




               (d) In the event that, and for so long as, any Event of Default shall have occurred and be
continuing, the outstanding principal amount of the Loans, and, to the extent permitted by
applicable law, overdue interest in respect of all Loans, shall bear interest at the annual rate
equal to the sum of the Base Rate and two percent (2%) (the “Default Rate”).



               (e) The Administrative Agent shall determine each interest rate applicable to the Loans
hereunder. The Administrative Agent shall give prompt notice to the Borrower and the Banks of each
rate of interest so determined, and its determination thereof shall be conclusive in the absence of
demonstrable error.



               (f) Intentionally Omitted.



               (g) Interest on all Loans bearing interest at the Base Rate shall be payable on the first
Business Day of each calendar month. Interest on all Loans bearing interest based on the London
Interbank Offered Rate shall be payable on the last Euro-Dollar Business Day of the applicable
Interest Period, but no less frequently than every three months determined on the basis of the
first (1st) day of the Interest Period applicable to the Loan in question.



          Section 2.9 Fees.




          (a) Facility Fee. For the period beginning on the date hereof and ending on the date
the Obligations are paid in full and this Agreement is terminated (the “Facility Fee
Period”), the Borrower shall pay to the Administrative Agent for the account of the Banks
ratably in proportion to their respective Commitments a facility fee on the aggregate Commitments,
irrespective of usage, at the Applicable Fee Percentage. The facility fee shall be payable in
arrears on each January 1, April 1, July 1 and October 1 during the Facility Fee Period.




          (b) Letter of Credit Fee. During the Term and thereafter for so long as any Letter of
Credit shall be outstanding, the Borrower shall pay, or shall cause the applicable Qualified
Borrowers to pay, to the Administrative Agent, for the account of the Banks in
proportion to their interests in respect of issued and undrawn Letters of Credit, a fee (a
“Letter of Credit Fee”) in an amount, provided that no Event of Default shall have occurred
and be continuing, equal to a rate per annum equal to the then percentage per annum of the
Applicable Margin with respect to Euro-Dollar Loans, on the daily average of such issued and
undrawn Letters of Credit, which fee shall be payable, in arrears, on each January 1, April 1, July
1 and October 1 during the Term and thereafter for so long as any Letter of Credit shall be
outstanding. From the occurrence, and during the continuance, of an Event of Default, such fee
shall be increased to be equal to two percent (2%) per annum on the daily average of such issued
and undrawn Letters of Credit. Notwithstanding the foregoing, however, no Letter of Credit Fee
shall be payable on the available amount of any Letter of Credit to the extent that such Letter of
Credit has been cash collateralized solely as a result of the provisions of Section 9.16(c)(ii)
hereof.




               (c) Fronting Bank Fee. The Borrower or the applicable Qualified Borrower shall pay
any Fronting Bank, for its own account, a fee (a “Fronting Bank Fee”) at a



46









 




rate per annum
equal to the greater of (i) 0.25% of the issued and undrawn amount of such Letter of Credit and
(ii) $250, which fee shall be in addition to and not in lieu of, the Letter of Credit Fee. The
Fronting Bank Fee shall be payable in arrears on each January 1, April 1, July 1 and October 1
during the Term.




               (d) Extension Fee. If Borrower elects to extend the term of the Loan in accordance
with Section 2.10(b), the Borrower shall pay to the Administrative Agent, for the account of the
Banks in proportion to their interests, a fee (a “Extension Fee”) in an amount equal to
0.35% of the aggregate Commitments. The Extension Fee shall be paid by Borrower on or before the
Extension Date.



               (e) Fees Non-Refundable. All fees set forth in this Section 2.9 shall be deemed to
have been earned on the date payment is due in accordance with the provisions hereof and shall be
non-refundable. The obligation of the Borrower to pay such fees in accordance with the provisions
hereof shall be binding upon the Borrower and shall inure to the benefit of the Administrative
Agent and the Banks regardless of whether any Loans are actually made.



          Section 2.10 Maturity Date.




               (a) The term (the “Term”) of the Commitments (and each Bank’s obligations to make Loans and to
participate in Letters of Credit hereunder) shall terminate and expire, and the Borrower shall
return or cause to be returned all Letters of Credit to the Fronting Bank on the Maturity Date.
Upon the date of the termination of the Term, any Loans then outstanding (together with accrued
interest thereon and all other Obligations) shall be due and payable on such date.



               (b) Notwithstanding the foregoing, the Borrower may extend the Maturity Date for a period of
one (1) year upon the following terms and conditions: (i) delivery by Borrower of a written notice
to the Administrative Agent (the “Extension Notice”) on or before a date that is not more
than 180 days nor less than 30 days prior to the Maturity Date,
which Extension Notice the Administrative Agent shall promptly deliver to the Banks; (ii) no
Event of Default shall have occurred and be continuing both on the date the Borrower delivers the
Extension Notice and on the original Maturity Date (the “Extension Date”), and (iii)
Borrower shall pay the Extension Fee to Administrative Agent on or before the Extension Date.
Borrower’s delivery of the Extension Notice shall be irrevocable.



          Section 2.11 Optional Prepayments.




          (a) The Borrower may, upon at least one (1) Business Day’s notice to the Administrative Agent,
prepay any Group of Base Rate Loans or any Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.1, in whole at any time, or from time to time in part in amounts aggregating
One Million Dollars ($1,000,000) or more, by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. The Borrower may, from time to time on
any Business Day so long as prior notice is given to the Administrative Agent and Swingline Lender
no later than 1:00 p.m. (New York City time) on the day on which Borrower intends to make such
prepayment, prepay any Swingline Loans in whole or in part in amounts aggregating $100,000 or a
higher integral




47









 







multiple of $100,000 (or, if less, the aggregate outstanding principal amount of
all Swingline Loans then outstanding) by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment by initiating a wire transfer of the principal
and interest on the Loans no later than 1:00 P.M. (New York City time) on such day and the Borrower
shall deliver a federal reference number evidencing such wire to Administrative Agent as soon as
available thereafter on such day. Each such optional prepayment shall be applied to prepay ratably
the Loans of the several Banks (or the Swingline Lender in the case of Swingline Loans) included in
such Group or Borrowing.




               (b) The Borrower may, upon at least three (3) Euro-Dollar Business Days’ notice to the
Administrative Agent, pay all or any portion of any Euro-Dollar Loan as of the last day of the
Interest Period applicable thereto. Except as provided in Article 8 and except with respect to any
Euro-Dollar Loan which has been converted to a Base Rate Loan pursuant to Section 2.19, 8.2, 8.3 or
8.4 hereof, the Borrower may not prepay all or any portion of the principal amount of any
Euro-Dollar Loan prior to the end of the Interest Period applicable thereto unless the Borrower
shall also pay any applicable expenses pursuant to Section 2.14. Subject to the provisions of
clause (a) hereof, the Borrower may not prepay all or any portion of the principal amount of any
Money Market Loan prior to the end of the Interest Period applicable thereto without the consent of
all applicable Designated Lenders and Banks. Any such prepayment shall be given on or prior to the
third (3rd) Euro-Dollar Business Day prior to, but excluding, the date of prepayment to
the Administrative Agent. Each such optional prepayment shall be in the amounts set forth in
Section 2.11(a) above and shall be applied to prepay ratably the Loans of the Banks included in any
Group of Euro-Dollar Loans, except that any Euro-Dollar Loan which has been converted to a Base
Rate Loan pursuant to Section 2.19, 8.2, 8.3 or 8.4 hereof may be prepaid without ratable payment
of the other Loans in such Group of Loans which have not been so converted.



               (c) The Borrower may, upon at least one (1) Business Day’s (or, in the case of any Alternate
Currency Letter of Credit, one (1) Euro-Dollar Business Day’s) notice to the Administrative Agent
(by 1:00 P.M. New York City or local time to the principal financial center of the Alternate
Currency in question, as applicable on such Business Day (or Euro-Dollar Business Day)), reimburse
the Administrative Agent for the benefit of the Fronting Bank for the amount of any drawing under a
Letter of Credit in whole or in part in any amount.



               (d) The Borrower may at any time return any undrawn Letter of Credit to the Fronting Bank in
whole, but not in part, and the Fronting Bank within a reasonable period of time shall give the
Administrative Agent and each of the Banks notice of such return.



               (e) The Borrower may at any time and from time to time cancel all or any part of the Dollar
Commitments or Alternate Currency Commitments by the delivery to the Administrative Agent of a
notice of cancellation within the applicable time periods set forth in Sections 2.11(a) and (b) if
there are Loans then outstanding or, if there are no Loans outstanding at such time as to which the
Commitments with respect thereto are being canceled, upon at least three (3) Business Day’s notice
to the Administrative Agent, whereupon, in either event, all or such portion of the Commitments, as
applicable, shall terminate as to the applicable Banks, pro rata on the date set forth in such
notice of cancellation, and, if there are any Loans then outstanding, Borrower shall prepay, as
applicable, all or such portion of Loans outstanding on



48









 




such date in accordance with the
requirements of Section 2.11(a) and (b). In no event shall the Borrower be permitted to cancel
Commitments for which a Letter of Credit has been issued and is outstanding unless the Borrower
returns (or causes to be returned) such Letter of Credit to the Fronting Bank. Borrower shall be
permitted to designate in its notice of cancellation which Loans, if any, are to be prepaid. A
reduction of the Commitments pursuant to this Section 2.11(e) shall not effect a reduction in the
Swingline Commitment (unless so elected by the Borrower) until the aggregate Commitments have been
reduced to an amount equal to or less than the Swingline Commitment.




               (f) Any amounts so prepaid pursuant to Section 2.11 (a) or (b) may be reborrowed. In the event
Borrower elects to cancel all or any portion of the Commitments and the Swingline Commitment
pursuant to Section 2.11(e) hereof, such amounts may not be reborrowed.



          Section 2.12 Mandatory Prepayments. The Administrative Agent shall calculate the Dollar Equivalent Amount of all Loans denominated
in an Alternate Currency at the time of each Borrowing thereof and on the last Business Day of each
month during each Interest Period longer than one month in duration. If at any such time the sum
of (i) the Dollar Equivalent Amount of all outstanding Alternate Currency Loans, and (ii) the
outstanding Dollar Equivalent Amount of the Alternate Currency Letter of Credit Usage, so
determined by the Administrative Agent, in the aggregate, exceeds 105% of an amount equal to the
aggregate Alternate Currency Commitments less any Loans and Letters of Credit borrowed and issued
under the Dollar Commitments, Borrower, within three (3) Business Days after notice thereof from
the Administrative Agent, shall repay (and cause the applicable Qualified Borrowers to repay) all
or a portion of such Loans, otherwise in accordance with the applicable terms of this Agreement, in
such amount so that, following the making of such
payment, the Dollar Equivalent Amount outstanding of such Alternate Currency Loans and Alternate
Currency Letter of Credit Usage does not exceed the aggregate Alternate Currency Commitments less
any Loans and Letters of Credit borrowed and issued under the Dollar Commitments.




          Section 2.13 General Provisions as to Payments.




               (a) The Borrower or Qualified Borrower, as the case may be, shall make each payment of the
principal of and interest on the Loans and fees hereunder, by initiating a wire transfer not later
than 1:00 P.M. (New York City or local time to the principal financial center of the Alternate
Currency in question, as applicable) on the date when due, or, with respect to Money Market Loans,
fund such payment of the principal of and interest on the Loans and fees hereunder such that the
Designating Lender shall receive payment from Administrative Agent by 12:00 P.M. (New York City
time or local time to the principal financial center of the Alternate Currency in question), of
Federal or other funds immediately available in New York, New York or, in the case of any Alternate
Currency, the principal financial center of the Alternate Currency in question, to the
Administrative Agent at its address referred to in Section 9.1, and the Borrower shall deliver a
federal reference number evidencing such wire to Administrative Agent as soon as possible
thereafter on the date when due. The Administrative Agent will promptly (and in any event within
one (1) Business Day (or, with respect to Alternate Currencies, one (1) Euro-Dollar Business Day)
after receipt thereof) distribute to each Bank its ratable share (or applicable share with respect
to Money Market Loans) of each such payment



49









 




received by the Administrative Agent for the account of
the Banks. If and to the extent that the Administrative Agent shall receive any such payment for
the account of the Banks on or before 11:00 A.M. (New York City or local time to the principal
financial center of the Alternate Currency in question, as applicable) on any Business Day (or
Euro-Dollar Business Day, as applicable), and Administrative Agent shall not have distributed to
any Bank its applicable share of such payment on such day, Administrative Agent shall distribute
such amount to such Bank together with interest thereon, for each day from the date such amount
should have been distributed to such Bank until the date Administrative Agent distributes such
amount to such Bank, at the Federal Funds Rate. Whenever any payment of principal of, or interest
on the Base Rate Loans or Swingline Loans or of fees shall be due on a day which is not a Business
Day, the date for payment thereof shall be extended to the next succeeding Business Day. Whenever
any payment of principal of, or interest on, the Euro-Dollar Loans shall be due on a day which is
not a Euro-Dollar Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case the date for payment thereof shall be the next preceding Euro-Dollar Business
Day. Whenever any payment of principal of, or interest on, the Money Market Absolute Rate Loans
shall be due on a day which is not a Business Day, the date for payment thereof shall be extended
to the next succeeding Business Day. Whenever any payment of principal of, or interest on, the
Money Market IBOR Loans shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business Day. If the date
for any payment of principal is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time.




               (b) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Banks hereunder that the Borrower or Qualified Borrower, as
the case may be, will not make such payment in full, the Administrative Agent may assume that the
Borrower or Qualified Borrower, as the case may be, has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Bank on such due date an amount equal to the amount
then due such Bank. If and to the extent that the Borrower or Qualified Borrower, as the case may
be, shall not have so made such payment, each Bank shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such Bank repays such
amount to the Administrative Agent, at the Federal Funds Rate.



               (c) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.3, 2.5, 2.13, 2.17 or 9.3, then the Administrative Agent, notwithstanding any contrary provision
hereof, shall (i) apply any amounts thereafter received by the Administrative Agent for the account
of such Bank for the benefit of the Administrative Agent, the Swingline Lender or the Fronting Bank
to satisfy such Banks’s obligations to it under such Section until all such unsatisfied obligations
are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for,
and application to, any future funding obligations of such Bank under any such Section, in the case
of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in
its reasonable discretion.



50









 





          Section 2.14 Funding Losses. If the Borrower or Qualified Borrower, as the case may be, makes any payment of principal with
respect to any Euro-Dollar Loan or Money Market IBOR Loan (pursuant to Article II, VI or VIII or
otherwise) on any day other than the last day of the Interest Period applicable thereto, or if the
Borrower or Qualified Borrower, as the case may be, fails to borrow any Euro-Dollar Loans or Money
Market IBOR Loans after notice has been given to any Bank in accordance with Section 2.5(a) or
2.4(f), as applicable, or if Borrower or Qualified Borrower, as the case may be, shall deliver a
Notice of Interest Rate Election specifying that a Euro-Dollar Loan shall be converted on a date
other than the first (1st) day of the then current Interest Period applicable thereto, the Borrower
shall reimburse each Bank within 15 days after certification of such Bank of such loss or expense
(which shall be delivered by each such Bank to Administrative Agent for delivery to Borrower) for
any resulting loss or expense incurred by it (or by an existing Participant in the related Loan),
including, without limitation, any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period after any such payment or failure
to borrow, provided that such Bank shall have delivered to Administrative Agent and Administrative
Agent shall have delivered to the Borrower a certification as to the amount of such loss or
expense, which certification shall set forth in reasonable detail the basis for and calculation of
such loss or expense and shall be conclusive in the absence of demonstrable error.




          Section 2.15 Computation of Interest and Fees. Interest based on the Prime Rate or for Euro-Dollar Loans denominated in British Pounds Sterling
hereunder shall be computed on the basis of a year of 365 days (or, in the case of interest based
on the Prime Rate only, 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and fees shall be
computed on the basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day).




          Section 2.16 Use of Proceeds. The Borrower shall use, or shall cause any Qualified Borrower to use, the proceeds of the Loans
for general corporate purposes, including, without limitation, the acquisition of real property to
be used in the Borrower’s existing business and for general working capital needs of the Borrower;
provided, however, that no Swingline Loan shall be used more than once for the
purpose of refinancing another Swingline Loan, in whole or part.




          Section 2.17 Letters of Credit.




               (a) Subject to the terms contained in this Agreement and the other Loan Documents, upon the
receipt of a notice in accordance with Section 2.2(b) requesting the issuance of a Letter of
Credit, the Fronting Bank shall issue a Letter of Credit or Letters of Credit in such form as is
reasonably acceptable to the Borrower (subject to the provisions of Section 2.2(b)) in an amount or
amounts equal to the amount or amounts requested by the Borrower; provided that, in the
case of (i) Alternate Currency Letter(s) of Credit, the Fronting Bank shall issue the same in the
Alternate Currency requested and (ii) Dollar Letter(s) of Credit, the Fronting Bank shall issue the
same in Dollars.



51









 





               (b) Each Letter of Credit shall be issued in the minimum amount of the Dollar Equivalent
Amount of One Hundred Thousand Dollars ($100,000) or such lesser amount as may be agreed to by the
Fronting Bank.



               (c) The Letter of Credit Usage shall be no more than the lesser of (i) the Dollar Equivalent
Amount of One Hundred Million Dollars ($100,000,000) and (ii) twenty percent (20%) of the Facility
Amount at any one time.



               (d) There shall be no more than twenty-five (25) Letters of Credit outstanding at any one
time.



               (e) In the event of any request for a drawing under any Letter of Credit by the beneficiary
thereunder, the Fronting Bank shall notify the Borrower and the Administrative Agent (and the
Administrative Agent shall notify each Bank thereof) on or before the date on which the Fronting
Bank intends to honor such drawing, and, except as provided in this subsection (e), the Borrower
shall reimburse the Fronting Bank, in immediately available funds, on the same day on which such
drawing is honored in an amount equal to the Dollar Equivalent Amount of such drawing.
Notwithstanding anything contained herein to the contrary, however, unless the Borrower shall have
notified the Administrative Agent and the Fronting Bank prior to 1:00 P.M. (New York City time) on
the Business Day (or Euro-Dollar Business
Day in the case of Alternate Currency Letters of Credit) immediately preceding the date of
such drawing that the Borrower intends to reimburse the Fronting Bank for the Dollar Equivalent
Amount of such drawing with funds other than the proceeds of the Loans, the Borrower shall be
deemed to have timely given a Notice of Borrowing pursuant to Section 2.2 to the Administrative
Agent, requesting a Borrowing of Base Rate Loans on the date on which such drawing is honored and
in an amount equal to the Dollar Equivalent Amount of such drawing. Each Bank (other than the
Fronting Bank) shall, in accordance with Section 2.3(b), make available its pro rata share of such
Borrowing to the Administrative Agent, the proceeds of which shall be applied directly by the
Administrative Agent to reimburse the Fronting Bank for the amount of such draw. Notwithstanding
anything contained herein to the contrary, however, in the case of Alternate Currency Letters of
Credit, Borrower or, if such Letter of Credit was issued on behalf of a Qualified Borrower, such
Qualified Borrower (which obligations of such Qualified Borrower are guaranteed by Borrower
pursuant to the Qualified Borrower Guaranty) shall reimburse any drawing thereunder in the
Alternate Currency in which such Alternate Currency Letter(s) of Credit are denominated;
provided, however, that if (x) any such drawing is made at a time when there exists
an Event of Default or (y) Borrower shall not have notified the Administrative Agent and Fronting
Bank prior to 11 a.m. (New York time) at least two (2) Euro-Dollar Business Days immediately prior
to such drawing that Borrower intends to reimburse Fronting Bank in the applicable Alternate
Currency, then, in either such case, such reimbursement shall instead be made by payment in Dollars
of the Dollar Equivalent Amount of such drawing and in immediately available funds. In the event
that any Bank fails to make available to the Fronting Bank the amount of such Bank’s participation
on the date of a drawing, the Fronting Bank shall be entitled to recover such amount on demand from
such Bank together with interest at the Federal Funds Rate commencing on the date such drawing is
honored, and the provisions of Section 9.16 shall otherwise apply to such failure.



52









 





               (f) If, at the time a beneficiary under any Letter of Credit requests a drawing thereunder, an
Event of Default as described in Section 6.1(f) or Section 6.1(g) shall have occurred and is
continuing, then on the date on which the Fronting Bank shall have honored such drawing, the
Borrower shall have an unreimbursed obligation (the “Unreimbursed Obligation”) to the
Fronting Bank in an amount equal to the amount of such drawing, which amount shall bear interest
at the annual rate of the sum of the Base Rate plus two percent (2%). Each Bank shall purchase an
undivided participating interest in such drawing in an amount equal to its pro rata share of the
Commitments, and upon receipt thereof the Fronting Bank shall deliver to such Bank an Unreimbursed
Obligation participation certificate dated the date of the Fronting Bank’s receipt of such funds
and in the amount of such Bank’s pro rata share.



               (g) If, after the date hereof, any change in any law or regulation or in the interpretation
thereof by any court or administrative or governmental authority charged with the administration
thereof shall either (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against letters of credit issued by, or assets held by, or deposits in or for the
account of, or participations in any letter of credit, upon any Bank (including the Fronting Bank)
or (ii) impose on any Bank any other condition regarding this Agreement or such Bank (including the
Fronting Bank) as it pertains to the Letters of Credit or any participation therein and the result
of any event referred to in the preceding clause (i) or (ii) shall be to increase, by an amount
deemed by the Fronting Bank or such Bank to be material, the cost to the Fronting Bank or any Bank
of issuing or maintaining any Letter of Credit or participating therein,
then the Borrower shall pay to the Fronting Bank or such Bank, within 15 days after written
demand by such Bank (with a copy to the Administrative Agent), which demand shall be accompanied by
a certificate showing, in reasonable detail, the calculation of such amount or amounts, such
additional amounts as shall be required to compensate the Fronting Bank or such Bank for such
increased costs or reduction in amounts received or receivable hereunder. Each Bank will promptly
notify the Borrower and the Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank to compensation pursuant to this Section 2.17
and will designate a different Applicable Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the reasonable judgment of such
Bank, be otherwise disadvantageous to such Bank. If such Bank shall fail to notify Borrower of any
such event within 90 days following the end of the month during which such event occurred, then
Borrower’s liability for any amounts described in this Section incurred by such Bank as a result of
such event shall be limited to those attributable to the period occurring subsequent to the
ninetieth (90th) day prior to, but excluding, the date upon which such Bank actually notified
Borrower of the occurrence of such event. A certificate of any Bank claiming compensation under
this Section 2.17 and setting forth a reasonably detailed calculation of the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of demonstrable error. In
determining such amount, such Bank may use any reasonable averaging and attribution methods.



               (h) The Borrower hereby agrees to protect, indemnify, pay and save the Fronting Bank harmless
from and against any and all claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys’ fees and disbursements) which the Fronting Bank may incur
or be subject to as a result of (i) the issuance of the Letters of Credit, other than to the extent
of the bad faith, gross negligence or wilful misconduct of the Fronting Bank or (ii) the failure of
the Fronting Bank to honor a drawing under any Letter of



53









 




Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de
facto government or governmental authority (collectively, “Governmental Acts”),
other than to the extent of the bad faith, gross negligence or wilful misconduct of the Fronting
Bank. As between the Borrower and the Fronting Bank, the Borrower assumes all risks of the acts
and omissions of any beneficiary with respect to its use, or misuses of, the Letters of Credit
issued by the Fronting Bank. In furtherance and not in limitation of the foregoing, the Fronting
Bank shall not be responsible (i) for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the application for and
issuance of such Letters of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or insufficiency of
any instrument transferring or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of any such
Letter of Credit to comply fully with conditions required in order to draw upon such Letter of
Credit, other than as a result of the bad faith, gross negligence or wilful misconduct of the
Fronting Bank; (iv) for errors, omissions, interruptions or delays in transmission or delivery of
any message, by mail, cable, telegraph, facsimile transmission, or otherwise; (v) for errors in
interpretation of any technical terms; (vi) for any loss or delay in the transmission or otherwise
of any documents required in order to make a drawing under any such Letter of Credit or of the
proceeds thereof; (vii) for the misapplication by the beneficiary of any such Letter of Credit of
the proceeds of such Letter of Credit; and (viii) for any consequence arising from causes beyond
the control of the Fronting Bank, including any Government Acts, in each case other than to the extent of the
bad faith, gross negligence or willful misconduct of the Fronting Bank. None of the above shall
affect, impair or prevent the vesting of the Fronting Bank’s rights and powers hereunder. In
furtherance and extension and not in limitation of the specific provisions hereinabove set forth,
any action taken or omitted by the Fronting Bank under or in connection with the Letters of Credit
issued by it or the related certificates, if taken or omitted in good faith, shall not put the
Fronting Bank under any resulting liability to the Borrower; provided that, notwithstanding
anything in the foregoing to the contrary, the Fronting Bank will be liable to the Borrower for any
damages suffered by the Borrower or its Subsidiaries as a result of the Fronting Bank’s grossly
negligent or wilful failure to pay under any Letter of Credit after the presentation to it of a
sight draft and certificates strictly in compliance with the terms and conditions of the Letter of
Credit.




               (i) If the Fronting Bank or the Administrative Agent is required at any time, pursuant to any
bankruptcy, insolvency, liquidation or reorganization law or otherwise, to return to the Borrower
any reimbursement by the Borrower of any drawing under any Letter of Credit, each Bank shall pay to
the Fronting Bank or the Administrative Agent, as the case may be, its pro rata share of such
payment, but without interest thereon unless the Fronting Bank or the Administrative Agent is
required to pay interest on such amounts to the person recovering such payment, in which case with
interest thereon, computed at the same rate, and on the same basis, as the interest that the
Fronting Bank or the Administrative Agent is required to pay.



               (j) It is hereby acknowledged and agreed by the Borrower, the Administrative Agent and all the
Banks party hereto that on the Closing Date, the letters of credit previously issued by JPMorgan
Chase Bank, N.A. as “Fronting Bank” under the Existing



54









 




Revolving Credit Agreement, and more
particularly set forth on Schedule 2.17 hereto, shall be transferred to this Agreement and shall be
deemed to be Letters of Credit hereunder.




          Section 2.18 Letter of Credit Usage Absolute. The obligations of the Borrower under this Agreement in respect of any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement (as the same may be amended from time to time) and any Letter of Credit Documents (as
hereinafter defined) under all circumstances, including, without limitation, to the extent
permitted by law, the following circumstances:




               (a) any lack of validity or enforceability of any Letter of Credit or any other agreement or
instrument relating thereto (collectively, the “Letter of Credit Documents”) or any Loan
Document;



               (b) any change in the time, manner or place of payment of, or in any other term of, all or any
of the obligations of the Borrower in respect of the Letters of Credit or any other amendment or
waiver of or any consent by the Borrower to departure from all or any of the Letter of Credit
Documents or any Loan Document; provided, that the Fronting Bank shall not consent to any
such change or amendment unless previously consented to in writing by the Borrower;



               (c) any exchange, release or non-perfection of any collateral, or any release or amendment or
waiver of or consent to departure from any guaranty, for all or any of the obligations of the
Borrower in respect of the Letters of Credit;



               (d) the existence of any claim, set-off, defense or other right that the Borrower may have at
any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for whom
any such beneficiary or any such transferee may be acting), the Administrative Agent, the Fronting
Bank or any Bank (other than a defense based on the bad faith, gross negligence or wilful
misconduct of the Administrative Agent, the Fronting Bank or such Bank) or any other Person,
whether in connection with the Loan Documents, the transactions contemplated hereby or by the
Letters of Credit Documents or any unrelated transaction;



               (e) any draft or any other document presented under or in connection with any Letter of Credit
or other Loan Document proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect; provided, that payment by
the Fronting Bank under such Letter of Credit against presentation of such draft or document shall
not have been the result of the bad faith, gross negligence or wilful misconduct of the Fronting
Bank;



               (f) payment by the Fronting Bank against presentation of a draft or certificate that does not
strictly comply with the terms of the Letter of Credit; provided, that such payment shall
not have been the result of the bad faith, gross negligence or wilful misconduct of the Fronting
Bank; and



               (g) any other circumstance or happening whatsoever other than the payment in full of all
obligations hereunder in respect of any Letter of Credit or any agreement



55









 




or instrument relating to
any Letter of Credit, whether or not similar to any of the foregoing, that might otherwise
constitute a defense available to, or a discharge of, the Borrower; provided, that such
other circumstance or happening shall not have been the result of bad faith, gross negligence or
wilful misconduct of the Fronting Bank.




          Section 2.19 Special Provisions Regarding Alternate Currency Loans.




               (a) Upon the occurrence of a Sharing Event, automatically (and without the taking of any
action) (x) all then outstanding Euro-Dollar Loans denominated in an Alternate Currency shall be
automatically converted into Base Rate Loans denominated in Dollars (in an amount equal to the
Dollar Equivalent Amount of the aggregate principal amount of the applicable Euro-Dollar Loans on
the date such Sharing Event first occurred, which Loans denominated in Dollars (i) shall thereafter
continue to be deemed to be Base Rate Loans and (ii) 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 (y) 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, taking the Dollar Equivalent Amount of such accrued and unpaid interest
and other amounts.



               (b) Upon the occurrence of a Sharing Event (i) no further Loans shall be made, and (ii) all
amounts from time to time accruing with respect to, and all amounts from time to time payable on
account of, any outstanding Euro-Dollar Loans initially denominated in an Alternate 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 Euro-Dollar Loans had originally been
made in Dollars.



          Section 2.20 Letters of Credit Maturing after the Maturity Date.




               (a) Notwithstanding anything contained herein to the contrary, if any Letters of Credit, by
their terms, shall mature after the Maturity Date (as the same may be extended), then, on and after
the Maturity Date, the provisions of this Agreement shall remain in full force and effect with
respect to such Letters of Credit, and the Borrower shall comply with the provisions of Section
2.20(b). No Letter of Credit shall mature on a date that is more than twelve (12) months after the
Maturity Date then in effect.



               (b) If, at any time and from time to time, any Letter of Credit shall have been issued
hereunder and the same shall expire on a date after the Maturity Date, then, on the Maturity Date,
the Borrower shall pay to the Administrative Agent, on behalf of the Banks, in same day funds at
the Administrative Agent’s office designated in such demand, for deposit in the Letter of Credit
Collateral Account, Letter of Credit Collateral in an amount equal to the Dollar Equivalent Amount
of the Letter of Credit Usage under the Letters of Credit. The Administrative Agent shall
recalculate the Dollar Equivalent Amount with respect to all Alternate Currency Letters of Credit
monthly, as of the first Business Day of each month. Interest shall accrue on the Letter of Credit
Collateral Account in accordance with the provisions of Section 6.4.



56









 





               (c) From and after the Maturity Date, the Administrative Agent shall calculate the Dollar
Equivalent Amount of any outstanding Alternate Currency Letters of Credit on the last Business Day
of each month. If at any such time the Dollar Equivalent Amount of the Letter of Credit Usage, so
determined by the Administrative Agent, exceeds the amount in the Letter of Credit Collateral
Account, Borrower, within three (3) Business Days after notice thereof from the Administrative
Agent, shall deposit (and cause the applicable Qualified Borrowers to deposit) any such shortfall
in the Letter of Credit Collateral Account.



ARTICLE III




CONDITIONS



          Section 3.1 Closing. The closing hereunder shall occur on the date when each of the following conditions is satisfied
(or waived in writing by the Administrative Agent and the Banks), each document to be dated the
Closing Date unless otherwise indicated:




               (a) the Borrower and any Qualified Borrower as of the Closing Date shall have executed and
delivered to the Administrative Agent a Note for the account of each Bank dated on or before the
Closing Date complying with the provisions of Section 2.6;



               (b) the Borrower and the Administrative Agent and each of the Banks shall have executed and
delivered to the Borrower and the Administrative Agent a duly executed original of this Agreement;



               (c) Guarantor shall have executed and delivered to the Administrative Agent a duly executed
original of the Guaranty and the Qualified Borrower Guaranty, if applicable;



               (d) the Administrative Agent shall have received an opinion of DLA Piper LLP (US), counsel for
the Borrower and Guarantor, acceptable to the Administrative Agent, the Banks and their counsel;



               (e) the Administrative Agent shall have received all documents the Administrative Agent may
reasonably request relating to the existence of the Borrower, each Qualified Borrower as of the
Closing Date, and General Partner, the authority for and the validity of this Agreement and the
other Loan Documents, the incumbency of officers executing this Agreement and the other Loan
Documents and any other matters relevant hereto, all in form and substance satisfactory to the
Administrative Agent. Such documentation shall include, without limitation, the agreement of
limited partnership of the Borrower, as well as the certificate of limited partnership of the
Borrower, both as amended, modified or supplemented to the Closing Date, certified to be true,
correct and complete by a senior officer of the Borrower as of a date not more than ten (10) days
prior to the Closing Date, together with a certificate of existence as to the Borrower from the
Secretary of State (or the equivalent thereof) of Delaware, to be dated not more than thirty (30)
days prior to the Closing Date, as well as the articles of incorporation of General Partner, as
amended, modified or supplemented to the Closing Date, certified to be true, correct and complete
by a senior officer of General Partner as of a date not more than ten (10) days prior to the
Closing Date, together with a good standing certificate as to General Partner



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from the Secretary of
State (or the equivalent thereof) of Maryland, to be dated not more than thirty (30) days prior to
the Closing Date and correlative documentation for each Qualified Borrower as of the Closing Date;




               (f) the Borrower, each Qualified Borrower as of the Closing Date and General Partner each
shall have executed a solvency certificate acceptable to the Administrative Agent;



               (g) the Administrative Agent shall have received all certificates, agreements and other
documents and papers referred to in this Section 3.1 and the Notice of Borrowing referred to in
Section 3.2, if applicable, unless otherwise specified, in sufficient
counterparts, satisfactory in form and substance to the Administrative Agent in their sole
discretion;



               (h) the Borrower shall have taken all actions required to authorize the execution and delivery
of this Agreement and the other Loan Documents and the performance thereof by the Borrower, General
Partner shall have taken all actions required to authorize the execution and delivery of the
Guaranty and the other Loan Documents and the performance thereof by General Partner, and each
Qualified Borrower as of the Closing date shall have taken all actions required to authorize the
execution and delivery of its Note and the performance thereof by such Qualified Borrower;



               (i) the Banks shall be satisfied that neither the Borrower, General Partner nor any
Consolidated Subsidiary is subject to any present or contingent environmental liability which could
have a Material Adverse Effect and the Borrower shall have delivered a certificate so stating;



               (j) the Administrative Agent shall have received, for its and any other Bank’s account, all
fees due and payable pursuant to Section 2.9 hereof on or before the Closing Date, and the
reasonable fees and expenses accrued through the Closing Date of Skadden, Arps, Slate, Meagher &
Flom LLP, if required by such firm and if such firm has delivered an invoice in reasonable detail
of such fees and expenses in sufficient time for Borrower to approve and process the same, shall
have been paid to Skadden, Arps, Slate, Meagher & Flom LLP;



               (k) the Borrower shall have delivered copies of all consents, licenses and approvals, if any,
required in connection with the execution, delivery and performance by the Borrower, each Qualified
Borrower as of the Closing Date and General Partner, and the validity and enforceability, of the
Loan Documents, or in connection with any of the transactions contemplated thereby, and such
consents, licenses and approvals shall be in full force and effect;



               (l) no Default or Event of Default shall have occurred; and



               (m) the Borrower shall have delivered a certificate in form acceptable to Administrative Agent
showing compliance with the requirements of Section 5.8 as of the Closing Date.



          Section 3.2 Borrowings. The obligation of any Bank to make a Loan or to participate in any Letter of Credit issued by
the Fronting




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Bank and the obligation of the Fronting Bank to issue a Letter of Credit or the
obligation of the Swingline Lender to make a Swingline Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:




               (a) receipt by the Administrative Agent of a Notice of Borrowing as required by Section 2.2 or
Section 2.3(b)(i) or a Notice of Money Market Borrowing as required by Section 2.4 or a request to
cause a Fronting Bank to issue a Letter of Credit pursuant to Section 2.17;



               (b) in the event that such Loan is to be made to, or such Letter of Credit is to be issued for
the account of, a Qualified Borrower, receipt by the Administrative Agent of a Note by such
Qualified Borrower for the account of each Bank, if not previously delivered, satisfying the
requirements of Section 2.6;



               (c) immediately after such Borrowing, the aggregate outstanding principal amount of the Loans
plus the Letter of Credit Usage will not exceed the aggregate amount of the Commitments;



               (d) immediately before and after such Borrowing or issuance of any Letter of Credit, no
Default or Event of Default shall have occurred and be continuing both before and after giving
effect to the making of such Loans or the issuance of such Letter of Credit;



               (e) the representations and warranties of the Borrower contained in this Agreement (other than
representations and warranties which expressly speak as of a different date) shall be true and
correct in all material respects on and as of the date of such Borrowing both before and after
giving effect to the making of such Loans;



               (f) no law or regulation shall have been adopted, no order, judgment or decree of any
governmental authority shall have been issued, and no litigation shall be pending, which does or
seeks to enjoin, prohibit or restrain, the making or repayment of the Loans or the consummation of
the transactions contemplated by this Agreement; and



               (g) no event, act or condition shall have occurred after the Closing Date which, in the
reasonable judgment of the Administrative Agent or the Majority Banks, as the case may be, has had
or is likely to have a Material Adverse Effect.


Each Borrowing hereunder or issuance of a Letter of Credit hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of such Borrowing as to the facts specified
in clauses (b), (c), (d), (e) and (f) (to the extent that Borrower is or should have been aware of
any Material Adverse Effect) of this Section, except as otherwise disclosed in writing by Borrower
to the Banks. Notwithstanding anything to the contrary, no Borrowing shall be permitted if such
Borrowing would cause Borrower to fail to be in compliance with any of the covenants contained in
this Agreement or in any of the other Loan Documents.





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ARTICLE IV




REPRESENTATIONS AND WARRANTIES



          In order to induce the Administrative Agent and each of the other Banks which is or may become
a party to this Agreement to make the Loans, the Borrower makes the following representations and
warranties as of the Closing Date. Such representations and warranties shall survive the
effectiveness of this Agreement, the execution and delivery of the other Loan Documents and the
making of the Loans.




          Section 4.1 Existence and Power. The Borrower is a limited partnership, duly formed and validly existing as a limited partnership
under the laws of the State of Delaware and has all powers and all material governmental licenses,
authorizations, consents and approvals required to own its property and assets and carry on its
business as now conducted or as it presently proposes to conduct and has been duly qualified and is
in good standing in every jurisdiction in which the failure to be so qualified and/or in good
standing is likely to have a Material Adverse Effect. General Partner is a corporation, duly
formed, validly existing and in good standing under the laws of the State of Maryland and has all
powers and all material governmental licenses, authorizations, consents and approvals required to
own its property and assets and carry on its business as now conducted or as it presently proposes
to conduct and has been duly qualified and is in good standing in every jurisdiction in which the
failure to be so qualified and/or in good standing is likely to have a Material Adverse Effect.
Each Qualified Borrower is a duly formed and validly existing juridical entity under the laws of
its jurisdiction of formation and has all powers and all material governmental licenses,
authorizations, consents and approvals required to own its property and assets and carry on its
business as now conducted or as it presently proposes to conduct and has been duly qualified and is
in good standing in every jurisdiction in which the failure to be so qualified and/or in good
standing is likely to have a Material Adverse Effect.




          Section 4.2 Power and Authority. The Borrower and each Qualified Borrower has the requisite power and authority to execute,
deliver and carry out the terms and provisions of each of the Loan Documents to which it is a party
and has taken all necessary action, if any, to authorize the execution and delivery on behalf of
the Borrower or such Qualified Borrower and the performance by the Borrower or such Qualified
Borrower of the Loan Documents to which it is a party. The Borrower, each Qualified Borrower and
General Partner each have duly executed and delivered each Loan Document to which it is a party in
accordance with the terms of this Agreement, and each such Loan Document constitutes the legal,
valid and binding obligation of the Borrower, such Qualified Borrower and General Partner,
enforceable in accordance with its terms, except as enforceability may be limited by applicable
insolvency, bankruptcy or other laws affecting creditors rights generally, or general principles of
equity, whether such enforceability is considered in a proceeding in equity or at law. General
Partner has the power and authority to execute, deliver and carry out the terms and provisions of
each of the Loan Documents to which it is a party and has taken all necessary action to authorize
the execution, delivery and performance of such Loan Documents. General Partner has the power and
authority to execute, deliver and carry out the terms and provisions of each of the Loan Documents
on behalf of the Borrower to which the Borrower is a party and has taken all necessary action to




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authorize the execution and delivery on behalf of the Borrower and the performance by the Borrower
of such Loan Documents.




          Section 4.3 No Violation. (a) Neither the execution, delivery or performance by or on behalf of the Borrower of the Loan
Documents to which it is a party, nor compliance by the Borrower with the terms and provisions
thereof nor the consummation of the transactions contemplated by such Loan Documents, (i) will
materially contravene any applicable provision of any law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will materially conflict
with or result in any breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the obligation to create
or impose) any Lien upon any of the property or assets of the Borrower or any of its Consolidated
Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, or other agreement or
other instrument to which the Borrower (or of any partnership of which the Borrower is a partner)
or any of its Consolidated Subsidiaries is a party or by which it or any of its property or assets
is bound or to which it is subject (except for such breaches and defaults under loan agreements
which the lenders thereunder have agreed to forbear pursuant to valid forbearance agreements), or
(iii) will cause a material default by the Borrower under any organizational document of any Person
in which the Borrower has an interest, or cause a material default under the Borrower’s agreement
or certificate of limited partnership, the consequences of which conflict, breach or default would
have a Material Adverse Effect, or result in or require the creation or imposition of any Lien
whatsoever upon any Property (except as contemplated herein).




               (b) Neither the execution, delivery or performance by General Partner of the Loan Documents to
which it is a party, nor compliance by General Partner with the terms and provisions thereof nor
the consummation of the transactions contemplated by such Loan Documents, (i) will materially
contravene any applicable provision of any law, statute, rule, regulation, order, writ, injunction
or decree of any court or governmental instrumentality, (ii) will materially conflict with or
result in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of General Partner or any of its Consolidated
Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, or other agreement or
other instrument to which General Partner (or of any partnership of which General Partner is a
partner) or any of its Consolidated Subsidiaries is a party or by which it or any of its property
or assets is bound or to which it is subject (except for such breaches and defaults under loan
agreements which the lenders thereunder have agreed to forbear pursuant to valid forbearance
agreements), or (iii) will cause a material default by General Partner under any organizational
document of any Person in which General Partner has an interest, the consequences of which
conflict, breach or default would have a Material Adverse Effect, or result in or require the
creation or imposition of any Lien whatsoever upon any Property (except as contemplated herein).



               (c) Neither the execution, delivery or performance by any Qualified Borrower of the Loan
Documents to which it is a party, nor compliance by such Qualified Borrower with the terms and
provisions thereof nor the consummation of the transactions contemplated by such Loan Documents,
(i) will materially contravene any applicable provision of any law, statute, rule, regulation,
order, writ, injunction or decree of any court or



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governmental instrumentality, (ii) will
materially conflict with or result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets of such Qualified
Borrower pursuant to the terms of any indenture, mortgage, deed of trust, or other agreement or
other instrument to which such Qualified Borrower (or of any partnership of which such Qualified
Borrower is a partner) is a party or by which it or any of its property or assets is bound or to
which it is subject (except for such breaches and defaults under loan agreements which the lenders
thereunder have agreed to forbear pursuant to valid forbearance agreements), or (iii) will cause a
material default by such Qualified Borrower under
any organizational document of any Person in which such Qualified Borrower has an interest,
the consequences of which conflict, breach or default would have a Material Adverse Effect, or
result in or require the creation or imposition of any Lien whatsoever upon any Property (except as
contemplated herein).



          Section 4.4 Financial Information. (a) The consolidated balance sheet of Borrower and their Consolidated Subsidiaries as of
December 31, 2009, and the related consolidated statements of operations and cash flows of General
Partner for the fiscal year then ended, reported on by PriceWaterhouseCoopers fairly present, in
conformity with GAAP, the consolidated financial position of Borrower, General Partner and their
Consolidated Subsidiaries as of such date and the consolidated results of operations and cash flows
for such fiscal quarter.




               (b) Since September 30, 2010, (i) except as may have been disclosed in writing to the Banks,
nothing has occurred having a Material Adverse Effect, and (ii) except as set forth on Schedule
4.4(b), neither the Borrower nor General Partner has incurred any material indebtedness or guaranty
on or before the Closing Date.



          Section 4.5 Litigation. Except as previously disclosed by the Borrower in writing to the Banks, there is no action, suit
or proceeding pending against, or to the knowledge of the Borrower threatened against or affecting,
(i) the Borrower, any Qualified Borrower, General Partner or any of their Consolidated
Subsidiaries, (ii) the Loan Documents or any of the transactions contemplated by the Loan Documents
or (iii) any of their assets, before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable possibility of an adverse decision which could,
individually, or in the aggregate have a Material Adverse Effect or which in any manner draws into
question the validity of this Agreement or the other Loan Documents. As of the Closing Date, no
such action, suit or proceeding exists.




          Section 4.6 Intentionally Omitted.




          Section 4.7 Environmental. The Borrower conducts reviews of the effect of Environmental Laws on the business, operations
and properties of the Borrower and its Consolidated Subsidiaries when necessary in the course of
which it identifies and evaluates associated liabilities and costs (including, without limitation,
any capital or operating expenditures required for clean-up or closure of properties presently
owned, any capital or operating expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a condition of any license, permit or
contract, any related constraints on operating activities, and any actual or potential liabilities
to third parties, including, without limitation, employees, and any related costs and expenses).
On the basis of




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this review, the Borrower has reasonably concluded that such associated liabilities
and costs, including, without limitation, the costs of compliance with Environmental Laws, are
unlikely to have a Material Adverse Effect.




          Section 4.8 Taxes. The Borrower, each Qualified Borrower, General Partner and their Consolidated Subsidiaries have
filed all United States Federal income tax returns and all other material tax returns which are
required to be filed by them and have paid all taxes due pursuant to such returns or pursuant to
any assessment received by the Borrower, any Qualified Borrower, General Partner or any
Consolidated Subsidiary, except such taxes, if any, as are reserved against in accordance with
GAAP, such taxes as are being contested in good faith by appropriate proceedings or such taxes, the
failure to make payment of which when due and payable will not have, in the aggregate, a Material
Adverse Effect. The charges, accruals and reserves on the books of the Borrower, General Partner
and their Consolidated Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.




          Section 4.9 Full Disclosure. All information heretofore furnished by the Borrower to the Administrative Agent or any Bank for
purposes of or in connection with this Agreement or any transaction contemplated hereby or thereby
is true and accurate in all material respects on the date as of which such information is stated or
certified. The Borrower has disclosed to the Administrative Agent, in writing any and all facts
which have or may have (to the extent the Borrower can now reasonably foresee) a Material Adverse
Effect.




          Section 4.10 Solvency. On the Closing Date and after giving effect to the transactions contemplated by the Loan
Documents occurring on the Closing Date, the Borrower, each Qualified Borrower and General Partner
will be Solvent.




          Section 4.11 Use of Proceeds. All proceeds of the Loans will be used by the Borrower or the applicable Qualified Borrower only
in accordance with the provisions hereof. Neither the making of any Loan nor the use of the
proceeds thereof will violate or be inconsistent with the provisions of regulations T, U, or X of
the Federal Reserve Board.




          Section 4.12 Governmental Approvals. No order, consent, approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with the execution,
delivery and performance of any Loan Document or the consummation of any of the transactions
contemplated thereby other than those that have already been duly made or obtained and remain in
full force and effect or those which, if not made or obtained, would not have a Material Adverse
Effect;




          Section 4.13 Investment Company Act; Public Utility Holding Company Act. Neither the Borrower, any Qualified Borrower, General Partner nor any Consolidated Subsidiary
(other than AMB Capital Partners, LLC) is (x) an “investment company” or a company “controlled” by
an “investment company”, within the meaning of the Investment Company Act of 1940, as amended, or
(y) subject to any other federal or state law or regulation which purports to restrict or regulate
its ability to borrow money.




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          Section 4.14 Principal Offices. As of the Closing Date, the principal office, chief executive office and principal place of
business of the Borrower and Guarantor is Pier 1, Bay 1, San Francisco, California 94111.




          Section 4.15 REIT Status. General Partner is qualified and General Partner intends to continue to qualify as a real estate
investment trust under the Code.




          Section 4.16 Patents, Trademarks, etc.
The Borrower and each Qualified Borrower has obtained and holds in full force and effect all
patents, trademarks, servicemarks, trade names, copyrights and other such rights, free from
burdensome restrictions, which are necessary for the operation of its business as presently
conducted, the impairment of which is likely to have a Material Adverse Effect.




          Section 4.17 Judgments. As of the Closing Date, there are no final, non-appealable judgments or decrees in an aggregate
amount of Thirty-Five Million Dollars ($35,000,000) or more entered by a court or courts of
competent jurisdiction against General Partner or the Borrower or, to the extent such judgment
would be recourse to General Partner or Borrower, any of its Consolidated Subsidiaries (other than
judgments as to which, and only to the extent, a reputable insurance company has acknowledged
coverage of such claim in writing or which have been paid or stayed).




          Section 4.18 No Default. No Event of Default or, to the best of the Borrower’s knowledge, Default exists under or with
respect to any Loan Document and neither the Borrower, Guarantor nor any Qualified Borrower is in
default in any material respect beyond any applicable grace period under or with respect to any
other material agreement, instrument or undertaking to which it is a party or by which it or any of
its property is bound in any respect, the existence of which default is likely to result in a
Material Adverse Effect.




          Section 4.19 Licenses, etc. The Borrower and each Qualified Borrower has obtained and does hold in full force and effect,
all franchises, licenses, permits, certificates, authorizations, qualifications, accreditation,
easements, rights of way and other consents and approvals which are necessary for the operation of
its businesses as presently conducted, the absence of which is likely to have a Material Adverse
Effect.




          Section 4.20 Compliance With Law. To the Borrower’s knowledge, the Borrower, each Qualified Borrower and each of its respective
Real Property Assets are in compliance with all laws, rules, regulations, orders, judgments, writs
and decrees, including, without limitation, all building and zoning ordinances and codes, the
failure to comply with which is likely to have a Material Adverse Effect.




          Section 4.21 No Burdensome Restrictions. Except as may have been disclosed by the Borrower in writing to the Banks, neither Borrower nor
any Qualified Borrower is a party to any agreement or instrument or subject to any other obligation
or any charter or corporate or partnership restriction, as the case may be, which, individually or
in the aggregate, is likely to have a Material Adverse Effect.




          Section 4.22 Brokers’ Fees. The Borrower has not dealt with any broker or finder with respect to the transactions
contemplated by this Agreement or otherwise in




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connection with this Agreement, and the Borrower has
not done any act, had any negotiations or conversation, or made any agreements or promises which
will in any way create or give rise to any obligation or liability for the payment by the Borrower
of any brokerage fee, charge, commission or other compensation to any party with respect to the
transactions contemplated by the Loan Documents, other than the fees payable to the Administrative
Agent and the Banks, and certain other Persons as previously disclosed in writing to the
Administrative Agent.




          Section 4.23 Intentionally Omitted.




          Section 4.24 Insurance. The Borrower currently maintains insurance at 100% replacement cost insurance coverage (subject
to customary deductibles) in respect of each of its Real Property Assets, as well as commercial
general liability insurance (including, without limitation, “builders’ risk” where applicable)
against claims for personal, and bodily injury and/or death, to one or more persons, or property
damage, as well as workers’ compensation insurance, in each case with respect to liability and
casualty insurance with insurers having an A.M. Best policyholders’ rating of not less than A-VII
in amounts that prudent owners of assets such as Borrower’s directly or indirectly owned Real
Property Assets would maintain.




          Section 4.25 Organizational Documents. The documents delivered pursuant to Section 3.1(e) constitute, as of the Closing Date, all of
the organizational documents (together with all amendments and modifications thereof) of the
Borrower, each Qualified Borrower as of the Closing Date and General Partner. The Borrower
represents that it has delivered to the Administrative Agent true, correct and complete copies of
each such documents. General Partner is the general partner of the Borrower. General Partner
holds (directly or indirectly) an approximately 94.5% common equity ownership interest in the
Borrower as of the date hereof.




          Section 4.26 Unencumbered Properties. As of September 30, 2010, each Property listed on Schedule 1.1 as a Unencumbered Property (i) is
a wholly-owned or ground leased (directly or beneficially) by Borrower, a Financing Partnership or
a Joint Venture Subsidiary, (ii) is not subject (nor are any equity interests in such Property that
are owned directly or indirectly by Borrower, General Partner or any Joint Venture Parent subject)
to a Lien which secures Indebtedness of any Person, other than Permitted Liens, and (iii) is not
subject (nor are any equity interests in such Property that are owned directly or indirectly by
Borrower, General Partner or Joint Venture Parent subject) to any Negative Pledge. All of the
information set forth on Schedule 1.1 is true and correct in all material respects.




ARTICLE V




AFFIRMATIVE AND NEGATIVE COVENANTS



          The Borrower covenants and agrees that, so long as any Bank has any Commitment hereunder or
any Obligations remain unpaid:




          Section 5.1 Information. The Borrower will deliver to each of the Banks:




               (a) as soon as available and in any event within five (5) Business Days after the same is
filed with the Securities and Exchange Commission (but in no event later than 95 days after the end
of each Fiscal Year of the Borrower) a consolidated balance sheet of the



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Borrower, General Partner
and their Consolidated Subsidiaries as of the end of such Fiscal Year and the related consolidated
statements of Borrower’s and General Partner’s operations and consolidated statements of Borrower’s
and General Partner’s cash flow for such Fiscal Year, setting forth in each case in comparative
form the figures for the previous Fiscal Year (if available), all reported in a manner acceptable
to the Securities and Exchange Commission on Borrower’s and General Partner’s Form 10K and reported
on by PriceWaterhouseCoopers or other independent public accountants of nationally recognized
standing;



               (b) as soon as available and in any event within five (5) Business Days after the same is
filed with the Securities and Exchange Commission (but in no event later than 50 days after the end
of each of the first three quarters of each Fiscal Year of the Borrower and General Partner), (i) a
consolidated balance sheet of the Borrower, General Partner and their Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of Borrower’s and General
Partner’s operations and consolidated statements of Borrower’s and General Partner’s cash flow for
such quarter and for the portion of the Borrower’s or General Partner’s Fiscal Year ended at the
end of such quarter, all reported in the form provided to the Securities and Exchange Commission on
Borrower’s and General Partner’s Form 10Q, and (ii) and such other information reasonably requested
by the Administrative Agent or any Bank;



               (c) simultaneously with the delivery of each set of financial statements referred to in
clauses (a) and (b) above, a certificate of the chief financial officer of the Borrower (i) setting
forth in reasonable detail (including, without limitation, reconciliation to GAAP) the calculations
required to establish whether the Borrower was in compliance with the requirements of Section 5.8
on the date of such financial statements; (ii) certifying (x) that such financial statements fairly
present in all material respects the financial condition and the results of operations of the
Borrower on the dates and for the periods indicated, on the basis of GAAP, with respect to the
Borrower subject, in the case of interim financial statements, to normally recurring year-end
adjustments, and (y) that such officer has reviewed the terms of the Loan Documents and has made,
or caused to be made under his or her supervision, a review in reasonable detail of the business
and condition of the Borrower during the period beginning on the date through which the last such
review was made pursuant to this Section 5.1(c) (or, in the case of the first certification
pursuant to this Section 5.1(c), the Closing Date) and ending on a date not more than ten (10)
Business Days prior to, but excluding, the date of such delivery and that (1) on the basis of such
financial statements and such review of the Loan Documents, no Event of Default existed under
Section 6.1(b) with respect to Sections 5.8 and 5.9 at or as of the date of said financial
statements, and (2) on the basis of such review of the Loan Documents and the business and
condition of the Borrower, to the best knowledge of such officer, as of the last day of the period
covered by such certificate no Default or Event of Default under any other provision of Section 6.1
occurred and is continuing or, if any such Default or Event of Default has occurred and is
continuing, specifying the nature and extent thereof and, the action the Borrower proposes to take
in respect thereof. Such certificate shall set forth the calculations required to establish the
matters described in clauses (1) and (2) above;



               (d) (i) within five (5) Business Days after any officer of the Borrower obtains knowledge of
any Default, if such Default is then continuing, a certificate of the chief financial officer, or
other executive officer of the Borrower setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto; and (ii)



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promptly and in any event
within five (5) Business Days after the Borrower obtains knowledge thereof, notice of (x) any
litigation or governmental proceeding pending or threatened against the Borrower or its directly or
indirectly Real Property Assets as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, is likely to individually or in the aggregate,
result in a Material Adverse Effect, and (y) any other event, act or condition which is likely to
result in a Material Adverse Effect;



               (e) promptly upon the mailing thereof to the shareholders of General Partner generally, copies
of all proxy statements so mailed;



               (f) promptly upon the filing thereof and to the extent that the same is not publicly
available, copies of all reports on Forms 10-K and 10-Q (or their equivalents) (other than the
exhibits thereto, which exhibits will be provided upon request therefor by any Bank) which General
Partner shall have filed with the Securities and Exchange Commission;



               (g) promptly and in any event within thirty (30) days, if and when any member of the ERISA
Group (i) gives or is required to give notice to the PBGC of any “reportable event” (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds for a termination of
such Plan under Title IV of ERISA, or knows that the
plan administrator of any Plan has given or is required to give notice of any such reportable
event, a copy of the notice of such reportable event given or required to be given to the PBGC;
(ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA or notice
that any Multiemployer Plan is in reorganization, is insolvent or has been terminated, a copy of
such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate,
impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a
trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Code, a copy of such application; (v) gives notice of
intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section
4063 of ERISA, a copy of such notice; or (vii) fails to make any payment or contribution to any
Plan or Multiemployer Plan or in respect of any Benefit Arrangement or makes any amendment to any
Plan or Benefit Arrangement which has resulted or could result in the imposition of a Lien or the
posting of a bond or other security, and in the case of clauses (i) through (vii) above, which
event could result in a Material Adverse Effect, a certificate of the chief financial officer or
the chief accounting officer of the Borrower setting forth details as to such occurrence and
action, if any, which the Borrower or applicable member of the ERISA Group is required or proposes
to take;



               (h) promptly and in any event within ten (10) days after the Borrower obtains actual knowledge
of any of the following events, a certificate of the Borrower, executed by an officer of the
Borrower, specifying the nature of such condition, and the Borrower’s or, if the Borrower has
actual knowledge thereof, the Environmental Affiliate’s proposed initial response thereto: (i) the
receipt by the Borrower, or any of the Environmental Affiliates of any communication (written or
oral), whether from a governmental authority, citizens group, employee or otherwise, that alleges
that the Borrower, or any of the Environmental Affiliates, is not in compliance with applicable
Environmental Laws, and such noncompliance is likely to have a Material Adverse Effect, (ii) the
existence of any Environmental Claim pending against



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the Borrower or any Environmental Affiliate
and such Environmental Claim is likely to have a Material Adverse Effect or (iii) any release,
emission, discharge or disposal of any Material of Environmental Concern that is likely to form the
basis of any Environmental Claim against the Borrower or any Environmental Affiliate which in any
such event is likely to have a Material Adverse Effect;



               (i) promptly and in any event within five (5) Business Days after receipt of any notices or
correspondence from any company or agent for any company providing insurance coverage to the
Borrower relating to any loss which is likely to result in a Material Adverse Effect, copies of
such notices and correspondence;



               (j) simultaneously with the delivery of the information required by Sections 5.1(a) and (b), a
statement of all Unencumbered Properties; and



               (k) from time to time such additional information regarding the financial position or business
of the Borrower, General Partner and their Subsidiaries as the Administrative Agent, at the request
of any Bank, may reasonably request in writing, so long as disclosure of such information could not
result in a violation of, or expose the Borrower, General Partner or their Subsidiaries to any
material liability under, any applicable law, ordinance or
regulation or any agreements with unaffiliated third parties that are binding on the Borrower,
General Partner or any of their Subsidiaries or on any Property of any of them.



          Section 5.2 Payment of Obligations. The Borrower, each Qualified Borrower, General Partner and their Consolidated Subsidiaries will
pay and discharge, at or before maturity, all their respective material obligations and liabilities
including, without limitation, any obligation pursuant to any agreement by which it or any of its
properties is bound, in each case where the failure to so pay or discharge such obligations or
liabilities is likely to result in a Material Adverse Effect, and will maintain in accordance with
GAAP, appropriate reserves for the accrual of any of the same.




          Section 5.3 Maintenance of Property; Insurance; Affiliate Transfers.




               (a) The Borrower will keep, and will cause each Consolidated Subsidiary to keep, all property
useful and necessary in its business, including without limitation its Real Property Assets (for so
long as it constitutes Real Property Assets), in good repair, working order and condition, ordinary
wear and tear excepted, in each case where the failure to so maintain and repair will have a
Material Adverse Effect.



               (b) The Borrower shall maintain, or cause to be maintained, insurance described in Section
4.24 hereof with insurers meeting the qualifications described therein, which insurance shall in
any event not provide for less coverage than insurance customarily carried by owners of properties
similar to, and in the same locations as, Borrower’s Real Property Assets. The Borrower will
deliver to the Administrative Agent upon the reasonable request of the Administrative Agent from
time to time (i) full information as to the insurance carried, (ii) within five (5) days of receipt
of notice from any insurer a copy of any notice of cancellation or material change in coverage
required by Section 4.24 from that existing on the date of this



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Agreement and (iii) forthwith,
notice of any cancellation or nonrenewal (without replacement) of coverage by the Borrower.



          Section 5.4 Maintenance of Existence. The Borrower, each Qualified Borrower and General Partner each will preserve, renew and keep in
full force and effect, their respective partnership and corporate existence and their respective
rights, privileges and franchises necessary for the normal conduct of business unless the failure
to maintain such rights and franchises does not have a Material Adverse Effect.




          Section 5.5 Compliance with Laws. The Borrower, each Qualified Borrower and General Partner will, and will cause their
Subsidiaries to, comply in all material respects with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities (including, without limitation,
Environmental Laws, and all zoning and building codes with respect to its Real Property Assets and
ERISA and the rules and regulations thereunder and all federal securities laws) except where the
necessity of compliance therewith is contested in good faith by appropriate proceedings or
where the failure to do so will not have a Material Adverse Effect or expose Administrative Agent
or Banks to any material liability therefor.




          Section 5.6 Inspection of Property, Books and Records. The Borrower will keep proper books of record and account in which full, true and correct
entries shall be made of all dealings and transactions in relation to its business and activities
in conformity with GAAP, modified as required by this Agreement and applicable law; and will permit
representatives of any Bank, at such Bank’s expense, or from and after an Event of Default, at
Borrower’s expense, to visit and inspect any of its properties, including without limitation its
Real Property Assets, and so long as disclosure of such information could not result in a violation
of, or expose the Borrower, any Qualified Borrower, General Partner or their Subsidiaries to any
material liability under, any applicable law, ordinance or regulation or any agreements with
unaffiliated third parties that are binding on the Borrower, any Qualified Borrower, General
Partner or any of their Subsidiaries or on any Property of any of them, to examine and make
abstracts from any of its books and records and to discuss its affairs, finances and accounts with
its officers and independent public accountants, all at such reasonable times during normal
business hours, upon reasonable prior notice and as often as may reasonably be desired.
Administrative Agent shall coordinate any such visit or inspection to arrange for review by any
Bank requesting any such visit or inspection.




          Section 5.7 Existence. The Borrower shall do or cause to be done, all things necessary to preserve and keep in full
force and effect its, each Qualified Borrower’s, General Partner’s and their Consolidated
Subsidiaries’ existence and its patents, trademarks, servicemarks, tradenames, copyrights,
franchises, licenses, permits, certificates, authorizations, qualifications, accreditation,
easements, rights of way and other rights, consents and approvals the nonexistence of which is
likely to have a Material Adverse Effect.




          Section 5.8 Financial Covenants.




               (a) Total Liabilities to Total Asset Value. Borrower shall not permit the ratio of
Total Liabilities to Total Asset Value of Borrower to exceed 0.60:1 at any time; provided,



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however, that in connection with a Material Acquisition, for the four (4) consecutive
quarters following such Material Acquisition, Total Liabilities may exceed sixty percent (60%) of
Total Asset Value, but in no event exceed sixty-five percent (65%) of Total Asset Value. For
purposes of this covenant, (i) Total Liabilities shall be adjusted by deducting therefrom an amount
equal to the lesser of (x) Total Liabilities that by its terms are scheduled to mature on or before
the date that is 24 months from the date of calculation, and (y) Unrestricted Cash or Cash
Equivalents, and (ii) Total Asset Value shall be adjusted by deducting therefrom the amount by
which Total Liabilities is adjusted under clause (i).



               (b) Adjusted EBITDA to Fixed Charges Ratio. Borrower shall not permit the ratio of
Adjusted EBITDA to Fixed Charges, for the then most recently completed four (4) consecutive Fiscal
Quarters, to be less than 1.50:1.



               (c) Secured Debt to Total Asset Value. Borrower shall not permit the ratio of Secured
Debt to Total Asset Value of Borrower to exceed 0.35:1 at any time; provided, however, that, in
connection with a Material Acquisition, for the four (4) consecutive quarters following such
Material Acquisition, the ratio of Secured Debt to Total Asset Value may exceed 0.35:1, but in no
event exceed 0.40:1. For purposes of this covenant, (i) Secured Debt shall be adjusted by
deducting therefrom an amount equal to the lesser of (x) Secured Debt that by its terms is
scheduled to mature on or before the date that is 24 months from the date of calculation, and (y)
Unrestricted Cash or Cash Equivalents, and (ii) Total Asset Value shall be adjusted by deducting
therefrom the amount by which Secured Debt is adjusted under clause (i)..



               (d) Intentionally Omitted.



               (e) Unencumbered Net Operating Cash Flow to Unsecured Interest Expense. Borrower
shall not permit the ratio of Unencumbered Net Operating Cash Flow to Unsecured Interest Expense to
be less than 1.75:1.



               (f) Minimum Tangible Net Worth. The Consolidated Tangible Net Worth of the Borrower
determined in conformity with GAAP will at no time be less than the sum of Three Billion Four
Hundred Forty Million Dollars ($3,440,000,000) and seventy percent (70%) of the Net Offering
Proceeds (other than proceeds received within ninety (90) days after the redemption, retirement or
repurchase of ownership or equity interests in Borrower or Guarantor, up to the amount paid by
Borrower or Guarantor in connection with such redemption, retirement or repurchase, where, for the
avoidance of doubt, the net effect is that neither Borrower nor Guarantor shall have increased its
Net Worth as a result of any such proceeds) received by the Borrower or General Partner subsequent
to the Closing Date.



               (g) Dividends. During the continuance of a monetary Event of Default, Borrower shall
only pay partnership distributions necessary to enable General Partner to make those dividends
necessary to maintain General Partner’s status as a real estate investment trust.



               (h) Permitted Holdings. Borrower’s primary business will not be substantially
different from that conducted by Borrower on the Closing Date and shall include the ownership,
operation and development of Real Property Assets and any other business activities of Borrower and
its Subsidiaries will remain incidental thereto. Notwithstanding the



70









 







foregoing, Borrower and its
Subsidiaries may acquire or maintain Permitted Holdings if and so long as the aggregate value of
Permitted Holdings, whether held directly or indirectly by Borrower does not exceed, at any time,
twenty-five percent (25%) of Total Asset Value of Borrower unless a greater percentage is approved
by the Majority Banks (which approval shall not be unreasonably withheld, conditioned or delayed).
For purposes of calculating the foregoing percentage, the value of Unimproved Assets shall be
calculated based upon the book value thereof, determined in accordance with GAAP.



               (i) No Liens. Borrower and General Partner shall not, and shall not allow any of their
Subsidiaries, Financing Partnerships or Joint Venture Subsidiaries to, (i) allow any Unencumbered
Property (or any equity interests in such Property that are owned directly or indirectly by
Borrower, General Partner or any Joint Venture Parent), that is necessary to comply with the
provisions of Section 5.8(e) hereof or any other financial covenant, to become subject to
a Lien that secures the Indebtedness of any Person, other than Permitted Liens, or (ii) in the
case of any Subsidiary, Financing Partnership or Joint Venture Subsidiary that owns an Unencumbered
Property that is necessary to comply with the provisions of Section 5.8(e) hereof or any other
financial covenant, to incur Indebtedness (other than trade payables incurred in the ordinary
course of business).



               (j) Unsecured Debt Yield. As of the last day of each fiscal quarter for the
immediately preceding consecutive four quarters, the ratio (expressed as a percentage) (the
“Unsecured Debt Yield”) of (i) Unencumbered Net Operating Cash Flow to (ii) Unsecured Debt (less
the sum of (x) the value of any Unrestricted Cash or Cash Equivalent owned by Borrower, not to
exceed $250,000,000 in the aggregate, and (y) $35,000,000) shall not be less than, (i) with respect
to the period commencing on the Effective Date and ending on the day immediately prior to the 18
month anniversary of the Effective Date, 11%; provided, however, that, in connection with a
Material Acquisition, for the four (4) consecutive quarters following such acquisition, the
Unsecured Debt Yield may be less than 11%, but in no event less than 10%, and (ii) with respect to
the period commencing on the 18 month anniversary of the Effective Date, 11.5%; provided, however,
that, in connection with a Material Acquisition, for the four (4) consecutive quarters following
such Material Acquisition, the Unsecured Debt Yield may be less than 11.5%, but in no event less
than 10.5%. For purposes of determining the Unsecured Debt Yield only, Unencumbered Net Operating
Income shall be adjusted to include as to any Unencumbered Property with respect to which a tenant
received any free rent during such period, the amount of such free rent as if the same had been
paid in cash by such tenant.



               (k) Calculation. Each of the foregoing ratios and financial requirements shall be
calculated as of the last day of each Fiscal Quarter.



          Section 5.9 Restriction on Fundamental Changes. (a) Neither the Borrower nor General Partner shall enter into any merger or consolidation
without obtaining the prior written consent thereto in writing of the Majority Banks, unless the
following criteria are met: (i) either (x) the Borrower or General Partner is the surviving entity,
or (y) the individuals constituting the General Partner’s board of directors or board of trustees
immediately prior to such merger or consolidation represent a majority of the surviving entity’s
board of directors or board of trustees after such merger or consolidation; and (ii) the entity
which is merged into Borrower or General Partner is predominantly in the commercial real estate
business. Nothing in




71









 







this Section shall be deemed to prohibit the sale or leasing of portions of
the Real Property Assets in the ordinary course of business.




               (b) The Borrower shall not amend its agreement of limited partnership or other organizational
documents in any manner that would have a Material Adverse Effect without the Majority Banks’
consent. Without limitation of the foregoing, no Person shall be admitted as a general partner of
the Borrower other than General Partner. General Partner shall not amend its articles of
incorporation, by-laws, or other organizational documents in any manner that would have a Material
Adverse Effect without the Majority Banks’ consent. No Qualified Borrower shall amend its
organizational documents in any manner that would have a Material Adverse Effect without the
Majority Banks’ consent. The Borrower shall not make any “in-kind” transfer of any of its property
or assets to any of its constituent partners if such transfer
would result in an Event of Default under Section 6.1(b) by reason of a breach of the
provisions of Section 5.8.



          Section 5.10 Changes in Business. (a) Except for Permitted Holdings and Foreign Property Interests, neither the Borrower, any
Qualified Borrower nor General Partner shall enter into any business which is substantially
different from that conducted by the Borrower or General Partner on the Closing Date after giving
effect to the transactions contemplated by the Loan Documents. The Borrower shall carry on its
business operations through the Borrower, its Consolidated Subsidiaries and its Investment
Affiliates.




               (b) Except for Permitted Holdings and Foreign Property Interests, Borrower shall not engage in
any line of business which is substantially different from the business conducted by the Borrower
on the Closing Date, which includes the ownership, operation and development of Real Property
Assets and the provision of services incidental thereto, whether directly or through its
Consolidated Subsidiaries and Investment Affiliates.



          Section 5.11 General Partner Status.




               (a) Status. General Partner shall at all times (i) remain a publicly traded company
listed for trading on the New York Stock Exchange, and (ii) maintain its status as a self-directed
and self-administered real estate investment trust under the Code.



               (b) Indebtedness. General Partner shall not, directly or indirectly, create, incur,
assume or otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:




                    (1) the Obligations; and




                    (2) Indebtedness of Borrower for which there is recourse to General Partner
which, after giving effect thereto, may be incurred or may remain outstanding
without giving rise to an Event of Default or Default under any provision of this
Article V.



               (c) Restriction on Fundamental Changes.



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                    (1) General Partner shall not have an investment in any Person other than (i)
Borrower or indirectly through Borrower, (ii) directly or indirectly in Financing
Partnerships, and (iii) the interests identified on Schedule 5.11(c)(1) as being
owned by General Partner.




                    (2) General Partner shall not acquire an interest in any Property other than
securities issued by Borrower and Financing Partnerships and the interests
identified on Schedule 5.11(c)(2) attached hereto.



               (d) Environmental Liabilities. Neither General Partner nor any of its Subsidiaries
shall become subject to any Environmental Claim which has a Material Adverse Effect, including,
without limitation, any arising out of or related to (i) the release or threatened release of any
Material of Environmental Concern into the environment, or any remedial action in response thereto,
or (ii) any violation of any Environmental Laws. Notwithstanding the foregoing provision, General
Partner shall have the right to contest in good faith any claim of violation of an Environmental
Law by appropriate legal proceedings and shall be entitled to postpone compliance with the
obligation being contested as long as (i) no Event of Default shall have occurred and be
continuing, (ii) General Partner shall have given Administrative Agent prior written notice of the
commencement of such contest, (iii) noncompliance with such Environmental Law shall not subject
General Partner or such Subsidiary to any criminal penalty or subject Administrative Agent or any
Bank to pay any civil penalty or to prosecution for a crime, and (iv) no portion of any Property
material to Borrower or its condition or prospects shall be in substantial danger of being sold,
forfeited or lost, by reason of such contest or the continued existence of the matter being
contested.



               (e) Disposal of Partnership Interests. General Partner will not directly or
indirectly convey, sell, transfer, assign, pledge or otherwise encumber or dispose of any of its
partnership interests in Borrower or any of its equity interest in any of the partners of the
Borrower as of the date hereof (except in connection with the dissolution or liquidation of such
partners of the Borrower or the redemption of interests in connection with stock repurchase
programs), except for the reduction of General Partner’s interest in the Borrower arising from
Borrower’s issuance of partnership interests in the Borrower or the retirement of preferred units
by Borrower. General Partner will continue to be the managing general partner of Borrower.



          Section 5.12 Other Indebtedness. Borrower and General Partner shall not allow any of their Subsidiaries, Financing Partnerships
or Joint Venture Subsidiaries that own, directly or indirectly, any Unencumbered Property to
directly or indirectly create, incur, assume or otherwise become or remain liable with respect to
any Indebtedness other than trade debt incurred in the ordinary course of business and Indebtedness
owing to Borrower or any Financing Partnership, if the resulting failure of such Property to
qualify as a Unencumbered Property would result in an Event of Default under Section 5.8.




          Section 5.13 Forward Equity Contracts. If Borrower shall enter into any forward equity contracts, Borrower may only settle the same by
delivery of stock, it being agreed that if Borrower shall settle the same with cash, the same shall
constitute an Event of Default hereunder unless Borrower shall have received the unanimous consent
of the Banks to settle such forward equity contracts with cash.




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          Section 5.14 Capital Funding Loans. Notwithstanding anything in this Agreement to the contrary, in the event that any Property
located outside the United States (each a “Non-US Property”) is owned by a Financing
Partnership (a “100% AMB Non-US Property Owner”), by a Joint Venture Subsidiary (a “JV
Non-US Property Owner”) or by a wholly-owned direct or indirect subsidiary of a Joint
Venture Subsidiary (a “Tiered Non-US Property Owner”; such Joint Venture Subsidiary is
hereinafter referred to as the “First Tier JV”; each entity through which the First Tier JV
indirectly owns a Tiered Non-US Property Owner is hereinafter referred to as an “Intermediate
Tier Entity”; and the Tiered Non-US Property Owners, the 100% AMB Non-US Property Owners and
the JV Non-US Property Owners are sometimes hereinafter referred to individually as a “Non-US
Property Owner” and collectively as the “Non-US Property Owners”) and the Non-US Property
Owner or, in the case of any Tiered Non-US Property Owner, the related First Tier JV or a related
Intermediate Tier Entity has incurred Indebtedness (whether or not such Indebtedness is secured by
a Lien against such Non-US Property and/or any direct or indirect equity interests in the Non-US
Property Owner) (each a “Capital Funding Loan”) held by





	 	(x)	 	in the case of a 100% AMB Non-US Property Owner, Borrower or any other
Financing Partnership, and
	 
	 	(y)	 	in the case of a JV Non-US Property Owner or a Tiered Non-US Property Owner,
either (AA) an entity (hereinafter an “International FinCo”) in which
Borrower’s Share is the same or greater than Borrower’s Share in such Non-US Property
Owner, or (BB) a Financing Partnership (or Borrower directly) and entities which are
not Financing Partnerships (including Persons who are not Affiliates of Borrower or
whose constituent entities include Persons who are not Affiliates of Borrower)
(“Joint Lenders”), provided that Borrower’s direct or indirect share of such
Indebtedness is the same or greater than Borrower’s Share of such Non-US Property
Owner,




then no such Capital Funding Loan or related Second Tier Funding Loan (as defined below) shall be
deemed to constitute Indebtedness for any purposes under this Agreement, any Lien securing such
Capital Funding Loan shall be a Permitted Lien and no Non-US Property to which such Capital Funding
Loan or Second Tier Funding Loan relates shall fail to be a Unencumbered Property solely because
the capital provided to the applicable Non-US Property Owner or related First Tier JV or
Intermediate Tier Entity was in the form of a Capital Funding Loan rather than a contribution to
the equity of such Non-US Property Owner, First Tier JV or Intermediate Tier Entity, so long as





	 	(a)	 	in the case of a Capital Funding Loan made by an International FinCo, the sale
of such Capital Funding Loan, or the sale or refinancing of any interest in the Non-US
Property or any direct or indirect equity interests in the Non-US Property Owner
acquired as a result of the exercise of any remedies in connection with the enforcement
of such Capital Funding Loan, is Substantially Controlled by Borrower (as defined
below),
	 
	 	(b)	 	in the case of a Capital Funding Loan made by Joint Lenders, any remedies in
connection with enforcement of such Capital Funding Loan may only be exercised by such
Joint Lenders concurrently and, in the event of any such




74









 






	 	 	 	exercise and the Joint Lenders
acquire such Non-US Property or any direct or indirect equity interests in such Non-US
Property Owner, the sale or refinancing of such Non-US Property and, if the direct or
indirect equity interests in such
Non-US Property Owner are held jointly, such equity interests will be Substantially
Controlled by Borrower, and
	 
	 	(c)	 	no interest in any Capital Funding Loan or Second Tier Funding Loan held
directly or indirectly by Borrower is subject to any Lien (other than a Permitted Lien)
or any Negative Pledge.




For purposes of the foregoing, an action will be “Substantially Controlled by Borrower” if such
action is substantially controlled directly by Borrower or through one or more Financing
Partnerships either by agreement of the parties, through the provisions of a Person’s formation
documents or otherwise. For purposes of the preceding sentence, an action shall be deemed to be
substantially controlled directly by Borrower or through one or more Financing Partnerships if
Borrower or such Financing Partnerships have the ability to exercise a usual and customary buy-sell
right in the event of a disagreement regarding such action. As used herein the term “Second
Tier Funding Loan” means any loans made to an International FinCo by Borrower, any Financing
Partnerships of Borrower and/or any other Person with an equity interest in such International
FinCo (or affiliates of such other Person) so long as (x) Borrower’s direct or indirect share of
the combined loans of Borrower, any Financing Partnership and/or such other Persons (or affiliates
thereof) to the International FinCo is the same or greater than Borrower’s Share of the applicable
Non-US Property Owner, and (y) all such loans are pari passu and any remedies that may be exercised
in connection with enforcement of such loans may only be exercised concurrently or not at all.




ARTICLE VI




DEFAULTS



          Section 6.1 Events of Default. An “Event of Default” shall have occurred if one or more of the following events shall have
occurred and be continuing:




               (a) the Borrower shall fail to (i) pay when due any principal of any Loan, or (ii) the
Borrower shall fail to pay when due interest on any Loan or any fees or any other amount payable to
Administrative Agent or the Banks hereunder and the same shall continue for a period of five (5)
days after the same becomes due;



               (b) the Borrower shall fail to observe or perform any covenant contained in Section 5.8,
Section 5.9(a) or (b), Section 5.10, Section 5.11(a), (b) or (c), Section 5.12 or Section 5.13;



               (c) the Borrower shall fail to observe or perform any covenant or agreement contained in this
Agreement (other than those covered by clause (a), (b), (e), (f), (g), (h), (j), (n) or (o) of this
Section 6.1) for 30 days after written notice thereof has been given to the Borrower by the
Administrative Agent; or if such default is of such a nature that it cannot with reasonable effort
be completely remedied within said period of thirty (30) days such



75









 







additional period of time as may
be reasonably necessary to cure same, provided Borrower
commences such cure within said thirty (30) day period and diligently prosecutes same, until
completion, but in no event shall such extended period exceed ninety (90) days;



               (d) any representation, warranty, certification or statement made by the Borrower in this
Agreement or in any certificate, financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect when made (or deemed made)
and, with respect to such representations, warranties, certifications or statements not known by
the Borrower at the time made or deemed made to be incorrect, the defect causing such
representation or warranty to be incorrect when made (or deemed made) is not removed within thirty
(30) days after written notice thereof from Administrative Agent to Borrower;



               (e) the Borrower, any Qualified Borrower, the General Partner, any Subsidiary or any
Investment Affiliate shall default in the payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) of any amount owing in respect of any Recourse Debt
(other than the Obligations) for which the aggregate outstanding principal amounts exceed Fifty
Million Dollars ($50,000,000) and such default shall continue beyond the giving of any required
notice and the expiration of any applicable grace period and such default has not been waived, in
writing, by the holder of any such Debt; or the Borrower, any Qualified Borrower, the General
Partner, any Subsidiary or any Investment Affiliate shall default in the performance or observance
of any obligation or condition with respect to any such Recourse Debt or any other event shall
occur or condition exist beyond the giving of any required notice and the expiration of any
applicable grace period, if the effect of such default, event or condition is to accelerate the
maturity of any such indebtedness or to permit (without any further requirement of notice or lapse
of time) the holder or holders thereof, or any trustee or agent for such holders, to accelerate the
maturity of any such indebtedness;



               (f) the Borrower or the General Partner shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidate, custodian or other similar official of it or any substantial
part of its property, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any action to authorize any of the foregoing;



               (g) an involuntary case or other proceeding shall be commenced against the Borrower or the
General Partner seeking liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 90 days; or an order for relief shall be entered against
the Borrower or the General Partner under the federal bankruptcy laws as now or hereafter in
effect;



               (h) intentionally omitted;



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               (i) one or more final, non-appealable judgments or decrees in an aggregate amount of
Thirty-Five Million Dollars ($35,000,000) or more shall be entered by a court or courts of
competent jurisdiction against the General Partner, the Borrower or, to the extent of any recourse
to the General Partner or the Borrower, any Qualified Borrower or any General Partner’s or
Borrower’s Consolidated Subsidiaries (other than any judgment as to which, and only to the extent,
a reputable insurance company has acknowledged coverage of such claim in writing) and (i) any such
judgments or decrees shall not be stayed, discharged, paid, bonded or vacated within thirty (30)
days or (ii) enforcement proceedings shall be commenced by any creditor on any such judgments or
decrees;



               (j) there shall be a change in the majority of the Board of Directors of the General Partner
during any twelve (12) month period, excluding any change in directors resulting from (x) the death
or disability of any director, or (y) satisfaction of any requirement for the majority of the
members of the board of directors or trustees of the General Partner to qualify under applicable
law as independent directors or (z) the replacement of any director who is an officer or employee
of the General Partner or an affiliate of the General Partner with any other officer or employee of
the General Partner or an affiliate of the General Partner;



               (k) any Person (including affiliates of such Person) or “group” (as such term is defined in
applicable federal securities laws and regulations) shall acquire more than thirty percent (30%) of
the common shares of the General Partner;



               (l) the General Partner shall cease at any time to qualify as a real estate investment trust
under the Code;



               (m) if any Termination Event with respect to a Plan, Multiemployer Plan or Benefit Arrangement
shall occur as a result of which Termination Event or Events any member of the ERISA Group has
incurred or may incur any liability to the PBGC or any other Person and the sum (determined as of
the date of occurrence of such Termination Event) of the insufficiency of such Plan, Multiemployer
Plan or Benefit Arrangement and the insufficiency of any and all other Plans, Multiemployer Plans
and Benefit Arrangements with respect to which such a Termination Event shall occur and be
continuing (or, in the case of a Multiple Employer Plan with respect to which a Termination Event
described in clause (ii) of the definition of Termination Event shall occur and be continuing and
in the case of a liability with respect to a Termination Event which is or could be a liability of
the Borrower or the General Partner rather than a liability of the Plan, the liability of the
Borrower or the General Partner) is equal to or greater than $20,000,000 and which the
Administrative Agent reasonably determines will have a Material Adverse Effect;



               (n) if, any member of the ERISA Group shall commit a failure described in Section 302(f)(1) of
ERISA or Section 412(n)(1) of the Code and the amount of the lien determined under Section
302(f)(3) of ERISA or Section 412(n)(3) of the Code that could reasonably be expected to be imposed
on any member of the ERISA Group or their assets in respect of such failure shall be equal to or
greater than $20,000,000 and which the Administrative Agent reasonably determines will have a
Material Adverse Effect;



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               (o) at any time, for any reason the Borrower or any Qualified Borrower seeks to repudiate its
obligations under any Loan Document or the General Partner seeks to repudiate its obligations under
the Guaranty.



               (p) a default beyond any applicable notice or grace period under any of the other Loan
Documents;



               (q) any assets of Borrower or any Qualified Borrower shall constitute “assets” (within the
meaning of ERISA or Section 4975 of the Code, including but not limited to 29 C.F.R. § 2510.3-101
or any successor regulation thereto) of an “employee benefit plan” within the meaning of Section
3(3) of ERISA or a “plan” within the meaning of Section 4975(e)(1) of the Code; or



               (r) the Note, the Loan, the Obligations, the Guaranty or any of the Loan Documents or the
exercise of any of the Administrative Agent’s or any of the Bank’s rights in connection therewith
shall constitute a prohibited transaction under ERISA and/or the Code.



          Section 6.2 Rights and Remedies. (a) Upon the occurrence of any Event of Default described in Sections 6.1(f), (g), (o) or (q),
the Commitments and the Swingline Commitment shall immediately terminate and the unpaid principal
amount of, and any and all accrued interest on, the Loans and any and all accrued fees and other
Obligations hereunder shall automatically become immediately due and payable, with all additional
interest from time to time accrued thereon and without presentation, demand, or protest or other
requirements of any kind (including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and notice of acceleration), all of which are
hereby expressly waived by the Borrower for itself and on behalf of any Qualified Borrower; and
upon the occurrence and during the continuance of any other Event of Default, the Administrative
Agent, following consultation with the Banks, may (and upon the demand of the Majority Banks
shall), by written notice to the Borrower, in addition to the exercise of all of the rights and
remedies permitted the Administrative Agent and the Banks at law or equity or under any of the
other Loan Documents, declare that the Commitments are terminated and declare the unpaid principal
amount of and any and all accrued and unpaid interest on the Loans and any and all accrued fees and
other Obligations hereunder to be, and the same shall thereupon be, immediately due and payable
with all additional interest from time to time accrued thereon and (except as otherwise provided in
the Loan Documents) without presentation, demand, or protest or other requirements of any kind
(including, without limitation, valuation and appraisement, diligence, presentment, notice of
intent to demand or accelerate and notice of acceleration), all of which are hereby expressly
waived by the Borrower for itself and on behalf of any Qualified Borrower.




               (b) Notwithstanding anything to the contrary contained in this Agreement or in any other Loan
Document, the Administrative Agent and the Banks each agree that any exercise or enforcement of the
rights and remedies granted to the Administrative Agent or the Banks under this Agreement or at law
or in equity with respect to this Agreement or any other Loan Documents shall be commenced and
maintained by the Administrative Agent on behalf of the Administrative Agent and/or the Banks. The
Administrative Agent shall act at the
direction of the Majority Banks in connection with the exercise of any and all remedies at
law, in equity or under any of the Loan Documents or, if the Majority Banks are unable to reach



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agreement, then, from and after an Event of Default, the Administrative Agent may pursue such
rights and remedies as it may determine.




          Section 6.3 Notice of Default. The Administrative Agent shall give notice to the Borrower under Section 6.1(c) and 6.1(d)
promptly upon being requested to do so by the Majority Banks and shall thereupon notify all the
Banks thereof. The Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default (other than nonpayment of principal of or interest on
the Loans) unless Administrative Agent has received notice in writing from a Bank or Borrower
referring to this Agreement or the other Loan Documents, describing such event or condition.
Should Administrative Agent receive notice of the occurrence of an Default or Event of Default
expressly stating that such notice is a notice of an Default or Event of Default, or should
Administrative Agent send Borrower a notice of Default or Event of Default, Administrative Agent
shall promptly give notice thereof to each Bank.




          Section 6.4 Actions in Respect of Letters of Credit. (a) If, at any time and from time to time, any Letter of Credit shall have been issued
hereunder and an Event of Default shall have occurred and be continuing, then, upon the occurrence
and during the continuation thereof, the Administrative Agent, after consultation with the Banks,
may, and upon the demand of the Majority Banks shall, whether in addition to the taking by the
Administrative Agent of any of the actions described in this Article or otherwise, make a demand
upon the Borrower to, and forthwith upon such demand (but in any event within ten (10) days after
such demand) the Borrower shall, pay to the Administrative Agent, on behalf of the Banks, in same
day funds at the Administrative Agent’s office designated in such demand, for deposit in a special
cash collateral account (the “Letter of Credit Collateral Account”) to be maintained in the
name of the Administrative Agent (on behalf of the Banks) and under its sole dominion and control
at such place as shall be designated by the Administrative Agent, an amount equal to the amount of
the Letter of Credit Usage under the Letters of Credit. Interest shall accrue on the Letter of
Credit Collateral Account at a rate equal to the rate on overnight funds.




               (b) The Borrower hereby pledges, assigns and grants to the Administrative Agent, as
administrative agent for its benefit and the ratable benefit of the Banks a lien on and a security
interest in, the following collateral (the “Letter of Credit Collateral”):




(i) the Letter of Credit Collateral Account, all cash deposited therein and all
certificates and instruments, if any, from time to time representing or evidencing
the Letter of Credit Collateral Account;




(ii) all notes, certificates of deposit and other instruments from time to time
hereafter delivered to or otherwise possessed by the Administrative Agent for or on
behalf of the Borrower in substitution for or in respect of any or all of the then
existing Letter of Credit Collateral;




(iii) all interest, dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of or in exchange for
any or all of the then existing Letter of Credit Collateral; provided that,
if no Event of Default has occurred and is continuing, any interest, dividends or
other



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earnings received with respect to the Letter of Credit Collateral shall be
distributed to Borrower on a monthly basis; and




(iv) to the extent not covered by the above clauses, all proceeds of any or all of
the foregoing Letter of Credit Collateral.


The lien and security interest granted hereby secures the payment of all obligations of the
Borrower now or hereafter existing hereunder and under any other Loan Document.




               (c) The Borrower hereby authorizes the Administrative Agent for the ratable benefit of the
Banks to apply, from time to time after funds are deposited in the Letter of Credit Collateral
Account, funds then held in the Letter of Credit Collateral Account to the payment of any amounts,
in such order as the Administrative Agent may elect, as shall have become due and payable by the
Borrower to the Banks in respect of the Letters of Credit.



               (d) Neither the Borrower nor any Person claiming or acting on behalf of or through the
Borrower shall have any right to withdraw any of the funds held in the Letter of Credit Collateral
Account, except as provided in Sections 6.4(b) and (h) hereof.



               (e) The Borrower agrees that it will not (i) sell or otherwise dispose of any interest in the
Letter of Credit Collateral or (ii) create or permit to exist any lien, security interest or other
charge or encumbrance upon or with respect to any of the Letter of Credit Collateral, except for
the security interest created by this Section 6.4.



               (f) If any Event of Default shall have occurred and be continuing:




 (i) The Administrative Agent may, in its sole discretion, without notice to the
Borrower except as required by law and at any time from time to time, charge, set
off or otherwise apply all or any part of first, (x) amounts previously
drawn on any Letter of Credit that have not been reimbursed by the Borrower and (y)
any Letter of Credit Usage described in clause (ii) of the definition thereof that
are then due and payable and second, any other unpaid Obligations then due
and payable against the Letter of Credit Collateral Account or any part thereof, in
such order as the Administrative Agent shall elect. The rights of the
Administrative Agent under this Section 6.4 are in addition to any rights and
remedies which any Bank may have.




 (ii) The Administrative Agent may also exercise, in its sole discretion, in respect
of the Letter of Credit Collateral Account, in addition to the other rights and
remedies provided herein or otherwise available to it, all the rights and remedies
of a secured party upon default under the Uniform Commercial Code in effect in the
State of New York at that time.



               (g) The Administrative Agent shall be deemed to have exercised reasonable care in the custody
and preservation of the Letter of Credit Collateral if the Letter of Credit Collateral is accorded
treatment substantially equal to that which the Administrative Agent accords its own property, it
being understood that, assuming such treatment, the Administrative Agent shall not have any
responsibility or liability with respect thereto.



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               (h) At such time as all Events of Default have been cured or waived in writing, all amounts
remaining in the Letter of Credit Collateral Account shall be promptly returned to the Borrower,
and, in the case of Letters of Credit maturing after the Maturity Date, upon the return of any such
Letter of Credit, any amount attributable to such Letter of Credit shall be promptly returned to
the Borrower. Absent such cure or written waiver, any surplus of the funds held in the Letter of
Credit Collateral Account and remaining after payment in full of all of the Obligations of the
Borrower hereunder and under any other Loan Document after the Maturity Date shall be paid to the
Borrower or to whomsoever may be lawfully entitled to receive such surplus.



          Section 6.5 Distribution of Proceeds after Default. Notwithstanding anything contained herein to the contrary but subject to the provisions of
Section 9.16 hereof, from and after an Event of Default, to the extent proceeds are received by
Administrative Agent, such proceeds will be distributed to the Banks pro rata in accordance with
the unpaid principal amount of the Loans (giving effect to any participations granted therein
pursuant to Section 2.3 and Section 9.4).




ARTICLE VII




THE AGENTS



          Section 7.1 Appointment and Authorization. Each Bank irrevocably appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents
as are delegated to the Administrative Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto. Except as set forth in Sections 7.8 and 7.9 hereof,
the provisions of this Article VII are solely for the benefit of Administrative Agent and the
Banks, and Borrower shall not have any rights to rely on or enforce any of the provisions hereof.
In performing its functions and duties under this Agreement, Administrative Agent shall each act
solely as an agent of the Banks and do not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for the Borrower.




          Section 7.2 Agency and Affiliates. JPMorgan Chase Bank, N.A. and Bank of America, N.A. each has the same rights and powers under
this Agreement as any other Bank and may exercise or refrain from exercising the same as though it
were not the Administrative Agent or Syndication Agent, as applicable, and JPMorgan Chase Bank,
N.A. and Bank of America, N.A. and each of their affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with the Borrower, General Partner or any
Subsidiary or affiliate of the Borrower as if they were not the Administrative
Agent or Syndication Agent, as applicable, hereunder, and the term “Bank” and “Banks” shall include
each of JPMorgan Chase Bank, N.A. and Bank of America, N.A., each in its individual capacity.




          Section 7.3 Action by Agents. The obligations of each of the Agents hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, each of the Agents shall not be required to take
any action with respect to any Default or Event of Default, except as expressly provided in Article
VI. The duties of each Agent shall




81









 







be administrative in nature. Subject to the provisions of
Sections 7.1, 7.5 and 7.6, each Agent shall administer the Loans in the same manner as each
administers its own loans.




          Section 7.4 Consultation with Experts. As between Administrative Agent on the one hand and the Banks on the other hand, the
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.




          Section 7.5 Liability of Agents. As between each Agent on the one hand and the Banks on the other hand, none of the Agents nor
any of their affiliates nor any of their respective directors, officers, agents or employees shall
be liable for any action taken or not taken by it in connection herewith (i) with the consent or at
the request of the Majority Banks or (ii) in the absence of its own gross negligence or willful
misconduct. As between each Agent on the one hand and the Banks on the other hand, none of the
Agents nor any of their respective 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 this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the Borrower; (iii) the
satisfaction of any condition specified in Article III, except receipt of items required to be
delivered to such Agent, or (iv) the validity, effectiveness or genuineness of this Agreement, the
other Loan Documents or any other instrument or writing furnished in connection herewith. As
between each Agent on the one hand and the Banks on the other hand, none of the Agents shall incur
any liability by acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be
signed by the proper party or parties.




          Section 7.6 Indemnification. Each Bank shall, ratably in accordance with its Commitment, indemnify the Agents and their
affiliates and their respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including, without limitation, counsel fees
and disbursements), claim, demand, action, loss or liability (except such as result from such
indemnitee’s gross negligence or willful misconduct) that such indemnitee may suffer or incur in
connection with its duties as Agent under this Agreement, the other Loan Documents or any
action taken or omitted by such indemnitee hereunder. In the event that any Agent shall,
subsequent to its receipt of indemnification payment(s) from Banks in accordance with this section,
recoup any amount from the Borrower, or any other party liable therefor in connection with such
indemnification, such Agent shall reimburse the Banks which previously made the payment(s) pro
rata, based upon the actual amounts which were theretofore paid by each Bank. Each Agent shall
reimburse such Banks so entitled to reimbursement within two (2) Business Days of its receipt of
such funds from the Borrower or such other party liable therefor.




          Section 7.7 Credit Decision. Each Bank acknowledges that it has, independently and without reliance upon the Administrative
Agent, the Syndication Agent or any other Bank, and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Bank also acknowledges that it will, independently and without reliance upon the
Administrative Agent, Syndication Agent or any other Bank, and based on such documents and
information as it shall deem




82









 







appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Agreement.




          Section 7.8 Successor Agents. The Administrative Agent or the Syndication Agent may resign at any time by giving notice
thereof to the Banks, the Borrower and each other and the Administrative Agent or the Syndication
Agent, as applicable, shall resign in the event its Commitment (without participants) is reduced to
less than Ten Million Dollars ($10,000,000) unless as a result of a cancellation or reduction in
the aggregate Commitments. Upon any such resignation, the Majority Banks shall have the right to
appoint a successor Administrative Agent or Syndication Agent, as applicable, which successor
Administrative Agent or successor Syndication Agent (as applicable) shall, provided no Event of
Default has occurred and is then continuing, be subject to Borrower’s approval, which approval
shall not be unreasonably withheld or delayed. If no successor Administrative Agent or Syndication
Agent (as applicable) shall have been so appointed by the Majority Banks and approved by the
Borrower, and shall have accepted such appointment, within 30 days after the retiring
Administrative Agent or Syndication Agent (as applicable) gives notice of resignation, then the
retiring Administrative Agent or retiring Syndication Agent (as applicable) may, on behalf of the
Banks, appoint a successor Administrative Agent or Syndication Agent (as applicable), which shall
be the Administrative Agent, Documentation Agent or the Syndication Agent as the case may be, who
shall act until the Majority Banks shall appoint an Administrative Agent or Syndication Agent. Any
appointment of a successor Administrative Agent or Syndication Agent by Majority Banks or the
retiring Administrative Agent or the Syndication Agent pursuant to the preceding sentence shall,
provided no Event of Default has occurred and is then continuing, be subject to the Borrower’s
approval, which approval shall not be unreasonably withheld or delayed. Upon the acceptance of its
appointment as the Administrative Agent or Syndication Agent hereunder by a successor
Administrative Agent or successor Syndication Agent, as applicable, such successor Administrative
Agent or successor Syndication Agent, as applicable, shall thereupon succeed to and become vested
with all the rights and duties of the retiring Administrative Agent or retiring Syndication Agent,
as applicable, and the retiring Administrative Agent or the retiring Syndication Agent, as
applicable, shall be discharged from its duties and obligations hereunder. The rights and duties
of the
Administrative Agent to be vested in any successor Administrative Agent shall include, without
limitation, the rights and duties as Swingline Lender. After any retiring Administrative Agent’s
or retiring Syndication Agent’s resignation hereunder, the provisions of this Article shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative
Agent or the Syndication Agent, as applicable. For gross negligence or willful misconduct, as
determined by all the Banks (excluding for such determination Administrative Agent or Syndication
Agent in its capacity as a Bank, as applicable), or if the Administrative Agent becomes a
Defaulting Lender (as determined by the Majority Banks other than the Administrative Agent in its
capacity as a Bank, and the Borrower), Administrative Agent or Syndication Agent may be removed at
any time by giving at least thirty (30) Business Days’ prior written notice to Administrative Agent
or Syndication Agent and Borrower. Such resignation or removal shall take effect upon the
acceptance of appointment by a successor Administrative Agent, Documentation Agent or Syndication
Agent, as applicable, in accordance with the provisions of this Section 7.8.




          Section 7.9 Consents and Approvals. All communications from Administrative Agent to the Banks requesting the Banks’ determination,
consent, approval or




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disapproval (i) shall be given in the form of a written notice to each Bank,
(ii) shall be accompanied by a description of the matter or item as to which such determination,
approval, consent or disapproval is requested, or shall advise each Bank where such matter or item
may be inspected, or shall otherwise describe the matter or issue to be resolved, (iii) shall
include, if reasonably requested by a Bank and to the extent not previously provided to such Bank,
written materials and a summary of all oral information provided to Administrative Agent by
Borrower in respect of the matter or issue to be resolved, (iv) shall include Administrative
Agent’s recommended course of action or determination in respect thereof, and (v) shall include the
following clause in capital letters, “FAILURE TO RESPOND TO THIS NOTICE WITHIN THE BANK REPLY
PERIOD SHALL BE DEEMED CONSENT TO THE RECOMMENDATION SET FORTH HEREIN”. Each Bank shall reply
promptly, but in any event within ten (10) Business Days after receipt of the request therefor from
Administrative Agent (the “Bank Reply Period”). Unless a Bank shall give written notice to
Administrative Agent that it objects to the recommendation or determination of Administrative Agent
(together with a written explanation of the reasons behind such objection) within the Bank Reply
Period, such Bank shall be deemed to have approved of or consented to such recommendation or
determination. With respect to decisions requiring the approval of the Majority Banks or all the
Banks, Administrative Agent shall submit its recommendation or determination for approval of or
consent to such recommendation or determination to all Banks and upon receiving the required
approval or consent (or deemed approval or consent, as the case may be) shall follow the course of
action or determination of the Majority Banks or all the Banks (and each non-responding Bank shall
be deemed to have concurred with such recommended course of action), as the case may be.




ARTICLE VIII




CHANGE IN CIRCUMSTANCES



          Section 8.1 Basis for Determining Interest Rate Inadequate or Unfair. If on or prior to the first day of any Interest Period for any Euro-Dollar Borrowing or Money
Market IBOR Loan the Administrative Agent determines in good faith that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for such Interest Period, the
Administrative Agent shall forthwith give notice thereof to the Borrower and the Banks, whereupon
until the Administrative Agent notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Banks to make Euro-Dollar Loans shall be
suspended. In such event (a) unless the Borrower notifies the Administrative Agent on or before
the second (2nd) Euro-Dollar Business Day before, but excluding, the date of (i) any
Euro-Dollar Borrowing for Dollars for which a Notice of Borrowing has previously been given that it
elects not to borrow on such date, such Borrowing shall instead be made as a Base Rate Borrowing,
or (ii) any Money Market IBOR Borrowing for which a Notice of Money Market Borrowing has previously
been given, the Money Market IBOR Loans comprising such Borrowing shall bear interest for each day
from and including the first day to but excluding the last day of the Interest Period applicable
thereto at the Base Rate for such day, and (b) any Notice of Borrowing for a Euro-Dollar Borrowing
denominated in an Alternate Currency shall be ineffective.




          Section 8.2 Illegality. If, on or after the date of this Agreement, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation,




84









 







or any change in the
interpretation or administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance by any Bank (or its
Euro-Dollar Lending Office) with any request or directive (whether or not having the force of law)
made after the Closing Date of any such authority, central bank or comparable agency shall make it
unlawful for any Bank (or its Euro-Dollar Lending Office) (x) to make, maintain or fund its
Euro-Dollar Loans, or (y) to participate in any Letter of Credit issued by the Fronting Bank, or,
with respect to the Fronting Bank, to issue a Letter of Credit, the Administrative Agent shall
forthwith give notice thereof to the other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Administrative Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Bank in the case of the event described in
clause (x) above to make Euro-Dollar Loans, or in the case of the event described in clause (y)
above, to participate in any Letter of Credit issued by the Fronting Bank or, with respect to the
Fronting Bank, to issue any Letter of Credit, shall be suspended. With respect to Euro-Dollar
Loans, before giving any notice to the Administrative Agent pursuant to this Section, such Bank
shall designate a different Euro-Dollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. If such Bank shall determine that it may not lawfully continue to maintain and fund any of
its outstanding Euro-Dollar Loans to maturity and shall so specify in such notice, the Borrower
shall be deemed to have delivered a Notice of Interest Rate Election and such Euro-Dollar Loan
shall be converted as of such date to a Base Rate Loan (without payment of any amounts that
Borrower would otherwise be obligated to pay pursuant to Section 2.14 hereof with respect to Loans
converted pursuant to this Section 8.2) in an equal principal amount from such Bank (on which
interest and principal shall be payable contemporaneously with the related Euro-Dollar Loans of the
other Banks), and such Bank shall make such a Base Rate Loan.




          If at any time, it shall be unlawful for any Bank to make, maintain or fund its Euro-Dollar
Loans, the Borrower shall have the right, upon five (5) Business Days’ notice to the Administrative
Agent, to either (x) cause a bank, reasonably acceptable to the Administrative Agent, to offer to
purchase the Commitments of such Bank for an amount equal to such Bank’s outstanding Loans,
together with accrued and unpaid interest thereon, and to become a Bank hereunder, or obtain the
agreement of one or more existing Banks to offer to purchase the Commitments of such Bank for such
amount, which offer such Bank is hereby required to accept, or (y) to repay in full all Loans then
outstanding of such Bank, together with interest due thereon and any and all fees due hereunder,
upon which event, such Bank’s Commitments shall be deemed to be canceled pursuant to Section
2.11(c).




          Section 8.3 Increased Cost and Reduced Return.




               (a) If, on or after (x) the date hereof in the case of Committed Loans made pursuant to
Section 2.1, or (y) the date of the related Money Market Quote (in each case, the “Loan
Effective Date”), in the case of any Money Market Loan, the adoption or phase in of any
applicable law, rule or regulation, or any change in any applicable law, rule, directive,
guideline, decision, or regulation, or any change in the interpretation, re-interpretation,
application, or administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive (whether or not having the force of



85









 







law)
made at the Closing Date of any such authority, central bank or comparable agency shall impose,
modify or deem applicable any reserve (including, without limitation, any such requirement imposed
by the Board of Governors of the Federal Reserve System (but excluding with respect to any
Euro-Dollar Loan any such requirement reflected in an applicable Euro-Dollar Reserve Percentage)),
special deposit, insurance assessment or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Bank (or its Applicable Lending Office) or shall
impose on any Bank (or its Applicable Lending Office) or on the interbank market any other
condition materially more burdensome in nature, extent or consequence than those in existence as of
the Loan Effective Date affecting such Bank’s Euro-Dollar Loans, its Note, or its obligation to
make Euro-Dollar Loans, and the result of any of the foregoing is to increase the cost to such Bank
(or its Applicable Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce the
amount of any sum received or receivable by such Bank (or its Applicable Lending Office) under this
Agreement or under its Note with respect to such Euro-Dollar Loans, by an amount deemed by such
Bank to be material, then, within 15 days after demand by such Bank (with a copy to the
Administrative Agent), the Borrower shall pay to such Bank such additional amount or amounts (based
upon a reasonable allocation thereof by such Bank to the Euro-Dollar Loans made by such Bank
hereunder) as will compensate such Bank for such increased cost or reduction to the extent such
Bank generally imposes such additional amounts on other borrowers of such Bank in similar
circumstances.



               (b) If any Bank shall have reasonably determined that, after the date hereof, the adoption of
any applicable law, rule or regulation regarding capital adequacy, or any change in any such law,
rule or regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank with any request or
directive regarding capital adequacy (whether or not having the force of law) made after the
Closing Date of any such authority, central bank or comparable agency, has or would have the effect
of reducing the rate of return on capital of such Bank (or its Parent) as a consequence of such
Bank’s obligations hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into consideration its
policies with respect to capital adequacy) by an amount reasonably deemed by such Bank to be
material, then from time to time, within 15 days after demand by such Bank (with a copy to the
Administrative Agent), the Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction to the extent such Bank generally
imposes such additional amounts on other borrowers of such Bank in similar circumstances.



               (c) Each Bank will promptly notify the Borrower and the Administrative Agent of any event of
which it has knowledge, occurring after the date hereof, which will entitle such Bank to
compensation pursuant to this Section and will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the amount of, such compensation and will not,
in the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall fail to notify Borrower of any such event within ninety (90) days following the end of the
month during which such event occurred, then Borrower’s liability for any amounts described in this
Section incurred by such Bank as a result of such event shall be limited to those attributable to
the period occurring subsequent to the ninetieth (90th) day prior to, but excluding, the
date upon which such Bank actually notified Borrower of the occurrence of such event. A
certificate of any Bank claiming compensation



86









 







under this Section and setting forth a reasonably
detailed calculation of the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of demonstrable error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.



               (d) If at any time, any Bank shall be owed amounts pursuant to this Section 8.3, the Borrower
shall have the right, upon five (5) Business Days’ notice to the Administrative Agent to either (x)
cause a bank, reasonably acceptable to the Administrative Agent, to offer to purchase the
Commitments of such Bank for an amount equal to such Bank’s outstanding Loans (excluding, at the
Borrower’s option, any Money Market Loans held by such Bank), and to become a Bank hereunder, or to
obtain the agreement of one or more existing Banks to offer to purchase the Commitments of such
Bank for such amount, which offer such Bank is hereby required to accept, or (y) to repay in full
all Loans then outstanding of such Bank (excluding, at the Borrower’s option, any Money Market
Loans held by such Bank), together with interest and all other amounts due thereon, upon which
event, such Bank’s Commitment shall be deemed to be canceled pursuant to Section 2.11(c).



          Section 8.4 Taxes.




               (a) Any and all payments by the Borrower or any Qualified Borrower to or for the account of
any Bank or the Administrative Agent hereunder or under any other Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank and the Administrative Agent, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such
Bank or the Administrative Agent (as the case may be) is organized or any political subdivision
thereof and, in the case of each Bank, taxes imposed on its income, and franchise or similar taxes
imposed on it, by the jurisdiction of such Bank’s Applicable Lending Office or any political
subdivision thereof or by any other jurisdiction (or any political subdivision thereof) as a result
of a present or former connection between such Bank or Administrative Agent and such other
jurisdiction or by the United States (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to as
“Non-Excluded Taxes”). If the Borrower or any Qualified Borrower shall be required by law
to deduct any Non-Excluded Taxes from or in respect of any sum payable hereunder or under any Note
or Letter of Credit, (i) the sum payable shall be increased as necessary so that after making all
required deductions (including, without limitation, deductions applicable to additional sums
payable under this Section 8.4) such Bank, the Fronting Bank or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower or Qualified Borrower shall make such deductions, (iii) the Borrower or
Qualified Borrower shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law and (iv) the Borrower or Qualified Borrower shall
furnish to the Administrative Agent, at its address referred to in Section 9.1, the original or a
certified copy of a receipt evidencing payment thereof.



               (b) In addition, the Borrower agrees to pay any present or future stamp or documentary taxes
and any other excise or property taxes, or charges or similar levies which arise from any payment
made hereunder or under any Note or the Letter of Credit or from the



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execution or delivery of, or
otherwise with respect to, this Agreement or any Note or the Letter of Credit (hereinafter referred
to as “Other Taxes”).



               (c) In the event that Non-Excluded Taxes not imposed on the Closing Date are imposed, or
Non-Excluded Taxes imposed on the Closing Date increase, the applicable Bank shall notify the
Administrative Agent and the Borrower of such event in writing within a reasonable period following
receipt of knowledge thereof. If such Bank shall fail to notify Borrower of any such event within
ninety (90) days following the end of the month during which such event occurred, then Borrower’s
or Qualified Borrower’s liability for such additional Non-Excluded Taxes incurred by such Bank as a
result of such event (including payment of a make-whole amount under Section 8.4(a)(i)) shall be
limited to those attributable to the period occurring subsequent to the ninetieth (90th)
day prior to, but excluding, the date upon which such Bank actually notified Borrower of the
occurrence of such event.



               (d) The Borrower agrees to indemnify each Bank, the Fronting Bank and the Administrative Agent
for the full amount of Non-Excluded Taxes or Other Taxes (including, without limitation, any
Non-Excluded Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.4) paid by such Bank, the Fronting Bank or the Administrative Agent (as the case may
be) and, so long as such Bank, the Fronting Bank or Administrative Agent has promptly paid any such
Non-Excluded Taxes or Other Taxes, any liability for penalties and interest arising therefrom or
with respect thereto. This indemnification shall be made within 15 days from the date such Bank,
the Fronting Bank or the Administrative Agent (as the case may be) makes demand therefor.



               (e) Each Bank organized under the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this Agreement in the case of each Bank listed
on the signature pages hereof and on or prior to the date on which it becomes a Bank in the case of
each other Bank, shall provide the Borrower with (A) two duly completed copies of Internal Revenue
Service Form 1001 or any successor form prescribed by the Internal Revenue Service, and (B) an
Internal Revenue Service Form W-8BEN or W-8ECI, as appropriate, or any successor form prescribed by
the Internal Revenue Service, and shall provide Borrower with two further copies of any such form
or certification on or before the date that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a change in the most recent form
previously delivered by it to Borrower, certifying (i) in the case of a Form 1001, that such Bank
is entitled to benefits under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct of a trade or
business in the United States, and (ii) in the case of a Form W-8BEN or W-8ECI, that it is entitled
to an exemption from United States backup withholding tax. If the form provided by a Bank at the
time such Bank first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded
from “Non-Excluded Taxes” as defined in Section 8.4(a).



               (f) Upon reasonable demand by Borrower or any Qualified Borrower to the Administrative Agent
or any Bank, the Administrative Agent or Bank, as the case may be, shall deliver to the Borrower or
Qualified Borrower, or to such government or taxing authority as



88









 







the Borrower or Qualified Borrower
may reasonably direct, any form or document that may be required or reasonably requested in writing
in order to allow the Borrower or Qualified Borrower to make a payment to or for the account of
such Bank or the Administrative Agent hereunder or under any other Loan Document without any
deduction or withholding for or on account of any Non-Excluded Taxes or with such deduction or
withholding at a reduced rate (so long as the completion, execution or submission of such form or
document would not materially prejudice the legal or commercial position of the party in receipt of
such demand), with any such form or document to be accurate and completed in a manner reasonably
satisfactory to the Borrower or Qualified Borrower making such demand and to be executed and to be
delivered with any reasonably required certification.



               (g) For any period with respect to which a Bank has failed to provide the Borrower with the
appropriate form pursuant to Section 8.4(d) (unless such failure is due to a change in treaty, law
or regulation occurring subsequent to the date on which a form originally was required to be
provided), such Bank shall not be entitled to indemnification under Section 8.4(c) with respect to
Non-Excluded Taxes imposed by the United States; provided, however, that should a
Bank, which is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Non-Excluded Taxes because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as such Bank shall reasonably request to assist such Bank to recover
such Taxes so long as Borrower shall incur no cost or liability as a result thereof.



               (h) If the Borrower is required to pay additional amounts to or for the account of any Bank
pursuant to this Section 8.4, then such Bank will change the jurisdiction of
its Applicable Lending Office so as to eliminate or reduce any such additional payment which
may thereafter accrue if such change, in the judgment of such Bank, is not otherwise
disadvantageous to such Bank.



               (i) If at any time, any Bank shall be owed amounts pursuant to this Section 8.4, the Borrower
shall have the right, upon five (5) Business Days’ notice to the Administrative Agent to either (x)
cause a bank, reasonably acceptable to the Administrative Agent, to offer to purchase the
Commitments of such Bank for an amount equal to such Bank’s outstanding Loans, and to become a Bank
hereunder, or to obtain the agreement of one or more existing Banks to offer to purchase the
Commitments of such Bank for such amount, which offer such Bank is hereby required to accept, or
(y) to repay in full all Loans then outstanding of such Bank, together with interest and all other
amounts due thereon, upon which event, such Bank’s Commitment shall be deemed to be canceled
pursuant to Section 2.11(c).



          Section 8.5 Base Rate Loans Substituted for Affected Euro-Dollar Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans has been suspended pursuant to
Section 8.2 or (ii) any Bank has demanded compensation under Section 8.3 or 8.4 with respect to its
Euro-Dollar Loans and the Borrower shall, by at least five Business Days’ prior notice to such Bank
through the Administrative Agent, have elected that the provisions of this Section shall apply to
such Bank, then, unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer exist:




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               (a) Borrower shall be deemed to have delivered a Notice of Interest Rate Election with respect
to such affected Euro-Dollar Loans and thereafter all Loans which would otherwise be made by such
Bank to the Borrower as Dollar-denominated Euro-Dollar Loans shall be made instead as Base Rate
Loans, and no Borrowing from such Bank would take effect with respect to Loans denominated in an
Alternate Currency; and



               (b) after each of its Euro-Dollar Loans has been repaid, all payments of principal which would
otherwise be applied to repay such Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead, and



               (c) Borrower will not be required to make any payment which would otherwise be required by
Section 2.14 with respect to such Euro-Dollar Loans converted to Base Rate Loans pursuant to clause
(a) above.



ARTICLE IX




MISCELLANEOUS



          Section 9.1 Notices. All notices, requests and other communications to any party hereunder shall be in writing
(including bank wire, telex, facsimile transmission followed by telephonic confirmation or similar
writing) and shall be given to such party: (x) in the case of the Borrower, any Qualified
Borrower, the Administrative Agent (JPMorgan Chase Bank, N.A.) or the Administrative Agent (J.P.
Morgan Europe Limited), at its address, telex number or facsimile number set forth on
Exhibit F attached hereto with a duplicate copy thereof, in the case of the Borrower, to
the Borrower, at its address set forth on the signature page hereof, Attn: General Counsel, (y) in
the case of any Bank, at its address, telex number or facsimile number set forth in its
Administrative Questionnaire or (z) in the case of any party, such other address, telex number or
facsimile number as such party may hereafter specify for the purpose by notice to the
Administrative Agent and the Borrower. Each such notice, request or other communication shall be
effective (i) if given by telex or facsimile transmission, when such telex or facsimile is
transmitted to the telex number or facsimile number specified in this Section and the appropriate
answerback or facsimile confirmation is received, (ii) if given by certified registered mail,
return receipt requested, with first class postage prepaid, addressed as aforesaid, upon receipt or
refusal to accept delivery, (iii) if given by a nationally recognized overnight carrier, 24 hours
after such communication is deposited with such carrier with postage prepaid for next day delivery,
or (iv) if given by any other means, when delivered at the address specified in this Section;
provided that notices to the Administrative Agent under Article II or Article VIII shall
not be effective until received.




          Section 9.2 No Waivers. No failure or delay by the Administrative Agent or any Bank in exercising any right, power or
privilege hereunder or under any Note shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.




          Section 9.3 Expenses; Indemnification.




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               (a) The Borrower shall pay within thirty (30) days after written notice from the
Administrative Agent, (i) all reasonable out-of-pocket costs and expenses of the Administrative
Agent (including, without limitation, reasonable fees and disbursements of special counsel Skadden,
Arps, Slate, Meagher & Flom LLP ), in connection with the preparation of this Agreement, the Loan
Documents and the documents and instruments referred to therein, and any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder, (ii) all reasonable
fees and disbursements of special counsel in connection with the syndication of the Loans, and
(iii) if an Event of Default occurs, all reasonable out-of-pocket expenses incurred by the
Administrative Agent and each Bank, including, without limitation, fees and disbursements of
counsel for the Administrative Agent and each of the Banks, in connection with the enforcement of
the Loan Documents and the instruments referred to therein and such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting therefrom;
provided, however, that the attorneys’ fees and disbursements for which Borrower is
obligated under this subsection (a)(iii) shall be limited to the reasonable non-duplicative fees
and disbursements of (A) counsel for Administrative Agent and (B) counsel for all of the Banks as a
group; and provided, further, that all other costs and expenses for which Borrower
is obligated under this subsection (a)(iii) shall be limited to the reasonable non-duplicative
costs and expenses of Administrative Agent. For purposes of this Section 9.3(a)(iii), (1) counsel
for Administrative Agent shall mean a single outside law firm representing
Administrative Agent and (2) counsel for all of the Banks as a group shall mean a single
outside law firm representing such Banks as a group (which law firm may or may not be the same law
firm representing the Administrative Agent).



               (b) The Borrower agrees to indemnify the Administrative Agent and each Bank, their respective
affiliates and the respective directors, officers, agents and employees of the foregoing (each an
“Indemnitee”) and hold each Indemnitee harmless from and against any and all liabilities,
losses, damages, costs and expenses of any kind, including, without limitation, the reasonable fees
and disbursements of counsel, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding that may at any time (including, without
limitation, at any time following the payment of the Obligations) be asserted against any
Indemnitee, as a result of, or arising out of, or in any way related to or by reason of, (i) any of
the transactions contemplated by the Loan Documents or the execution, delivery or performance of
any Loan Document, (ii) any violation by the Borrower or the Environmental Affiliates of any
applicable Environmental Law, (iii) any Environmental Claim arising out of the management, use,
control, ownership or operation of property or assets by the Borrower or any of the Environmental
Affiliates, including, without limitation, all on-site and off-site activities of Borrower or any
Environmental Affiliate involving Materials of Environmental Concern, (iv) the breach of any
environmental representation or warranty set forth herein, but excluding those liabilities, losses,
damages, costs and expenses (a) for which such Indemnitee has been compensated pursuant to the
terms of this Agreement, (b) incurred solely by reason of the gross negligence, willful misconduct
bad faith or fraud of any Indemnitee as finally determined by a court of competent jurisdiction,
(c) arising from violations of Environmental Laws relating to a Property which are caused by the
act or omission of such Indemnitee after such Indemnitee takes possession of such Property or (d)
owing by such Indemnitee to any third party based upon contractual obligations of such Indemnitee
owing to such third party which are not expressly set forth in the Loan Documents. In addition,
the indemnification set forth in this Section 9.3(b) in favor of any director, officer, agent or
employee of Administrative Agent or any Bank shall be



91









 







solely in their respective capacities as such
director, officer, agent or employee. The Borrower’s obligations under this Section shall survive
the termination of this Agreement and the payment of the Obligations. Without limitation of the
other provisions of this Section 9.3, Borrower shall indemnify and hold each of the Administrative
Agent and the Banks free and harmless from and against all loss, costs (including reasonable
attorneys’ fees and expenses), expenses, taxes, and damages (including consequential damages) that
the Administrative Agent and the Banks may suffer or incur by reason of the investigation, defense
and settlement of claims and in obtaining any prohibited transaction exemption under ERISA or the
Code necessary in the Administrative Agent’s reasonable judgment by reason of the inaccuracy of the
representations and warranties, or a breach of the provisions, set forth in Section 4.6(b).



          Section 9.4 Sharing of Set-Offs. In addition to any rights now or hereafter granted under applicable law or otherwise, and not by
way of limitation of any such rights, upon the occurrence and during the continuance of any Event
of Default, each Bank is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the Borrower or to any other Person, any such notice
being hereby expressly waived, but subject to the prior consent of the Administrative Agent, which
consent shall not be unreasonably withheld, to set off and to
appropriate and apply any and all deposits (general or special, time or demand, provisional or
final) and any other indebtedness at any time held or owing by such Bank (including, without
limitation, by branches and agencies of such Bank wherever located) to or for the credit or the
account of the Borrower or any Qualified Borrower against and on account of the Obligations of the
Borrower or any Qualified Borrower then due and payable to such Bank under this Agreement or under
any of the other Loan Documents, including, without limitation, all interests in Obligations
purchased by such Bank. Each Bank 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 and
interest due with respect to any Note held by it or Letter of Credit participated in by it or, in
the case of the Fronting Bank, Letter of Credit issued by it, which is greater than the proportion
received by any other Bank or Letter of Credit issued or participated in by such other Bank, the
Bank receiving such proportionately greater payment shall purchase such participations in the Notes
held by the other Banks, and such other adjustments shall be made, as may be required so that all
such payments of principal and interest with respect to the Notes held by the Banks or Letter of
Credit issued or participated in by such other Bank shall be shared by the Banks pro rata;
provided that nothing in this Section shall impair the right of any Bank to exercise any
right of set-off or counterclaim it may have to any deposits not received in connection with the
Loans and to apply the amount subject to such exercise to the payment of indebtedness of the
Borrower or Qualified Borrower other than its indebtedness under the Notes or the Letters of
Credit. The Borrower, for itself and on behalf of any Qualified Borrower, agrees, to the fullest
extent it may effectively do so under applicable law, that any holder of a participation in a Note
or a Letter of Credit, whether or not acquired pursuant to the foregoing arrangements, may exercise
rights of set-off or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower or the applicable
Qualified Borrower in the amount of such participation. Notwithstanding anything to the contrary
contained herein, any Bank may, by separate agreement with the Borrower or a Qualified Borrower,
waive its right to set off contained herein or granted by law and any such written waiver shall be
effective against such Bank under this Section 9.4.




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          Section 9.5 Amendments and Waivers.




               (a) Any provision of this Agreement or the Notes or the Letters of Credit or other Loan
Documents may be amended or waived if, but only if, such amendment or waiver is in writing and is
signed by the Borrower and the Majority Banks (and, if the rights or duties of the Administrative
Agent, the Syndication Agent or the Swingline Lender in their capacity as Administrative Agent,
Syndication Agent or the Swingline Lender, as applicable, including, without limitation, any
amendment of Section 9.16, are affected thereby, by the Administrative Agent, the Syndication Agent
or the Swingline Lender, as applicable); provided that (A) no amendment or waiver with
respect to this Agreement, the Notes, the Letters of Credit or any other Loan Documents shall,
unless signed by all the Banks, (i) increase or decrease the Commitment of any Bank (except for a
ratable decrease in the Commitments of all Banks) or subject any Bank to any additional obligation,
(ii) reduce the principal of or rate of interest on any Loan or any fees hereunder, (iii) postpone
the date fixed for any payment of principal of or interest on any Loan or any fees hereunder or for
any reduction or termination of any Commitment, (iv) change the percentage of the Commitments or of
the aggregate unpaid
principal amount of the Notes, or the number of Banks, which shall be required for the Banks
or any of them to take any action under this Section or any other provision of this Agreement, (v)
release the Guaranty or any Qualified Borrower Guaranty or (vi) modify the provisions of this
Section 9.5, and (B) no amendment or waiver of the provisions of Section 2.13(a) (as it relates to
the Borrower’s payment of Loans and fees hereunder by not later than 12:00 P.M. (New York City
time) on the date when due) shall be binding upon a Designating Lender as to any Money Market Loans
then outstanding unless signed by such Designating Lender.



               (b) The provisions in Sections 5.1, 5.8 through 5.14 and 6.1(b) through (i) and 6.1(l) through
(r) of this Agreement (the “AMB Revolver Provisions”), contain or are expected to contain
essentially the same provisions with respect to the Borrower and the Guarantor as those contained
in Sections 5.1, 5.8 through 5.14 and 6.1(b) through (i) and 6.1(l) through (r) of the Credit
Agreements (as defined below). In the event that the Borrower, Guarantor, Administrative Agent
and/or one or more administrative agents under any of the Credit Agreements propose in writing to
modify, waive or restate, or request a consent or approval with respect to, the AMB Revolver
Provisions (and related definitions) in any Credit Agreement (which may include a written waiver of
an existing actual or potential Default or Event of Default that is intended to be eliminated by
such modification, restatement or waiver (other than an actual Event of Default under Section
6.1(b) with respect to the covenants contained in Section 5.8 only)) (individually, a “Covenant
Modification”) and request corresponding changes to this Agreement, then any such Covenant
Modifications shall be subject to the approval of the Requisite Lenders and, simultaneously with
approval of such Covenant Modifications by the Requisite Lenders, this Agreement shall be deemed
modified or restated, or such waiver, consent or approval shall be deemed granted, in a manner
consistent with such approved Covenant Modifications, provided, however, that all the Banks shall
have received notice of any such proposed Covenant Modification, together with reasonable time to
respond thereto. If requested by the Borrower, Guarantor or Administrative Agent, the Borrower,
Guarantor, Administrative Agent and each Bank shall execute and deliver a written amendment to,
restatement of, or waiver, consent or approval under, this Agreement memorializing such
modification, restatement, waiver, consent or approval. Notwithstanding the foregoing, however,
nothing in this Section 9.5(b) shall be deemed to affect the rights of each Bank under the



93









 







provisions of clauses (A) and (B) of Section 9.5(a) and no Covenant Modification shall be deemed to
effect a change to such provisions.



               In addition, the Borrower will be obligated to pay to the Administrative Agent and the Banks
fees calculated in the same manner as any and all fees as the Borrower shall pay to the agents and
the lenders under the other Credit Agreement in connection with such approved Covenant
Modifications.



               For the purposes of this Section 9.5(b), “Credit Agreements” means (i) this Agreement,
(ii) the Revolving Credit Agreement to be entered into on or about the date of this Agreement
providing for loans in Yen and other alternate currencies to one or more qualified borrowers among
one or more qualified borrowers, Borrower and Guarantor, as guarantors, Sumitomo Mitsui Banking
Corporation, as administrative Agent, Sumitomo Mitsui Banking Corporation, as sole lead arranger
and sole joint bookrunners, and the other banks and agents listed therein (the “Yen Revolving
Credit Agreement”), (iii) the European Term Credit Agreement to be entered into on or after the
date of this Agreement providing for loans in Euros
to one more qualified borrowers among one or more qualified borrowers, Borrower and Guarantor, as
guarantors, an administrative agent and other agents to be selected by Borrower, lead arranger(s)
and joint bookrunners(s) to be selected by Borrower, and a syndicate of banks arranged by Borrower
and the lead arranger(s) (the “European Term Credit Agreement”), and (iv) any other credit
agreement or loan agreement under which Borrower is a borrower or guarantor which contains any
financial covenants applicable to Borrower that are substantially similar to the financial
covenants set forth in this Agreement from the date designated by Borrower from time to time in a
written notice to the Administrative Agent until the date Borrower revokes such designation in a
written notice to the Administrative Agent, in each case, as any of the foregoing may be further
amended, amended and restated, replaced, refinanced, supplemented or otherwise modified from time
to time.



               For the purposes of this Section 9.5(b) only, “Requisite Lenders” means at any time
the lenders (including the Banks) having at least 51% of the aggregate amount of (i) all
commitments under any Credit Agreement for which the lender commitments are still in effect, and
(ii) the aggregate unpaid principal amount of the loans under any Credit Agreement under which the
lender commitments have been terminated. For purposed of calculating the Requisite Lenders, (x) in
the case of swingline loans, the amount of each lender’s funded participation interest in such
swingline loans shall be considered as if it were a direct loan and not a participation interest,
and the aggregate amount of swingline loans owing to the swingline lender shall be consider as
reduced by the amount of such funded participation interests, and (y) in the case of letters of
credit, the amount of each lender’s participation, in any such letter of credit shall be considered
as if it were a direct loan from such lender.



          Section 9.6 Successors and Assigns.




               (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that the Borrower may not assign
or otherwise transfer any of its rights under this Agreement or the other Loan Documents without
the prior written consent of all Banks and the Administrative Agent



94









 







and a Bank may not assign or
otherwise transfer any of its interest under this Agreement except as permitted in subsection (b)
and (c) of this Section 9.6.



               (b) Prior to the occurrence of an Event of Default, any Bank may at any time, grant to an
existing Bank, one or more banks, finance companies, insurance companies or other financial
institutions (a “Participant”) in minimum amounts of not less than $5,000,000 (or any
lesser amount in the case of participations to an existing Bank) participating interests in its
Commitment or any or all of its Loans. After the occurrence and during the continuance of an Event
of Default, any Bank may at any time grant to any Person in any amount (also a
“Participant”), participating interests in its Commitment or any or all of its Loans. Any
participation made during the continuation of an Event of Default shall not be affected by the
subsequent cure of such Event of Default. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the Borrower and the
Administrative Agent, such Bank shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Bank in connection with such Bank’s rights and obligations under this
Agreement. Any agreement pursuant to which any Bank may grant such a participating interest shall
provide that such Bank shall retain the sole right and responsibility to enforce the obligations of
the Borrower hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such participation
agreement may provide that such Bank will not agree to any modification, amendment or waiver of
this Agreement described in clause (i), (ii), (iii), (iv) or (v) of Section 9.5 without the consent
of the Participant. The Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article VIII with respect to its
participating interest.



               (c) Any Bank may at any time assign to a Qualified Institution (in each case, an
“Assignee”) (i) prior to the occurrence of an Event of Default, in minimum amounts of not
less than Five Million Dollars ($5,000,000) and integral multiple of One Million Dollars
($1,000,000) thereafter (or any lesser amount in the case of assignments to an existing Bank) and
(ii) after the occurrence and during the continuance of an Event of Default, in any amount, all or
a proportionate part of all, of its rights and obligations under this Agreement, the Notes and the
other Loan Documents, and, in either case, such Assignee shall assume such rights and obligations,
pursuant to a Transfer Supplement in substantially the form of Exhibit “E” hereto executed by such
Assignee and such transferor Bank; provided, that such assignment shall be subject to the
Administrative Agent’s and the Fronting Bank’s consent and, provided that no Event of Default shall
have occurred and be continuing, the Borrower’s consent, which consents shall not be unreasonably
withheld or delayed; and provided further that if an Assignee is an affiliate of
such transferor Bank (unless such transferor Bank is a Defaulting Bank) or was a Bank (unless such
Bank is a Defaulting Bank) immediately prior to such assignment, no such consent of Borrower shall
be required; and provided further that such assignment may, but need not, include
rights of the transferor Bank in respect of outstanding Money Market Loans. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor Bank of an amount equal
to the purchase price agreed between such transferor Bank and such Assignee, such Assignee shall be
a Bank party to this Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and no further consent or action by any
party shall be required and the transferor Bank shall be released



95









 







from its obligations hereunder to
a corresponding extent. Upon the consummation of any assignment pursuant to this subsection (c),
the transferor Bank, the Administrative Agent and the Borrower shall make appropriate arrangements
so that, if required, a new Note is issued to the Assignee. In connection with any such assignment
(other than an assignment by a Bank to an affiliate), the transferor Bank shall pay to the
Administrative Agent an administrative fee for processing such assignment in the amount of $3,500.
If the Assignee is not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Administrative Agent certification as to
exemption from deduction or withholding of any United States federal income taxes in accordance
with Section 8.4. Any assignment made during the continuation of an Event of Default shall not be
affected by any subsequent cure of such Event of Default.



               (d) Any Bank (each, a “Designating Lender”) may at any time designate one Designated
Lender to fund Money Market Loans on behalf of such Designating Lender subject to the terms of this
Section 9.6(d) and the provisions in Section 9.6(b) and (c) shall not
apply to such designation. No Bank may designate more than one (1) Designated Lender at any
one time. The parties to each such designation shall execute and deliver to the Administrative
Agent for its acceptance a Designation Agreement. Upon such receipt of an appropriately completed
Designation Agreement executed by a Designating Lender and a designee representing that it is a
Designated Lender, the Administrative Agent will accept such Designation Agreement and will give
prompt notice thereof to the Borrower, whereupon, (i) the Borrower shall execute and deliver to the
Designating Lender a Designated Lender Note payable to the order of the Designated Lender, (ii)
from and after the effective date specified in the Designation Agreement, the Designated Lender
shall become a party to this Agreement with a right (subject to the provisions of Section 2.4) to
make Money Market Loans on behalf of its Designating Lender pursuant to the Designation Agreement
after the Borrower has accepted a Money Market Loan (or portion thereof) of the Designating Lender,
and (iii) the Designated Lender shall not be required to make payments with respect to any
obligations in this Agreement except to the extent of excess cash flow of such Designated Lender
which is not otherwise required to repay obligations of such Designated Lender which are then due
and payable; provided, however, that regardless of such designation and assumption
by the Designated Lender, the Designating Lender shall be and remain obligated to the Borrower, the
Administrative Agent and the Banks for each and every of the obligations of the Designating Lender
and its related Designated Lender with respect to this Agreement, including, without limitation,
any indemnification obligations under Section 7.6 hereof and any sums otherwise payable to the
Borrower by the Designated Lender. Each Designating Lender shall serve as the administrative agent
of the Designated Lender and shall on behalf of, and to the exclusion of, the Designated Lender:
(i) receive any and all payments made for the benefit of the Designated Lender and (ii) give and
receive all communications and notices and take all actions hereunder, including, without
limitation, votes, approvals, waivers, consents and amendments under or relating to this Agreement
and the other Loan Documents. Any such notice, communication, vote, approval, waiver, consent or
amendment shall be signed by the Designating Lender as administrative agent for the Designated
Lender and shall not be signed by the Designated Lender on its own behalf and shall be binding upon
the Designated Lender to the same extent as if signed by the Designated Lender on its own behalf.
The Borrower, the Administrative Agent and the Banks may rely thereon without any requirement that
the Designated Lender sign or acknowledge the same. No Designated Lender may assign or transfer
all or any portion of its interest hereunder or



96









 







under any other Loan Document, other than
assignments to the Designating Lender which originally designated such Designated Lender or
otherwise in accordance with the provisions of Section 9.6(b) and (c).



               (e) Any Bank may at any time assign all or any portion of its rights under this Agreement and
its Note and the Letter(s) of Credit participated in by such Bank or, in the case of the Fronting
Bank, issued by it, to a Federal Reserve Bank. No such assignment shall release the transferor
Bank from its obligations hereunder.



               (f) No Assignee, Participant or other transferee of any Bank’s rights shall be entitled to
receive any greater payment under Section 8.3 or 8.4 than such Bank would have been entitled to
receive with respect to the rights transferred, unless such transfer is made with the Borrower’s
prior written consent or by reason of the provisions of Section 8.2, 8.3 or 8.4 requiring such Bank
to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater payment did not
exist.



               (g) No Assignee of any rights and obligations under this Agreement shall be permitted to
further assign less than all of such rights and obligations. No participant in any rights and
obligations under this Agreement shall be permitted to sell subparticipations of such rights and
obligations.



               (h) Anything in this Agreement to the contrary notwithstanding, so long as no Event of Default
shall have occurred and be continuing, no Bank shall be permitted to enter into an assignment of,
or sell a participation interest in, its rights and obligations hereunder which would result in
such Bank holding a Commitment without participants of less than Five Million Dollars ($5,000,000)
(or in the case of each of the Administrative Agent or the Syndication Agent, Ten Million Dollars
($10,000,000)) unless as a result of a cancellation or reduction of the aggregate Commitments;
provided, however, that no Bank shall be prohibited from assigning its entire
Commitment so long as such assignment is otherwise permitted under this Section 9.6.



          Section 9.7 Collateral. Each of the Banks represents to the Administrative Agent and each of the other Banks that it in
good faith is not relying upon any “margin stock” (as defined in Regulation U) as collateral in the
extension or maintenance of the credit provided for in this Agreement.




          Section 9.8 Governing Law; Submission to Jurisdiction; Judgment Currency.




               (a) This agreement and the other loan documents and the rights and obligations of the parties
hereunder and thereunder shall be construed in accordance with and be governed by the laws of the
State of New York pursuant to Section 5-1401 of the General Obligations Law of the State of New
York (without giving effect to the principles thereof relating to conflicts of law).



               (b) Any legal action or proceeding with respect to this Agreement or any other Loan Document
and any action for enforcement of any judgment in respect thereof may be brought in the courts of
the State of New York or of the United States of America for the



97









 







Southern District of New York,
and, by execution and delivery of this Agreement, the Borrower hereby accepts for itself and in
respect of its property and each Qualified Borrower, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and appellate courts from any thereof. The
Borrower irrevocably consents, for itself and each Qualified Borrower, to the service of process
out of any of the aforementioned courts in any such action or proceeding by the hand delivery, or
mailing of copies thereof by registered or certified mail, postage prepaid, to the Borrower or
Qualified Borrower at its address set forth below. The Borrower hereby, for itself and each
Qualified Borrower, irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with
this Agreement or any other Loan Document brought in the courts referred to above and hereby
further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been brought in an
inconvenient forum. Nothing herein shall affect the right of the Administrative Agent to serve
process in any other manner permitted by law or to commence legal proceedings or otherwise proceed
against the Borrower or a Qualified Borrower in any other jurisdiction.



               (c) If for the purpose of obtaining judgment in any court it is necessary to convert a sum due
hereunder in one currency into another currency, the parties hereto agree, to the fullest extent
that they may effectively do so under applicable law, that the rate of exchange used shall be the
spot rate at which in accordance with normal banking procedures the first currency could be
purchased in New York City with such other currency by the person obtaining such judgment on the
Business Day preceding that on which final judgment is given.



               (d) The parties agree, to the fullest extent that they may effectively do so under applicable
law, that the obligations of the Borrower or any Qualified Borrower to make payments in any
currency of the principal of and interest on the Loans of the Borrower and any Qualified Borrower
and any other amounts due from the Borrower or any Qualified Borrower hereunder to the
Administrative Agent as provided herein (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance with Section 9.8(c)),
in any currency other than the relevant currency, except to the extent that such tender or recovery
shall result in the actual receipt by the Administrative Agent at its relevant office on behalf of
the Banks of the full amount of the relevant currency expressed to be payable in respect of the
principal of and interest on the Loans and all other amounts due hereunder (it being assumed for
purposes of this clause (i) that the Administrative Agent will convert any amount tendered or
recovered into the relevant currency on the date of such tender or recovery), (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of recovering in the
relevant currency the amount, if any, by which such actual receipt shall fall short of the full
amount of the relevant currency so expressed to be payable and (iii) shall not be affected by an
unrelated judgment being obtained for any other sum due under this Agreement.



          Section 9.9 Counterparts; Integration; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument. This
Agreement constitutes the entire agreement and understanding among the parties hereto and
supersedes any and all prior agreements and understandings, oral or written, relating to the
subject matter hereof. This Agreement shall become effective upon receipt by the Administrative
Agent and the Borrower of



98









 






counterparts hereof signed by each of the parties hereto (or, in the case
of any party as to which an executed  counterpart shall not have been received, receipt by the
Administrative Agent in form satisfactory to it of telegraphic, telex or other written confirmation
from such party of execution of a counterpart hereof by such party).




          Section 9.10 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT AND THE BANKS HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.




          Section 9.11 Survival. All indemnities set forth herein shall survive the execution and delivery of this Agreement and
the other Loan Documents and the making and repayment of the Loans hereunder.




          Section 9.12 Domicile of Loans. Each Bank may transfer and carry its Loans at, to or for the account of any domestic or foreign
branch office, subsidiary or affiliate of such Bank.




          Section 9.13 Limitation of Liability. No claim may be made by the Borrower or any other Person acting by or through Borrower against
the Administrative Agent, the Syndication Agent or any Bank or the affiliates, directors, officers,
employees, attorneys or agent of any of them for any punitive damages in respect of any claim for
breach of contract or any other theory of liability arising out of or related to the transactions
contemplated by this Agreement or by the other Loan Documents, or any act, omission or event
occurring in connection therewith; and the Borrower hereby, for itself and each Qualified Borrower,
waives, releases and agrees not to sue upon any claim for any such damages, whether or not accrued
and whether or not known or suspected to exist in its favor.




          Section 9.14 Recourse Obligation. This Agreement and the Obligations hereunder are fully recourse to the Borrower. Notwithstanding
the foregoing, no recourse under or upon any obligation, covenant, or agreement contained in this
Agreement shall be had against (i) any officer, director, shareholder or employee of the Borrower
or General Partner or (ii) any general partner of Borrower other than General Partner, in each case
except in the event of fraud or misappropriation of funds on the part of such officer, director,
shareholder or employee or such general partner.




          Section 9.15 Confidentiality. The Administrative Agent, the Syndication Agent, the Joint Lead Arrangers and Joint Bookrunners
and each Bank shall use reasonable efforts to assure that information about Borrower, General
Partner and its Subsidiaries and Investment Affiliates, and the Properties thereof and their
operations, affairs and financial condition, not generally disclosed to the public, which is
furnished to Administrative Agent, the Syndication Agent, the Joint Lead Arrangers and Joint
Bookrunners or any Bank pursuant to the provisions hereof or any other Loan Document is used only
for the purposes of this Agreement and shall not be divulged to any Person other than the
Administrative Agent, the Banks, and their affiliates and respective officers, directors, employees
and agents who are actively and directly participating in the evaluation, administration or
enforcement of the Loan and other transactions




99









 







between such Bank and the Borrower, except: (a) to
their attorneys and accountants, (b) in connection with the enforcement of the rights and exercise
of any remedies of the Administrative Agent and the Banks hereunder and under the other Loan
Documents, (c) in connection with assignments and participations and
the solicitation of prospective assignees and participants referred to in Section 9.6 hereof, who
have agreed in writing to be bound by a confidentiality agreement substantially equivalent to the
terms of this Section 9.15, and (d) as may otherwise be required or requested by any regulatory
authority having jurisdiction over the Administrative Agent or any Bank or by any applicable law,
rule, regulation or judicial process (but only to the extent not in violation, conflict or
inconsistent with the applicable regulatory requirement, request, summons or subpoena);
provided, however, that in the event a Bank receives a summons or subpoena to
disclose confidential information to any party, such Bank shall, if legally permitted, endeavor to
notify Borrower thereof as soon as possible after receipt of such request, summons or subpoena and
Borrower shall be afforded an opportunity to seek protective orders, or such other confidential
treatment of such disclosed information, as Borrower and Administrative Agent may deem reasonable.




          Section 9.16 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:




               (a) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section
2.9(a);



               (b) the Commitment of such Defaulting Lender shall not be included in determining whether the
Majority Banks have taken or may take any action hereunder (including any consent to any amendment,
waiver or other modification pursuant to Section 9.5); except (i) such Defaulting Lender’s
Commitment may not be increased or extended without its consent and (ii) the principal amount of,
or interest or fees payable on, Loans or Letters of Credit may not be reduced or excused or the
scheduled date of payment may not be postponed as to such Defaulting Lender (except as otherwise
provided herein) without such Defaulting Lender’s consent;



               (c) if any Swingline Loans or Letters of Credit are outstanding at the time such Bank becomes
a Defaulting Lender then:




(i) provided that no Default or Event of Default shall have occurred and be
outstanding as of the date on which the applicable Bank becomes a Defaulting Lender,
all or any part of the obligations of such Defaulting Lender under any such
Swingline Loan or Letter of Credit shall be reallocated among the non-Defaulting
Lenders in accordance with their respective Pro Rata Share but only to the extent
the sum of all non-Defaulting Lenders’ outstanding Commitments (it being understood
that under no circumstance shall any Bank at any time be liable for any amounts in
excess of its Commitment) plus such Defaulting Lender’s obligations under such
Swingline Loans and Letters of Credit does not exceed the total of all
non-Defaulting Lenders’ Commitments;




(ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within five (5) Business Days following



100









 






notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Pro
Rata Share of the Swingline Loans and (y) second, cash collateralize for the benefit
of the Fronting Bank only the Borrower’s obligations corresponding to such
Defaulting Lender’s Pro Rata Share of all outstanding Letters of Credit (such
Defaulting Lender’s “LC Exposure”) (after giving effect to any partial
reallocation pursuant to clause (i) above) (such Defaulting Lender’s
“Collateralized LC Exposure”) by paying to the Administrative Agent on
behalf of the Fronting Bank, for deposit in the Letter of Credit Collateral Account,
Letter of Credit Collateral in an amount equal to the Dollar Equivalent Amount of
such Defaulting Lender’s Collateralized LC Exposure. The Administrative Agent shall
recalculate the Dollar Equivalent Amount applicable to such Defaulting Lender’s Pro
Rata Share of all Alternate Currency Letters of Credit monthly, as of the first
Business Day of each month to the extent included in the calculation of such
Defaulting Lender’s Non-Reallocated Share. Interest shall accrue on such Letter of
Credit Collateral in accordance with the provisions of Section 6.4. Such Letter of
Credit Collateral shall be held and applied for the benefit of the Fronting Bank
only and otherwise in accordance with the provisions of Section 6.4 for so long as
such Letters of Credit are outstanding;




(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC
Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay
any fees to such Defaulting Lender pursuant to Section 2.9(b) with respect to such
Defaulting Lender’s Pro Rata Share of the Letters of Credit during the period such
Defaulting Lender’s Pro Rata Share of the Letters of Credit is cash collateralized;




(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to
clause (i) above, then the fees payable to the Banks pursuant to Section 2.9 (a) and
Section 2.9(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Pro
Rata Shares; and




(v) if all or any portion of such Defaulting Lender’s Pro Rata Share of all
outstanding Letters of Credit is neither reallocated nor cash collateralized
pursuant to clause (i) or (ii) above, then, without prejudice to any rights or
remedies of the Fronting Bank or any other Bank hereunder, all Facility Fees that
otherwise would have been payable to such Defaulting Lender (solely with respect to
the portion of such Defaulting Lender’s Commitment that was utilized by such Letters
of Credit) and Letter of Credit Fees payable under Section 2.9(b) with respect to
such Defaulting Lender’s obligations under the Letters of Credit shall be payable to
the Fronting Bank until and to the extent that such obligations under the Letters of
Credit are reallocated and/or cash collateralized; and




(vi) so long as such Bank is a Defaulting Lender, the Swingline Lender shall not be
required to fund any Swingline Loan and the Fronting Bank shall not be required to
issue, amend or increase any Letter of Credit, unless it is satisfied that the
related LC Exposure of the Defaulting Lender will be 100% covered by the Commitments
of the non-Defaulting Lenders and/or cash collateralized in



101









 







accordance with Section
9.16(c)(ii), and participating interests in any newly made
Swingline Loan or any newly issued or increased Letter of Credit shall be allocated
among non-Defaulting Lenders in a manner consistent with Section 9.16(c)(i) (and
such Defaulting Lender shall not participate therein).



               (d) In the event that the Administrative Agent, the Borrower, the Swingline Lender and the
Fronting Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused
such Bank to be a Defaulting Lender, then the obligations under the Swingline Loan and the Letters
of Credit of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and
on such date such Bank shall purchase at par such of the Loans of the other Banks (other than Money
Market Loans and Swingline Loans) as the Administrative Agent shall determine may be necessary in
order for such Bank to hold such Loans in accordance with its Pro Rata Share and all Letter of
Credit Collateral deposited or then held with respect to such Bank’s LC Exposure shall be delivered
to the Borrower.



               (e) If at any time any Bank becomes a Defaulting Lender, then until such time as such
Defaulting Lender has adequately remedied all matters required under and in accordance with Section
9.16(d), the Borrower shall have the right, upon five (5) Business Days’ notice to the
Administrative Agent to either (x) cause a bank, reasonably acceptable to the Administrative Agent,
to offer to purchase the Commitments of such Defaulting Lender for an amount equal to such
Defaulting Lender’s outstanding Loans (other than any Money Market Loans held by it), and to become
a Bank hereunder, or to obtain the agreement of one or more existing Banks to offer to purchase the
Commitments of such Defaulting Lender for such amount, which offer such Defaulting Lender is hereby
required to accept, or (y) to repay in full all Loans then outstanding of such Defaulting Lender
(excluding, at the option of the Borrower, any Money Market Loans held by it), together with
interest and all other amounts due thereon, upon which event, such Defaulting Lender’s Commitment
shall be deemed to be cancelled pursuant to Section 2.11(c).



          Section 9.17 Banks’ ERISA Covenant. Each Bank, by its signature hereto or on the applicable Transfer Supplement, hereby agrees (a)
that on the date any Loan is disbursed hereunder no portion of such Bank’s Pro Rata Share of such
Loan will constitute “assets” within the meaning of 29 C.F.R. § 2510.3-101 of an “employee benefit
plan” within the meaning of Section 3(3) of ERISA or a “plan” within the meaning of Section
4975(e)(1) of the Code, and (b) that following such date such Bank shall not allocate such Bank’s
Pro Rata Share of any Loan to an account of such Bank if such allocation (i) by itself would cause
such Pro Rata Share of such Loan to then constitute “assets” (within the meaning of 29 C.F.R. §
2510.3-101) of an “employee benefit plan” within the meaning of Section 3(3) of ERISA or a “plan”
within the meaning of Section 4975(e)(1) of the Code and (ii) by itself would cause such Loan to
constitute a prohibited transaction under ERISA or the Code (which is not exempt from the
restrictions of Section 406 of ERISA and Section 4975 of the Code and the taxes and penalties
imposed by Section 4975 of the Code and Section 502(i) of ERISA) or any Agent or Bank being deemed
in violation of Section 404 of ERISA.




          Section 9.18 No Bankruptcy Proceedings. Each of the Borrower, the Banks, the Administrative Agent, the Joint Lead Arrangers and the
Joint Bookrunners hereby agrees that it




102









 







will not institute against any Designated Lender or join
any other Person in instituting against any Designated Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any federal or state bankruptcy or similar
law, until the later to occur of (i) one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Designated Lender and (ii) the Maturity Date.




          Section 9.19 Optional Increase in Commitments. At any time prior to the date that is thirty (30) months after the date of this Agreement,
provided no Event of Default shall have occurred and then be continuing, the Borrower may, if it so
elects, increase the aggregate amount of the Commitments (subject to proviso (b) in the next
sentence), either by designating a Qualified Institution not theretofore a Bank to become a Bank
(such designation to be effective only with the prior written consent of the Administrative Agent,
which consent will not be unreasonably withheld) and/or by agreeing with an existing Bank or Banks
that such Bank’s Commitment shall be increased. Upon execution and delivery by the Borrower and
such Bank or other financial institution of an instrument in form reasonably satisfactory to the
Administrative Agent, such existing Bank shall have a Commitment as therein set forth or such
Qualified Institution shall become a Bank with a Commitment as therein set forth and all the rights
and obligations of a Bank with such a Commitment hereunder; provided that:




               (a) the Borrower shall provide prompt notice of such increase to the Administrative Agent, who
shall promptly notify the Banks; and



               (b) the amount of such increase, together with all other increases in the aggregate amount of
the Commitments pursuant to this Section 9.19 since the date of this Agreement, does not cause the
Facility Amount to exceed $800,000,000.


Upon any increase in the aggregate amount of the Commitments pursuant to this Section 9.19, within
five Business Days (in the case of any Base Rate Loans then outstanding) or at the end of the then
current Interest Period with respect thereto (in the case of any Euro-Dollar Loans then
outstanding), as applicable, each Bank’s Pro Rata Share shall be recalculated to reflect such
increase in the Commitments and the outstanding principal balance of the Loans shall be reallocated
among the Banks such that, subject to the penultimate sentence of Section 2.1, the outstanding
principal amount of Loans owed to each Bank shall be equal to such Bank’s Pro Rata Share (as
recalculated). All payments, repayments and other disbursements of funds by the Administrative
Agent to Banks shall thereupon and, at all times thereafter be made in accordance with each Bank’s
recalculated Pro Rata Share.




          Section 9.20 Managing Agents, Documentation Agents and Co-Agents. Each of the Borrower, the Agents and each Bank acknowledges and agrees that (a) the obligations
of the Managing Agents, the Documentation Agents and the Co-Agent hereunder shall be limited to
those obligations that are expressly set forth herein, if any, and the Managing Agents,
Documentation Agents and Co-Agent shall not be required to take any action or assume
any liability except as may be required in each of their capacity as a Bank hereunder, and (b) the
indemnifications set forth herein for the benefit of the Agents shall also run to the benefit of
the Managing Agents, the Documentation Agents and the Co-Agent to the extent any of them incurs any
loss, cost or damage arising from its capacity as a Managing Agent, Documentation Agent or a
Co-Agent.




103









 








          Section 9.21 USA PATRIOT Act. Each Bank 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 Bank to
identify the Borrower in accordance with the Act.





104












 





          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.




	 	 	 	 	 	 	 

	 	 	AMB PROPERTY, L.P., a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 
	 	 	By:      AMB PROPERTY CORPORATION, a 	 	 
	 	 	Maryland corporation and its sole general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Thomas Olinger	 	 
	 

	 	Name:
	 	Thomas Olinger

	 	 
	 

	 	Title:	 	Chief Financial Officer	 	 






	 	 	 	 	 

	 

	 	Facsimile number:
	 	(415) 394-9001
	 

	 	Address:
	 	Pier 1, Bay 1
	 

	 	 	 	San Francisco, California 94111
	 

	 	 	 	Attn: Chief Financial Officer





TOTAL COMMITMENTS: $600,000,000









 









 








	 	 	 	 	 	 	 

	 	 	JPMORGAN CHASE BANK, N.A., as Administrative
	 	 	Agent and as a Bank
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Brendan M. Poe	 	 
	 

	 	Name:
	 	 

Brendan M. Poe
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $65,000,000.00
	 	 	Alternate Currency Commitment: $65,000,000.00






 









 






	 	 	 	 	 	 	 

	 	 	J.P. MORGAN EUROPE LIMITED, as Administrative Agent
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Belinda Lucas	 	 
	 

	 	Name:
	 	Belinda Lucas

	 	 
	 

	 	Title:	 	Associate	 	 






 









 








	 	 	 	 	 	 	 

	 	 	BANK OF AMERICA, N.A., as Syndication Agent and as a Bank
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ James P. Johnson	 	 
	 

	 	Name:
	 	 

James P. Johnson
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $65,000,000.00
	 	 	Alternate Currency Commitment: $65,000,000.00






 









 






	 	 	 	 	 	 	 

	 	 	PNC BANK, NA, as Documentation Agent and as a Bank
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Nicolas Zitelli	 	 
	 

	 	Name:
	 	 

Nicolas Zitelli
	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $65,000,000.00
	 	 	Alternate Currency Commitment: $65,000,000.00






 









 






	 	 	 	 	 	 	 

	 	 	THE BANK OF NOVA SCOTIA, as Documentation Agent and as a Bank
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Teresa Wu	 	 
	 

	 	Name:
	 	 
Teresa Wu
	 	 
	 

	 	Title:	 	Director 	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $65,000,000.00
	 	 	Alternate Currency Commitment: $65,000,000.00






 









 






	 	 	 	 	 	 	 

	 	 	WELLS FARGO BANK, N.A., as Documentation Agent and as a Bank
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Torsten Galley	 	 
	 

	 	Name:
	 	 
Torsten Galley
	 	 
	 

	 	Title:	 	Vice President 	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $65,000,000.00
	 	 	Alternate Currency Commitment: $65,000,000.00






 









 






	 	 	 	 	 	 	 

	 	 	COMPASS BANK, as Managing Agent and as a Bank
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Brian Tuerff	 	 
	 

	 	Name:
	 	 
Brian Tuerff
	 	 
	 

	 	Title:	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $50,000,000.00
	 	 	Alternate Currency Commitment: $50,000,000.00






 









 






	 	 	 	 	 	 	 

	 	 	US BANK, NA, as Managing Agent and as a Bank
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Ben J. Lewis	 	 
	 

	 	Name:
	 	 

Ben J. Lewis
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $50,000,000.00
	 	 	Alternate Currency Commitment: $50,000,000.00






 









 






	 	 	 	 	 	 	 

	 	 	UNION BANK, N.A., as Managing Agent and as a Bank
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/
Katherine Brandt	 	 
	 

	 	Name:
	 	 

Katherine Brandt
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $50,000,000.00
	 	 	Alternate Currency Commitment: $50,000,000.00






 









 






	 	 	 	 	 	 	 

	 	 	STATE BANK OF INDIA, as a Bank
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ C. Sreenivasulu Setty	 	 
	 

	 	Name:
	 	 

C. Sreenivasulu Setty
	 	 
	 

	 	Title:
	 	Vice President & Head (Syndications)	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $30,000,000.00
	 	 	Alternate Currency Commitment: $0






 









 






	 	 	 	 	 	 	 

	 	 	HSBC BANK USA, N.A., as a Bank
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ David Hants	 	 
	 

	 	Name:
	 	 
David Hants
	 	 
	 

	 	Title:	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $25,000,000.00
	 	 	Alternate Currency Commitment: $25,000,000.00







 











 





	 	 	 	 	 	 	 

	 	 	CHANG HWA COMMERCIAL BANK, LTD., LOS ANGELES BRANCH, as
a Bank	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Beverley Chen	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Beverley Chen	 	 
	 

	 	Title:	 	VP & General Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $20,000,000.00

Alternate Currency Commitment: $20,000,000.00	 	 






 









 






	 	 	 	 	 	 	 

	 	 	SUMITOMO MITSUI BANKING CORPORATION, as a Bank	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Natsuhiro Scmejima	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Natsuhiro Scmejima	 	 
	 

	 	Title:	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $25,000,000.00

Alternate Currency Commitment: $25,000,000.00	 	 






 









 






	 	 	 	 	 	 	 

	 	 	ING REAL ESTATE FINANCE
(USA) LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Christopher S. Godlewsk	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Christopher S. Godlewsk	 	 
	 

	 	Title:	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Laura Lynton	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Laura Lynton	 	 
	 

	 	Title:	 	Vice President	 	 
	 
	 	 	Dollar Commitment: $15,000,000.00

Alternate Currency Commitment: $15,000,000.00	 	 






 









 






	 	 	 	 	 	 	 

	 	 	BANK OF TAIWAN, LOS ANGELES BRANCH, as a Bank	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Chie Shen Tsao	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Chie Shen Tsao	 	 
	 

	 	Title:	 	AVP & Deputy General Manager 	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $10,000,000.00

Alternate Currency Commitment: $10,000,000.00	 	 






 









 






	 	 	 	 	 	 	 

	 	 	UNITED OVERSEAS BANK LIMITED, LOS ANGELES AGENCY, as a Bank	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Hoong Chen	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Hoong Chen	 	 
	 

	 	Title:	 	Senior Vice President &
General Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Dollar Commitment: $5,000,000.00

Alternate Currency Commitment: $0