exv10w1






Exhibit 10.1




      




CREDIT AGREEMENT




dated as of October 15, 2009




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 Euros,




SUMITOMO MITSUI BANKING CORPORATION,

as Administrative Agent for Yen




SUMITOMO MITSUI BANKING CORPORATION,

as Syndication Agent,




J.P. MORGAN SECURITIES INC.,

and

SUMITOMO MITSUI BANKING CORPORATION

as Joint Lead Arrangers and Joint Bookrunners,




and




CALYON CREDIT AGRICOLE CIB, NEW YORK BRANCH,

and

U.S. BANK NATIONAL ASSOCIATION

and

HSBC BANK USA, NATIONAL ASSOCIATION,

as Documentation Agents




      





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE I

	 
	 	 	 	 	 	 
	DEFINITIONS

	SECTION 1.1.

	 	Definitions
	 	 	1	 
	SECTION 1.2.

	 	Accounting Terms and Determinations
	 	 	25	 
	SECTION 1.3.

	 	Types of Borrowings
	 	 	26	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 
	 	 	 	 	 	 
	THE CREDITS

	 
	 	 	 	 	 	 
	SECTION 2.1.

	 	Commitments to Lend
	 	 	26	 
	SECTION 2.2.

	 	Notice of Borrowing
	 	 	26	 
	SECTION 2.3.

	 	Intentionally Omitted
	 	 	27	 
	SECTION 2.4.

	 	Intentionally Omitted
	 	 	27	 
	SECTION 2.5.

	 	Notice to Banks; Funding of Loans
	 	 	27	 
	SECTION 2.6.

	 	Notes
	 	 	28	 
	SECTION 2.7.

	 	Method of Electing Interest Rates
	 	 	29	 
	SECTION 2.8.

	 	Interest Rates
	 	 	31	 
	SECTION 2.9.

	 	Fees
	 	 	31	 
	SECTION 2.10.

	 	Maturity Date
	 	 	31	 
	SECTION 2.11.

	 	Optional Prepayments
	 	 	32	 
	SECTION 2.12.

	 	Intentionally Omitted
	 	 	32	 
	SECTION 2.13.

	 	General Provisions as to Payments
	 	 	33	 
	SECTION 2.14.

	 	Funding Losses
	 	 	33	 
	SECTION 2.15.

	 	Computation of Interest and Fees
	 	 	34	 
	SECTION 2.16.

	 	Use of Proceeds
	 	 	34	 
	SECTION 2.17.

	 	Special Provisions Regarding Alternate Currency Loans
	 	 	34	 
	SECTION 2.18.

	 	Addition of Qualified Borrowers; Release of Qualified Borrowers
	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 
	 	 	 	 	 	 
	CONDITIONS

	 
	 	 	 	 	 	 
	SECTION 3.1.

	 	Closing
	 	 	35	 
	SECTION 3.2.

	 	Borrowings
	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 	 	 
	SECTION 4.1.

	 	Existence and Power
	 	 	38	 
	SECTION 4.2.

	 	Power and Authority
	 	 	38	 






i









 






	 	 	 	 	 	 	 
	SECTION 4.3.

	 	No Violation
	 	 	39	 
	SECTION 4.4.

	 	Financial Information
	 	 	40	 
	SECTION 4.5.

	 	Litigation
	 	 	40	 
	SECTION 4.6.

	 	Intentionally Omitted
	 	 	40	 
	SECTION 4.7.

	 	Environmental
	 	 	40	 
	SECTION 4.8.

	 	Taxes
	 	 	41	 
	SECTION 4.9.

	 	Full Disclosure
	 	 	41	 
	SECTION 4.10.

	 	Solvency
	 	 	41	 
	SECTION 4.11.

	 	Use of Proceeds
	 	 	41	 
	SECTION 4.12.

	 	Governmental Approvals
	 	 	41	 
	SECTION 4.13.

	 	Investment Company Act; Public Utility Holding Company Act
	 	 	41	 
	SECTION 4.14.

	 	Principal Offices
	 	 	42	 
	SECTION 4.15.

	 	REIT Status
	 	 	42	 
	SECTION 4.16.

	 	Patents, Trademarks, etc.
	 	 	42	 
	SECTION 4.17.

	 	Judgments
	 	 	42	 
	SECTION 4.18.

	 	No Default
	 	 	42	 
	SECTION 4.19.

	 	Licenses, etc.
	 	 	42	 
	SECTION 4.20.

	 	Compliance With Law
	 	 	42	 
	SECTION 4.21.

	 	No Burdensome Restrictions
	 	 	42	 
	SECTION 4.22.

	 	Brokers’ Fees
	 	 	43	 
	SECTION 4.23.

	 	Intentionally Omitted
	 	 	43	 
	SECTION 4.24.

	 	Insurance
	 	 	43	 
	SECTION 4.25.

	 	Organizational Documents
	 	 	43	 
	SECTION 4.26.

	 	Unencumbered Properties
	 	 	43	 
	 
	 	 	 	 	 	 
	ARTICLE V

	 
	 	 	 	 	 	 
	AFFIRMATIVE AND NEGATIVE COVENANTS

	 
	 	 	 	 	 	 
	SECTION 5.1.

	 	Information
	 	 	43	 
	SECTION 5.2.

	 	Payment of Obligations
	 	 	46	 
	SECTION 5.3.

	 	Maintenance of Property; Insurance; Affiliate Transfers
	 	 	46	 
	SECTION 5.4.

	 	Maintenance of Existence
	 	 	47	 
	SECTION 5.5.

	 	Compliance with Laws
	 	 	47	 
	SECTION 5.6.

	 	Inspection of Property, Books and Records
	 	 	47	 
	SECTION 5.7.

	 	Existence
	 	 	47	 
	SECTION 5.8.

	 	Financial Covenants
	 	 	47	 
	SECTION 5.9.

	 	Restriction on Fundamental Changes
	 	 	49	 
	SECTION 5.10.

	 	Changes in Business
	 	 	49	 
	SECTION 5.11.

	 	General Partner Status
	 	 	49	 
	SECTION 5.12.

	 	Other Indebtedness
	 	 	51	 
	SECTION 5.13.

	 	Forward Equity Contracts
	 	 	51	 
	SECTION 5.14.

	 	Capital Funding Loans
	 	 	51	 






ii









 






	 	 	 	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 	 	 
	DEFAULTS

	 
	 	 	 	 	 	 
	SECTION 6.1.

	 	Events of Default
	 	 	53	 
	SECTION 6.2.

	 	Rights and Remedies
	 	 	55	 
	SECTION 6.3.

	 	Notice of Default
	 	 	56	 
	SECTION 6.4.

	 	Distribution of Proceeds after Default
	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 	 	 
	THE AGENTS

	 
	 	 	 	 	 	 
	SECTION 7.1.

	 	Appointment and Authorization
	 	 	57	 
	SECTION 7.2.

	 	Agency and Affiliates
	 	 	57	 
	SECTION 7.3.

	 	Action by Agents
	 	 	57	 
	SECTION 7.4.

	 	Consultation with Experts
	 	 	57	 
	SECTION 7.5.

	 	Liability of Agents
	 	 	57	 
	SECTION 7.6.

	 	Indemnification
	 	 	58	 
	SECTION 7.7.

	 	Credit Decision
	 	 	58	 
	SECTION 7.8.

	 	Successor Agents
	 	 	58	 
	SECTION 7.9.

	 	Consents and Approvals
	 	 	59	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 	 	 
	CHANGE IN CIRCUMSTANCES

	 
	 	 	 	 	 	 
	SECTION 8.1.

	 	Basis for Determining Interest Rate Inadequate or Unfair
	 	 	60	 
	SECTION 8.2.

	 	Illegality
	 	 	60	 
	SECTION 8.3.

	 	Increased Cost and Reduced Return
	 	 	61	 
	SECTION 8.4.

	 	Taxes
	 	 	62	 
	SECTION 8.5.

	 	Base Rate Loans Substituted for Affected Euro-Dollar Loans
	 	 	65	 
	 
	 	 	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 	 	 
	SECTION 9.1.

	 	Notices
	 	 	66	 
	SECTION 9.2.

	 	No Waivers
	 	 	67	 
	SECTION 9.3.

	 	Expenses; Indemnification
	 	 	67	 
	SECTION 9.4.

	 	Sharing of Set-Offs
	 	 	68	 
	SECTION 9.5.

	 	Amendments and Waivers
	 	 	69	 
	SECTION 9.6.

	 	Successors and Assigns
	 	 	70	 
	SECTION 9.7.

	 	Collateral
	 	 	71	 
	SECTION 9.8.

	 	Governing Law; Submission to Jurisdiction; Judgment Currency
	 	 	72	 
	SECTION 9.9.

	 	Counterparts; Integration; Effectiveness
	 	 	73	 
	SECTION 9.10.

	 	WAIVER OF JURY TRIAL
	 	 	73	 






iii









 






	 	 	 	 	 	 	 
	SECTION 9.11.

	 	Survival
	 	 	73	 
	SECTION 9.12.

	 	Domicile of Loans
	 	 	73	 
	SECTION 9.13.

	 	Limitation of Liability
	 	 	73	 
	SECTION 9.14.

	 	Recourse Obligation
	 	 	73	 
	SECTION 9.15.

	 	Confidentiality
	 	 	74	 
	SECTION 9.16.

	 	Defaulting Lenders
	 	 	74	 
	SECTION 9.17.

	 	Banks’ ERISA Covenant
	 	 	75	 
	SECTION 9.18.

	 	Intentionally Omitted
	 	 	75	 
	SECTION 9.19.

	 	Optional Increase in Commitments
	 	 	75	 
	SECTION 9.20.

	 	Managing Agents, Documentation Agents and Co-Agents
	 	 	76	 
	SECTION 9.21.

	 	USA PATRIOT Act
	 	 	76	 
	SECTION 9.22.

	 	Sumitomo Ceasing to be a Qualified Institutional Investor
	 	 	76	 






EXHIBIT A
– Form of Note

EXHIBIT A-1 – Form of Qualified Borrower Note

EXHIBIT A-2 – Form of Qualified Borrower Undertaking

EXHIBIT B – Form of Transfer Supplement

EXHIBIT C – Form of Qualified Joinder Agreement

EXHIBIT D – Form of Qualified Borrower Guaranty




SCHEDULE 1.1

SCHEDULE 4.4 (b)

SCHEDULE 4.6

SCHEDULE 5.11(c)(1)

SCHEDULE 5.11(c)(2)





iv











 





CREDIT AGREEMENT




          THIS CREDIT AGREEMENT (this “Agreement”) dated as of October 15, 2009 among AMB
PROPERTY, L.P. (the “Borrower”), the Initial Qualified Borrowers, the BANKS listed on the
signature pages hereof, JPMORGAN CHASE BANK, N.A., as Administrative Agent, J.P. MORGAN EUROPE
LIMITED, as Administrative Agent for Euros, SUMITOMO MITSUI BANKING CORPORATION, as Administrative
Agent for Yen , SUMITOMO MITSUI BANKING CORPORATION, as Syndication Agent, J.P. MORGAN SECURITIES
INC., as Lead Arranger and Bookrunner, and CALYON CREDIT AGRICOLE CIB, NEW YORK BRANCH, U.S. BANK
NATIONAL ASSOCIATION and HSBC BANK USA, NATIONAL ASSOCIATION, as Documentation Agents.




W I T N E S S E T H




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




ARTICLE I




DEFINITIONS




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




          “Adjusted EBITDA” means EBITDA for such period minus 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). Adjusted EBITDA includes rental income actually earned and shall
exclude the application of FAS 141, and 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 Euros, and interest and fee payments with respect to Loans
denominated in Euros, J.P. Morgan Europe Limited; (ii) with respect to Notices of Borrowing and the
administration of Loans denominated in Yen, and interest and fee payments with respect to Loans
denominated in Yen, Sumitomo Mitsui Banking Corporation, and (iii) 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 Credit Agreement as the same may from time to time hereafter be
modified, supplemented or amended.




          “Alternate Currency” means the lawful currency of either of (i) the European Economic Union
(Euros) or (ii) Japan (Yen).




          “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, its Domestic Lending Office, and (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar
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




2









 







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
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.




	 	 	 	 	 
	 	 	 	 	Applicable Margin for Euro
	Range of Borrower’s Credit Rating	 	Applicable Margin for Base	 	Dollar/TIBOR Loans (% per
	(S&P/Moody’s Ratings) 	 	Rate Loans(% per annum)	 	annum)
	<BBB-/Baa3 or unrated
	 	2.750	 	3.750
	BBB-/Baa3
	 	2.250	 	3.250
	BBB/Baa2
	 	2.000	 	3.000
	BBB+/Baa1
	 	1.750	 	2.750
	A-/A3 or better
	 	1.50  	 	2.500






          “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.




          “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. For
purposes of this Agreement, J.P. Morgan Securities, Inc. shall not 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.




3









 








          “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) one (1)
month Interbank Offered Rate, plus one percent (1%). 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 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.




          “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





4









 







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, Japanese Yen, Euros or
Pounds Sterling 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.




          “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.




          “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 Dollars or an Alternate Currency (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 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 pursuant to Section 9.19 or in connection with an assignment from an
Assignor. The initial aggregate amount of the Banks’ Commitments is $345,000,000.




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




          “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.




5









 








          “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 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





6









 







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 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 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



7









 






Share of scheduled principal amortization (excluding Balloon Payments) for such period on all
Balance Sheet Indebtedness of Investment Affiliates and Consolidated Subsidiaries.




          “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, as determined by the Administrative Agent, that (a) has
failed to pay over to the Administrative Agent or any other Bank any other amount required to be
paid by it hereunder within three (3) Business Days of the date when due, unless the subject of a
good faith dispute, or (b) (i) become or is insolvent or has a parent company that has become or is
insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or custodian, appointed for it,
or has taken any action in furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment or has a parent company that has become the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or
appointment.




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




          “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.




          “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, including Borrower’s Share of the Consolidated Subsidiary



8









 






Income from Operations for each Consolidated Subsidiary, 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, plus (iv)
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.




          “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.




9









 








          “Euro-Dollar Business Day” means any Business Day on which banks are open for dealings in
Dollar deposits in the London interbank market, and on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) System is open for the settlement of payment in Euros,
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 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 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.




          “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
11a.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 11:00a.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.




10









 








          “Existing Credit Agreement” means the Credit Agreement, dated as of March 27, 2008, among the
Borrower, the Administrative Agent, and the banks party thereto.




          “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.




11









 








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




          “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.




          “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 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 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.




          “Income from Operations” means, for any period, Net Income before the deduction of (i) Taxes,
(ii) minority interests, (iii) gains and losses on asset sales, Debt Restructurings or write-ups or
forgiveness of indebtedness, (iv) gains and losses from extraordinary items, (v) payment of
preferred dividends, calculated in conformity with GAAP, and (vi) an adjustment to exclude the
straight-lining of rents.




          “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 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



12









 






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).




          “Initial Qualified Borrowers” means those Persons set forth on Schedule 1.1(a).




          “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).




          “Interest Period” means: with respect to each Euro-Dollar Borrowing or TIBOR 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 or 6 months
thereafter, 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;




     (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.



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




13









 








          “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 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.




          “Joint Bookrunners” means J.P. Morgan Securities Inc. and Sumitomo Mitsui Banking Corporation,
in their capacity as Joint Bookrunners hereunder.




          “Joint Lead Arrangers” means J.P. Morgan Securities Inc. and Sumitomo Mitsui Banking
Corporation, 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.




14









 








          “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 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.




          “Lending Office” means, as to each Bank, its office, branch or affiliate located at its
address set forth in its Administrative Questionnaire or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Lending Office by notice to each Borrower and the
Administrative Agent.




          “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, the 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 loan made by a Bank pursuant to Section 2.1; 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 “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.




          “Loan Documents” means this Agreement, the Notes and the Guaranty.




          “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.




          “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.




15









 








          “Maturity Date” shall mean the date when all of the Obligations hereunder shall be due and
payable which shall be October 15, 2012, unless otherwise accelerated pursuant to the terms hereof.




          “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-QII Bank” has the meaning set forth in Section 9.22.




16









 








          “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 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 (i) the promissory notes of the Borrower and each Qualified Borrower that is not
a TMK, substantially in the form of Exhibit A and Exhibit A-1 hereto, respectively,
and (ii) the undertakings of each Qualified Borrower that is a TMK, substantially in the form of
Exhibit A-2 hereto, evidencing the obligation of the Borrower or Qualified Borrower, as the
case may be, to repay the Loans, and “Note” means any one of such promissory notes or undertakings
issued hereunder. Each reference in this Agreement to the “Note” of any Bank shall be deemed to
refer to and include any or all Notes, as the context may require.




          “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 controlling such Bank.




          “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.




17









 








          “Permitted Liens” means:





     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



18









 






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




     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 Euros, Frankfurt am Main, Germany, and (b) in the case of Yen, Tokyo, Japan.




          “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.




19









 








          “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.




          “Qualified Borrower” means a (i) a TMK or company (kabushiki kaisha or mochibun kaisha)
organized under the laws of Japan or (ii) a Japan branch of a limited partnership, limited
liability company or other business entity organized under the laws of the United States (including
any state or District of Columbia), duly registered in Japan, which is at least 50% owned, directly
or indirectly, by AMB LP and of which AMB LP (or a Person that is owned and controlled, directly or
indirectly, by AMB LP) is the sole shareholder, general partner or managing member, or otherwise
exercises control over such entity or (iii) 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, and the Indebtedness of which, in all cases, can be
guaranteed by the Guarantors pursuant to the provisions of the Guarantors’ formation documents and
who has been added as a Qualified Borrower hereunder in accordance with Section 2.21(a).




          “Qualified Borrower Joinder Agreements” means, collectively, one or more Qualified Borrower
Joinder Agreements, among Administrative Agent (on behalf of the Banks) and a Qualified Borrower
relating to a Subsidiary which is to become a Qualified Borrower hereunder at any time on or after
the date of this Agreement, the form of which is attached hereto as Exhibit C.




          “Qualified Borrower Joinder Documents” means, as to any Qualified Borrower Joinder Agreement,
collectively, all documents, instruments and certificates required by such Qualified Borrower
Joinder Agreement to be delivered pursuant to the terms thereof.




          “Qualified Borrower Undertaking” means the undertakings of each Qualified Borrower that is a
TMK, substantially in the form of Exhibit A-2 hereto, evidencing the obligation of such
Qualified Borrower to repay the Loans made to such Qualified Borrower.




          “Qualified Borrower Guaranty” means a full and unconditional guaranty of payment in the form
of Exhibit D 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).




          “Qualified Institutional Investor” (tekikaku kikan toshika) has the meaning assigned thereto
in Article 2, Section 3, item 1 of the Securities and Exchange Law (shoken torihiki ho) of Japan
(Law No. 25 of 1948, as amended from time to time) and Article 4, Section 1 of the regulations
relating to the definitions contained in such Article 2.




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




20









 








          “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.




          “Revised Adjusted EBITDA” means, for any period, Adjusted EBITDA for such period, less ((a)
interest income, and (b) a management fee equal to three percent (3%) of consolidated rental
revenue from Real Property Assets of the Borrower and its Consolidated Subsidiaries and Investment
Affiliates for such period, plus (i) actual general and administrative expenses for such period to
the extent deducted in calculating Adjusted EBITDA, and (ii) actual management fees with respect to
Real Property Assets of the Borrower and its Consolidated Subsidiaries and Investment Affiliates
for such period.




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




          “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 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.




21









 








          “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.




          “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.




          “Sumitomo” shall mean Sumitomo Mitsui Banking Corporation, its successors and assigns.




          “Syndication Agent” means Sumitomo Mistui Banking Corporation, 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



22









 






any liability or encumbrance or Lien on the Real Property Assets or any member of the ERISA
Group under ERISA or the Code.




          “TIBOR” means (a) the interest rate offered for Yen deposits for a period comparable to the
applicable Interest Period which appears on the screen display designated as “Reuters Screen TIBM”
under the caption “Average of 10 Banks” on the Reuters Service (or such other screen display or
service as may replace it for the purpose of displaying Tokyo interbank offered rates of prime
banks for Yen deposits) at or about 11:00 am (New York time) on the second Business Day before the
first day of the applicable Interest Period or (b) if no such interest rate is available on the
Reuters Service (or such replacement), the interest rate offered for Yen deposits for a period
comparable to the applicable Interest Period which appears on the screen display designated as
“Euro-Yen TIBOR” on page 23070 of the Telerate Service published by the Japanese Bankers
Association (or such other screen display or service as may replace it for the purpose of
displaying Tokyo interbank offered rates of prime banks for Yen deposits) at or about 11:00 am (New
York time) on the second Business Day before the first day of the applicable Interest Period; or
(c) if no such interest rate is available on the Reuters Service (or such replacement) or the
Telerate Service (or such replacement), the rate per annum which the TIBOR Reference Bank is
offering to leading banks in the Tokyo interbank market for deposits in Yen for a period equal to
the applicable Interest Period at or about 11:00 a.m. (New York time) on the second Business Day
before the first day of the applicable Interest Period; or (d) if no such interest rate is
available on the Reuters Service (or such replacement) or the Telerate Service (or such
replacement) and the TIBOR Reference Bank is unable to provide the rate referred to in (b) above,
the Prime Rate.




          “TIBOR Loan” means a Yen-denominated Loan to be made by a Bank as a TIBOR Loan in accordance
with the provisions of this Agreement.




          “TIBOR Reference Bank” means Sumitomo Mitsui Banking Corporation”.




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




          “TMK” means a special purpose corporation (tokutei mokuteki kaisha) organized under TMK Law.




          “TMK Law” means the Law Regarding Liquidation of Assets (Shisan no Ryudoka ni Kansuru Horitsu)
of Japan (Law No. 105 of 1998, as amended from time to time).




          “Total Asset Value” means, with respect to Borrower and without duplication, (i) the quotient
obtained by dividing (a) (x) (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) of
this definition by (b) the FMV Cap Rate, 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





23









 







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) 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 (v) the 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), as measured on a GAAP basis, plus (vi) Borrower’s Share of the value of any
Construction Assets, Unimproved Assets and any other tangible assets of any Investment Affiliate or
any Consolidated Subsidiary as measured on a GAAP basis. For purposes of the foregoing, a Property
which was a Construction Asset will be deemed to have been acquired on the date it ceases to be a
Construction Asset.




          “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.




          “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 during such period and owned for not less than one (1) Fiscal
Quarter, Unencumbered Net Operating Income attributable to such period occurring after such
acquisition shall be annualized).




          “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 for (i) 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 Property (including Unimproved Assets
and Construction Assets, but excluding interests in participating mortgages





24









 







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, and (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
Lien on any Property to secure any or all of the Obligations shall not be deemed a Negative
Pledge).




          “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.




          “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 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” means 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 Bank” has the meaning set forth in Section 9.22.




          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 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





25











 




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, 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; and 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 or TIBOR Loans
denominated in an Alternate Currency).




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 in Dollars or Alternate Currency, as applicable, to the
Borrower and the Initial Qualified Borrowers, as applicable, pursuant to this Article on the
Effective Date in an amount equal to its Commitment (except that it is understood and agreed that
Loans in Alternate Currencies may be funded on the following Business Day). The initial Borrowing
shall be made on the Effective Date and shall be made from the several Banks ratably in proportion
to their respective Commitments, except that the Alternate Currency Loans shall be funded by each
Bank as indicated on the signature pages hereto. Subject to the provisions of Section 9.19 hereof,
in no event shall the aggregate amount of Loans in Dollars outstanding at any time, exceed
$345,000,000 (as adjusted pursuant to Section 9.19, the “Facility Amount”) less the Dollar
Equivalent Amount of any Loans denominated in Alternate Currencies as of the date that the amount
in Euros and/or Yen of such Loans was determined by the Administrative Agent. For the avoidance of
doubt, Loans denominated in Alternate Currencies shall not be marked to market and accordingly, the
Dollar Equivalent Amount of such Loans from time to time may cause the Dollar Equivalent Amount of
all Loans to exceed the Facility Amount.. In the event that the Facility Amount shall be increased
pursuant to Section 9.19, each Borrowing thereafter shall be in an aggregate principal amount of
$5,000,000, or an integral multiple of $1,000,000 in excess thereof (except that any such Borrowing
may be in the aggregate amount of the Commitments then available to be borrowed). Any amounts
repaid may not be reborrowed.




          SECTION 2.2. Notice of Borrowing. With respect to any 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,




26









 







or (z) the fourth (4th) Euro-Dollar Business Day before each Euro-Dollar
Borrowing or TIBOR 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 or TIBOR Loans, and, if Euro-Dollar Loans are being requested
other than in Dollars, the type and amount of the Alternate Currency being
requested,




               (iv) in the case of a Euro-Dollar Borrowing or TIBOR 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.



          SECTION
2.3. Intentionally Omitted.




          SECTION
2.4. Intentionally Omitted.




          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 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 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 applicable Administrative



27









 




Agent at its address referred to in Section 9.1. Notwithstanding the foregoing, however, with
respect to the initial Borrowing hereunder, such amounts shall be funded into an escrow account
with the Administrative Agent, in accordance with the procedures established by the Administrative
Agent.




               (c) Intentionally Omitted.



               (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 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 be evidenced by a separate Note in an amount



28









 




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 Loans shall mature, and the principal amount thereof shall be due and payable, on the
Maturity Date.



               (e) There shall be no more than five (5) Euro-Dollar and TIBOR Groups of Loans outstanding at
any one time.



          SECTION 2.7. Method of Electing Interest Rates.




               (a) The Loans included in each 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. Thereafter, the Borrower or the applicable Qualified Borrower (or the Borrower on
behalf of the 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 or TIBOR Loans as of any Euro-Dollar
Business Day;




               (ii) if such Loans are Euro-Dollar or TIBOR Loans, the Borrower or the
applicable Qualified Borrower (or the Borrower on behalf of the Qualified Borrower)
may elect to convert all or any portion of such Loans to Base
Rate Loans (but only if such Loans are Dollar denominated) and/or elect to
continue all or any portion of such Loans as Euro-Dollar or TIBOR Loans for an



29









 






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 (no later
than 11:00 am London time in the case of Euro-denominated Loans) 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 in the 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 $1,000,000, (iii) there shall be no more than five (5) Euro-Dollar and TIBOR
Groups of Loans outstanding at any time, (iv) no 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;




               (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 or TIBOR Loans, the duration of the
initial Interest Period applicable thereto; and




               (iv) if such Loans are to be continued as Euro-Dollar or TIBOR 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



30









 




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
such Loans denominated in an Alternate Currency shall continue as Euro-Dollar or TIBOR Loans, as
applicable, with a one (1) month Interest Period.




          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 or TIBOR 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 or TIBOR Loans for such day plus the Adjusted
Interbank Offered Rate or, for any TIBOR Loan, TIBOR, applicable to such Interest Period.



               (c) Intentionally Omitted.



               (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 Interbank
Offered Rate or TIBOR 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) Fees Non-Refundable. All fees set forth in this Agreement 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. The term (the “Term”) of the Commitments (and each Bank’s
obligations to make Loans) shall terminate and expire on the Maturity Date.




31









 







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.




          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 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. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks 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. The Borrower may, upon at least five (5) Euro-Dollar Business
Days’ notice to the Administrative Agent, pay all or any portion of any TIBOR 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 or TIBOR 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. 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 or Group of TIBOR
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 at any time and from time to time cancel all or any part of the
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 such date in accordance with the requirements of Section 2.11(a) and (b).



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



          SECTION
2.12. Intentionally Omitted.




32









 








          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, 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 after receipt thereof distribute
to each Bank its ratable share of each such payment 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 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. 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 or Qualified
Borrower, as the case may be, 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 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.



           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 or TIBOR 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



33









 






borrow any Euro-Dollar or TIBOR 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 or
TIBOR 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 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 the proceeds of the Loans for
general corporate purposes, including, without limitation, the repayment of the Existing Credit
Agreement and for general working capital needs of the Borrower.




          SECTION 2.17. 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 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.



34









 





          SECTION 2.18. Addition of Qualified Borrowers; Release of Qualified Borrowers.




               (a) If after the Closing Date, Borrower desires to cause another Subsidiary which otherwise
satisfies the definition of a Qualified Borrower hereunder to become a Qualified Borrower
hereunder, then Borrower shall so notify the Administrative Agent and, upon satisfaction of the
following conditions, such Subsidiary shall become a Qualified Borrower under this Agreement: (i)
such Subsidiary shall duly execute and deliver to the Administrative Agent applicable Qualified
Borrower Joinder Documents and (ii) such Subsidiary shall satisfy all of the conditions with
respect thereto set forth in the Qualified Borrower Joinder Agreement. The Administrative Agent
shall promptly notify each Bank upon a Subsidiary’s addition as a Qualified Borrower hereunder.
Each such Qualified Borrower shall remain a Qualified Borrower hereunder until released as provided
in Section 2.18(b) below.



               (b) At such time as no Loan is outstanding to any Qualified Borrower, at the option of such
Qualified Borrower or Borrower and upon notice to Administrative Agent, such Qualified Borrower
shall be released as a Qualified Borrower under the Loan Documents, and the Notes or Qualified
Borrower Undertakings, as applicable, executed and delivered by such Qualified Borrower shall be
returned to such Qualified Borrower.



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



35









 




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 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;



               (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



36









 




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;



               (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; and



               (n) all funds necessary to allow the Borrower to terminate the Existing Credit Agreement and
repay the same in full shall be on deposit, in escrow, with the Administrative Agent and the
Administrative Agent shall have received written instructions from the Borrower to immediately
disburse the same in full repayment thereof, together with written confirmation from the Borrower
that the Existing Credit Agreement will thereupon be terminated.



          SECTION 3.2. Borrowings. The obligation of any Bank to make a 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;



               (b) immediately after such Borrowing, the aggregate outstanding principal amount of the Loans
will not exceed the aggregate amount of the Commitments;



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



               (d) 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;



               (e) 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



               (f) 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 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



37









 






Borrower to fail to be in
compliance with any of the covenants contained in this Agreement or in any of the other Loan
Documents.




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




38









 







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 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



39









 




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 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, 2008, 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 December 31, 2008, (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



40









 






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
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, the 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, the
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, (y) a “holding company” or a “subsidiary company” of a “holding company” or an
“affiliate” of either a “holding company” or a “subsidiary company” within the



41









 






meaning of the
Public Utility Holding Company Act of 2005, or (z) subject to any other federal or state law or
regulation which purports to restrict or regulate its ability to borrow money.




          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.



42









 







          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 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 June 30, 2009, 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:



43









 







               (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 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;



44









 





               (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) 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



45









 




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 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



46









 




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 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.



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               (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, however,
such ratio may exceed 0.60:1 for any two (2) consecutive quarters but in no event shall Borrower
permit the ratio of Total Liabilities to Total Asset Value to exceed 0.65:1 at any time.



               (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 1.75:1.



               (c) Secured Debt to Total Asset Value. Borrower shall not permit the ratio of Secured
Debt to Total Asset Value of Borrower to exceed 0.25:1 at any time.



               (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 Two Billion Two Hundred
Million Dollars ($2,200,000,000.00) 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 that are 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 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) Intentionally Omitted.



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               (j) No Liens. Borrower and General Partner shall not, and shall not allow any of their
Subsidiaries, Financing Partnerships or Joint Venture Subsidiaries to, 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, to become subject to a Lien that secures the Indebtedness of
any Person, other than Permitted Liens.



               (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 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.



49









 







               (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.




               (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




50











 




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.




          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






51









 







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 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.






52









 








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 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



53









 




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;



               (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;



54









 





               (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;



               (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 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





55









 







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 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. 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 9.4).






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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 Sumitomo Mitsui Banking
Corporation 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 Sumitomo Mitsui Banking
Corporation 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
Sumitomo Mitsui Banking Corporation, 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 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






57









 







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 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







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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. 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), 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 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





59









 







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 TIBOR Borrowing 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 or TIBOR Loans shall be
suspended and clause (iii) of the definition of Base Rate shall not be given any effect. In such
event unless the Borrower notifies the Administrative Agent on or before the second
(2nd) Euro-Dollar Business Day before, but excluding, the date of any Euro-Dollar or
TIBOR 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,
and 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, 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) to make, maintain or
fund its Euro-Dollar or TIBOR Loans, 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 to make Euro-Dollar Loans, shall be suspended and clause (iii) of the
definition of Base Rate shall not be given any effect. With respect to Euro-Dollar or TIBOR 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 or TIBOR 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 or TIBOR 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.







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          If at any time, it shall be unlawful for any Bank to make, maintain or fund its Euro-Dollar or
TIBOR Loans, the Borrower shall have the right, upon five (5) Business Day’s 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 the date hereof (the “Loan Effective Date”), the adoption of any
applicable law, rule or regulation, or any change in any applicable 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 (or its Applicable Lending Office) with any request or directive (whether or not having
the force of 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



61









 




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 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 Day’s 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 8.4. 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,



62









 




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, (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 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 from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note (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 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, or the Administrative Agent (as the case may be) and, so long as such 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 or the Administrative Agent (as the case may be)
makes demand therefor.



               (e) Each Bank that holds Loans denominated in Yen confirms to the Administrative Agent and to
Borrower (on the date hereof or, in the case of a Bank that holds Loans denominated in Yen which
becomes a party hereto pursuant to a transfer or assignment, on the date on which the relevant
transfer or assignment becomes effective) that it is Qualified Institutional Investor and each Bank
shall promptly notify the Administrative Agent and Borrower if there is any change in its status as
a Qualified Institutional Investor.



63









 





               (f) Each Bank that holds Loans denominated in Yen will promptly on request by any Qualified
Borrower incorporated under the laws of Japan or borrowing through its registered branch in Japan
take all reasonable steps (if any) required to be taken to establish entitlement to exemption for
such Qualified Borrower from withholding under any applicable Japanese laws and any applicable
double tax treaty, including satisfying any reasonable information, reporting or other requirement
and completion and filing of relevant forms, claims, declarations and similar documents and shall
provide such Qualified Borrower with copies of all forms, claims, declarations and similar
documents filed for such purpose.



               (g) Each Bank that holds Loans denominated in Yen which is established under the laws of a
jurisdiction other than Japan and which is acting hereunder through a Lending Office in Japan
agrees that it shall, if necessary, from time to time obtain from the relevant tax authorities a
certificate certifying that such payment constitutes domestic source income (as provided for in
Article 180 of the Income Tax Law (Law No. 33, 1965)) and deliver such certificate to each
Qualified Borrower as required by Article 180, unless prevented from so doing as a result of the
introduction of, or any change in, or any change in the interpretation or the application of, any
law or regulation or as a result of compliance with any law or regulation made after the date of
this Agreement. Upon reasonable demand by Borrower to the Administrative Agent or any applicable
Bank, the Administrative Agent or applicable Bank, as the case may be, shall deliver to Borrower,
or to such government or taxing authority as Borrower may reasonably direct, any form or document
that may be required or reasonably requested in writing in order to allow Borrower or the
applicable 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
Borrower or the applicable Qualified Borrower making such demand and to be executed and to be
delivered with any reasonably required certification.



               (h) 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



64









 




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).




               (i) 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 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.



               (j) 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.



               (k) 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.



               (l) 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 Day’s 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





65












 





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:




               (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 or the Administrative Agent (JPMorgan Chase Bank, N.A.) or the Administrative Agent
(J.P. Morgan Europe Limited) or the Administrative Agent (Sumitomo Mitsui Banking Corporation) , at
its address, telex number or facsimile number set forth on the signature page hereof with duplicate
copies thereof, in the case of the Borrower, to the Borrower, at its address set forth on the
signature page hereof, Attn: General Counsel, as well as to DLA Piper LLP (US), 203 North LaSalle
Street, Suite 1900, Chicago, Illinois 60601, Attention: James M. Phipps, Esq., (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.




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          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.




               (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



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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
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, which is greater than the proportion received by
any 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 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. 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, 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



68









 






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.




          SECTION 9.5. Amendments and Waivers. (a) Any provision of this Agreement or the Notes 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 or the Syndication Agent in their capacity as Administrative Agent or
Syndication Agent, as applicable, are affected thereby, by the Administrative Agent or the
Syndication Agent, as applicable, which shall be deemed to include Section 9.16); provided that no
amendment or waiver with respect to this Agreement, the Notes 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.




               (b) The provisions in Sections 5.1, 5.8 through 5.14 and 6.1(b) through (r) of this Agreement,
as well as the definition of “Applicable Margin” (the language contained therein other than with
respect to the actual margins) and “Investment Grade Rating”, contain essentially the same
provisions with respect to the Guarantor and the Borrower as those contained in Sections 5.1, 5.8
through 5.14 and 6.1(b) through (r) of the Third Amended and Restated Revolving Credit Agreement
(the “Revolver”), dated as of June 1, 2006, among Borrower, the Administrative Agent, as
administrative agent, and the other banks party thereto and in such definition of the Revolver (the
“AMB Revolver Provisions”). In the event that the Borrower or the Administrative Agent under the
Revolver propose to modify, waive or restate, or request a consent or approval with respect to, the
AMB Revolver Provisions (and related definitions) (other than a change limited to the actual
margins) of the Revolver in writing (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) (individually, a “Covenant Modification”), then simultaneously with
the agreement to or granting of such Covenant Modification under the Revolver, this Agreement shall
be deemed modified or restated, or waiver, consent or approval granted, in a manner consistent with
the Covenant Modifications under the Revolver If requested by Borrower or the Administrative
Agent, the Borrower, the Guarantor, the 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. In addition,
the Borrower will be obligated to pay to the Administrative Agent and the Banks the same fee as the
Borrower shall pay to the agents and the lenders under the Revolver in connection with such
modification, restatement, waiver, consent or approval.



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          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 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 which, in the case of the granting of a participation in any Loan denominated in Yen,
are Qualified Institutional Investors (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 which, in the case of any
assignment of any Loan denominated in Yen, is also a Qualified Institutional Investor (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 “B” hereto executed by such
Assignee and such transferor Bank; provided, that such assignment shall be subject to the
Administrative Agent’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 or was a Bank
immediately prior to such assignment, no such consent of



70









 




Borrower shall be required. 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 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 may at any time assign all or any portion of its rights under this Agreement and
its Note, to a Federal Reserve Bank. No such assignment shall release the transferor Bank from its
obligations hereunder.



               (e) 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.



               (f) 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.



               (g) 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




71









 





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 (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 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 irrevocably waives, for
itself and each Qualified Borrower, 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



72









 




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 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 and fully recourse to each Qualified Borrower but only to the extent of
the amount of the Loans to each such Qualified Borrower, as evidenced by its Note or Qualified
Borrower Undertaking. Notwithstanding the foregoing, no recourse under or upon any obligation,
covenant, or agreement contained in this Agreement shall be had against




73









 







(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 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.




               (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a
Defaulting Lender, then for so long as such Bank is a Defaulting Lender: the Commitment and Loans
of such Defaulting Lender shall not be included in determining whether all Banks or the Required
Banks have taken or may take any action hereunder (including any consent to any amendment or waiver
pursuant to Section 9.5), provided that any waiver, amendment or modification requiring the consent
of all Banks or each affected Banks which affects such Defaulting Lender differently than other
affected Banks shall require the consent of such Defaulting Lender.



               (b) If any Lender shall fail to make any payment required to be made by it pursuant to
Sections 2.5(d), 2.13 (b) or 9.3(b), then the Administrative Agent may, in its discretion and
notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the
Administrative Agent for the account of such Bank and for the benefit of the Administrative Agent
to satisfy such Bank’s obligations under such Sections until all such



74









 




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 such Sections; in the case of each of (i) and (ii) above, in any order as determined by the
Administrative Agent in its discretion.”




          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. Intentionally Omitted.




          SECTION 9.19. Optional Increase in Commitments. At any time prior to the date that is the
second anniversary 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 $425,000,000.


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


75









 






reallocated among the Banks such that 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.




          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.




          SECTION 9.22. Sumitomo Ceasing to be a Qualified Institutional Investor.




               (a) Each Bank holding Loans denominated in Yen (each a “Yen Bank”) agrees that it shall
immediately provide notice to the Administrative Agent and Borrower upon its receipt of knowledge
that it will cease to be a Qualified Institutional Investor pursuant to the applicable laws of
Japan.



               (b) In the event that during the Term any Yen Bank ceases to be a Qualified Institutional
Investor (such Bank, a “Non-QII Bank”), (i) it shall immediately provide notice thereof to the
Administrative Agent and Borrower (to the extent it has not already provided such notice pursuant
to 9.22(a) above) and (ii) regardless of whether it has actually delivered any such notice to the
Administrative Agent and/or Borrower, the Administrative Agent shall have the immediate right, and
shall use best efforts, to cause such Non-QII Bank to assign to a Qualified Institutional Investor
all of its rights and obligations under this Agreement, the Notes and the other Loan Documents in
accordance with Section 9.6(c), subject to the terms and conditions of Section 9.6, as applicable.



               (c) In the event the Administrative Agent is unable to cause the assignment of the Non-QII
Bank’s rights and obligations under this Agreement, the Notes and the other Loan Documents,
Borrower shall have the right at any time to pay in full the Loans of such Non-QII Bank. If, upon
payment in full of the Loans of such Non-QII Bank denominated in Yen, such Non-QII Bank does not
have any further Loans outstanding hereunder, such Non-QII Bank shall cease to be a Bank hereunder.



76









 





               (d) Notwithstanding anything to the contrary contained herein, the Borrower or applicable
Qualified Borrower shall have the right at any time to pay in full the Loans denominated in Yen of
any Non-Qii Bank.




77












 





          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:
Address:
	 	(415) 394-9001

Pier 1, Bay 1

San Francisco, California 94111

Attn: Chief Financial Officer






	 	 	 
	 

	 	AMB EUROPEAN INVESTMENTS LLC, a Delaware 
limited liability
company






	 	 	 	 	 
	 

	 	By:
	 	AMB PROPERTY, L.P., a Delaware limited
	 	 	 	 	partnership and its managing member






	 	 	 	 	 
	 

	 	By:
	 	AMB PROPERTY CORPORATION, a
	 

	 	 	 	Maryland corporation and its sole general
	 

	 	 	 	partner






	 	 	 	 	 	 	 
	 

	 	By: 	 	/s/ Thomas Olinger 	 	 
	 

	 	 	 	 

Name: Thomas Olinger
	 	 
	 

	 	 	 	Title: Chief Financial Officer	 	 






	 	 	 
	 

	 	AMB Japan Finance, Y.K., a Japanese tokurei yugen kaisha






	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Michael Augustus Evans 	 	 
	 

	 	 	 	 

Name: Michael Augustus Evans
	 	 
	 

	 	 	 	Title: Director	 	 






TOTAL COMMITMENTS: $345,000,000




 









 





	 	 	 
	 

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






	 	 	 	 	 	 	 
	 

	 	By:	 	Ralph Totoonchie 	 	 
	 

	 	 	 	 

Name: Ralph Totoonchie
	 	 
	 

	 	 	 	Title:   Vice President	 	 






	 	 	 	 	 	 	 
	 

	 	Commitment:
	 	$0	 	 
	 

	 	 	 	€47,780,000	 	 






	 	 	 
	 

	 	Address:
	 

	 	JPMorgan Chase Bank, N.A.
	 

	 	40th Floor
	 

	 	383 Madison Avenue
	 

	 	New York, NY 10179
	 

	 	Attn: Ralph Totoonchie
	 

	 	Facsimile: (917) 463-0120






	 	 	 
	 

	 	JPMorgan Chase Bank, N.A.
	 

	 	Houston Loan and Agency Services
	 

	 	1111 Fannin Street, 10th Floor
	 

	 	Houston, TX 77002
	 

	 	Attn: Angelica Castillo
	 

	 	Telephone: (713) 750-2513
	 

	 	Facsimile: (713) 750-2223
	 

	 	E-Mail: angelica.m.castillo@chase.com






 









 






	 	 	 
	 

	 	J.P. MORGAN EUROPE LIMITED, as Administrative
	 

	 	Agent






	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Clarke 	 	 
	 

	 	 	 	 

Name: S. Clarke
	 	 
	 

	 	 	 	Title:   Vice President	 	 






	 	 	 
	 

	 	J.P. Morgan Europe Limited
	 

	 	125 London Wall
	 

	 	EC2Y5AJ London
	 

	 	England
	 

	 	Telephone: 44-207-777-2940/2343
	 

	 	Facsimile: 44-207-777-2360
	 

	 	E-Mail: Lesley.x.pluck@jpmorgan.com/
	 

	 	ching.loh@jpmorgan.com






2









 





	 	 	 
	 

	 	SUMITOMO MITSUI BANKING CORPORATION,

as Syndication Agent and as a Bank






	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ William M. Ginn 	 	 
	 

	 	 	 	Name: William M. Ginn	 	 
	 

	 	 	 	Title:   Executive Officer	 	 






	 	 	 	 	 	 	 
	 

	 	Commitment:
	 	$0	 	 
	 

	 	 	 	¥6,283,900,000	 	 






	 	 	 
	 

	 	Sumitomo Mitsui Banking Corporation
	 

	 	277 Park Avenue
	 

	 	New York, NY 10172
	 

	 	Attn: John Wichrowski
	 

	 	Telephone: (212) 224-4336
	 

	 	Facsimile: (212) 224-4391
	 

	 	E-Mail: john_wichrowski@smbcgroup.com






 









 






	 	 	 	 	 
	 	CALYON  NEW YORK
BRANCH, as Documentation Agent and as a Bank

 	 
	 	By:  	/s/ John A. Wain 
 	 
	 	 	Name:  	John A. Wain 	 
	 	 	Title:  	Managing Director 	 
	 
	 	By:  	/s/ Daniel J. Reddy
 	 
	 	 	Name:  	 Daniel J. Reddy 	 
	 	 	Title:  	Director 	 



               Commitment: $60,000,000





2









 





	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Documentation Agent and as
a Bank

 	 
	 	By:  	/s/ Ben Lewis 
 	 
	 	 	Name:  	Ben Lewis 	 
	 	 	Title:  	VP 	 
	 




               Commitment: $50,000,000




 









 








	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION, as Documentation Agent
and as a Bank

 	 
	 	By:  	/s/ Jason Huck 
 	 
	 	 	Name:  	Jason Huck 	 
	 	 	Title:  	Vice President, Relationship Manager 	 
	 




               Commitment: $50,000,000



2









 





	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA, ACTING
THROUGH
 ITS SAN FRANCISCO AGENCY, as a Bank

 	 
	 	By:  	/s/ Teresa Wu 
 	 
	 	 	Name:  	Teresa Wu 	 
	 	 	Title:  	Director 	 
	 



               Commitment: $25,000,000




3









 








	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as a Bank

 	 
	 	By:  	/s/ Karen Kennedy 
 	 
	 	 	Name:  	Karen Kennedy 	 
	 	 	Title:  	Vice President 	 
	 



               Commitment: $20,000,000





4











 





EXHIBIT A




NOTE




New York, New York

October 15, 2009




     For value received, AMB PROPERTY, L.P., a Delaware limited partnership (the
“Borrower”), promises to pay to the order of                                          (the
“Bank”) the unpaid principal amount of each Loan made by the Bank to the Borrower pursuant
to the Credit Agreement referred to below on the maturity date provided for in the Credit
Agreement. The Borrower further promises to pay interest on the unpaid principal amount of each
such Loan from the date advanced until such principal amount is paid in full on the dates and at
the rate or rates provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other immediately
available funds to JPMorgan Chase Bank, N.A. for the account of the Bank, pursuant to the
following wire transfer instructions:



JPMorgan Chase Bank, N.A.

ABA/Routing No.: 021 000 021

Account No.: 9008113381H0166

Attention: Angelica Castillo Phone: 713-750-2513 Fax: 713-750-2223

Reference: AMB Property LP




     All Loans made by the Bank, the respective types and maturities thereof and all repayments of
the principal thereof shall be recorded by the Bank and, if the Bank so elects in connection with
any transfer or enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.



     This note is one of the Notes referred to in, and is executed and delivered pursuant to and
subject to all of the terms of, the Credit Agreement, dated as of the date hereof, among the
Borrower, the Initial Qualified Borrowers, the banks listed on the signature pages thereof,
JPMorgan Chase Bank, N.A., J.P. Morgan Europe Limited and Sumitomo Mitsui Banking Corporation, as
Administrative Agents, and J.P. Morgan Securities Inc. and Sumitomo Mitsui Banking Corporation, as
Joint Lead Arrangers and Joint Bookrunners (as the same may be amended from time to time, the
“Credit Agreement”). Capitalized terms used herein but not otherwise defined shall have
the meanings ascribed to them in the Credit Agreement. The terms and conditions of the Credit
Agreement are hereby incorporated in their entirety by reference as though fully set forth herein.
Upon the occurrence of certain Events of Default as more particularly described in the Credit
Agreement, the unpaid principal amount evidenced by this Note shall become, and upon the occurrence
and during the continuance of certain other Events



 









 




of Default, such unpaid principal amount may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in
the Credit Agreement.




     Demand, presentment, diligence, protest and notice of nonpayment are hereby waived by the
Borrower.



     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.



[SIGNATURE PAGE FOLLOWS]




 









 










	 	 	 	 	 
	 	AMB PROPERTY, L.P.,

a Delaware limited partnership
 
	 
	 	By:
AMB Property Corporation, a Maryland corporation

and its sole general partner

 	 
	 	By: 	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Note (cont’d)




LOANS AND PAYMENTS OF PRINCIPAL




 





	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Amount of	 	 	 	 
	 
	 	Amount of	 	Type of	 	Principal	 	Maturity	 	Notation
	Date
	 	Loan	 	Loan	 	Repaid	 	Date	 	Made By
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 





 









 






EXHIBIT A-1




QUALIFIED BORROWER NOTE




New York, New York

October __, 2009




     For value received,                                         , a                     
                     (the “Qualified Borrower”),
promises to pay to the order of                                          (the “Bank”) the unpaid
principal amount of each Loan made by the Bank to the Qualified Borrower pursuant to the Credit
Agreement referred to below on the maturity date provided for in the Credit Agreement. The
Qualified Borrower further promises to pay interest on the unpaid principal amount of each such
Loan from the date advanced until such principal amount is paid in full on the dates and at the
rate or rates provided for in the Credit Agreement. All such payments of principal and interest
shall be made in [Euros/Yen] in immediately available funds to [J.P. Morgan Europe Limited] for
the account of the Bank, pursuant to the following wire transfer instructions:



JPMorgan Chase Bank, N.A.

ABA #

Account #

Attention:

Reference:




     All Loans made by the Bank, the respective types and maturities thereof and all repayments of
the principal thereof shall be recorded by the Bank and, if the Bank so elects in connection with
any transfer or enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Qualified Borrower hereunder or under the Credit Agreement.



     This note is one of the Notes referred to in, and is executed and delivered pursuant to and
subject to all of the terms of, the Credit Agreement, dated as of the date hereof, among the AMB
Property, L.P., the other Initial Qualified Borrower, the banks listed on the signature pages
thereof, JPMorgan Chase Bank, N.A., J.P. Morgan Europe Limited and Sumitomo Mitsui Banking
Corporation, as Administrative Agents, and J.P. Morgan Securities Inc. and Sumitomo Mitsui Banking
Corporation, as Joint Lead Arrangers and Joint Bookrunners (as the same may be amended from time to
time, the “Credit Agreement”). Capitalized terms used herein but not otherwise defined
shall have the meanings ascribed to them in the Credit Agreement. The terms and conditions of the
Credit Agreement are hereby incorporated in their entirety by reference as though fully set forth
herein. Upon the occurrence of certain Events



 









 




of Default as more particularly described in the
Credit Agreement, the unpaid principal amount evidenced by this Note shall become, and upon the
occurrence and during the continuance of certain other Events of Default, such unpaid principal
amount may be declared to be, due and payable in the manner, upon the conditions and with the
effect provided in the Credit Agreement.




     Demand, presentment, diligence, protest and notice of nonpayment are hereby waived by the
Qualified Borrower.



     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.



[SIGNATURE PAGE FOLLOWS]




 









 





	 	 	 	 	 
	 	                                        ,

a                                       

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Note (cont’d)




LOANS AND PAYMENTS OF PRINCIPAL




 





	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Amount of	 	 	 	 
	 
	 	Amount of	 	Type of	 	Principal	 	Maturity	 	Notation
	Date
	 	Loan	 	Loan	 	Repaid	 	Date	 	Made By
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 






 











 






EXHIBIT A-2

UNDERTAKING




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	New York, New York
	JPY

	 	 	 	 	 	, 	200___
	 

	 	 
	 	 	 	 	 	 





          UNDERTAKING,
dated as of                     , 200___ (this “Undertaking”), by [                          
              ]
TMK, a Japan tokutei mokuteki kaisha (the “Borrower”), in favor of SUMITOMO MITSUI BANKING
CORPORATION (the “Administrative Agent”).




          For value received, the Borrower undertakes to pay to the order of the Administrative Agent
the unpaid principal amount of each Loan made by any of the Banks to the Borrower pursuant to the
Credit Agreement referred to below on the maturity date provided for in the Credit Agreement. The
Borrower further undertakes to pay interest on the unpaid principal amount of each such Loan from
the date advanced until such principal amount is paid in full on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and interest shall be made in
lawful money of Japan to the Administrative Agent for the account of the Banks, pursuant to wire
transfer instructions given by the Administrative Agent from time to time.




          All Loans made by the Banks, the respective types and maturities thereof and all repayments of
the principal thereof shall be recorded by the Administrative Agent and, if the Administrative
Agent so elects in connection with any transfer or enforcement hereof, appropriate notations to
evidence the foregoing information with respect to each such Loan then outstanding may be endorsed
by the Administrative Agent on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Administrative Agent to make
any such recordation or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.




          This undertaking is one of the Qualified Borrower Undertakings referred to in, and is executed
and delivered pursuant to and subject to all of the terms of, the Credit Agreement, dated as of the
date hereof, among the AMB Property, L.P., the Borrower, the other Initial Qualified Borrower, the
banks listed on the signature pages thereof, JPMorgan Chase Bank, N.A., J.P. Morgan Europe Limited
and Sumitomo Mitsui Banking Corporation, as Administrative Agents, and J.P. Morgan Securities Inc.
and Sumitomo Mitsui Banking Corporation, as Joint Lead Arrangers and Joint Bookrunners (as the same
may be amended from time to time, the “Credit Agreement”). Capitalized terms used herein
but not otherwise defined shall have the meanings ascribed to them in the Credit Agreement. The
terms and conditions of the Credit Agreement are hereby incorporated in their entirety by reference
as though fully set forth herein. Upon the occurrence of certain Events of Default as more
particularly described in the Credit Agreement, the unpaid principal amount evidenced by this
Undertaking shall become, and upon the occurrence and during the continuance of certain other
Events of Default, such unpaid principal amount may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit Agreement.




          Demand, presentment, diligence, protest and notice of nonpayment are hereby waived by the
Borrower.




 









 








          This Undertaking is being executed outside of Japan.




          THIS UNDERTAKING SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.




[SIGNATURE PAGE FOLLOWS]




[                                        ]




	 	 	 	 	 
	 	By:  	
 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT B




TRANSFER SUPPLEMENT





     TRANSFER
SUPPLEMENT (this “Transfer Supplement”) dated as of                     , 200___ between
                                         (the “Assignor”) and                                  
        having an address at
                                         (the “Purchasing Bank”).



W I T
N E S S E T H:




     WHEREAS, the Assignor has made loans to AMB Property, L.P., a Delaware limited partnership
(the “Borrower”), pursuant to the Credit Agreement, dated as of October ___, 2009, among the
Borrower, the Initial Qualified Borrowers, the banks listed on the signature pages thereof,
JPMorgan Chase Bank, N.A., as Administrative Agent, and J.P. Morgan Securities Inc. and Sumitomo
Mitsui Banking Corporation, as Joint Lead Arrangers and Joint Bookrunners (the “Credit Agreement”).
All capitalized terms used and not otherwise defined herein shall have the respective meanings set
forth in the Credit Agreement;



     WHEREAS, the Purchasing Bank desires to purchase and assume from the Assignor, and the
Assignor desires to sell and assign to the Purchasing Bank, certain rights, title, interest and
obligations under the Credit Agreement;



     NOW, THEREFORE, IT IS AGREED:



     1. In consideration of the amount set forth in the receipt (the “Receipt”) given by
Assignor to Purchasing Bank of even date herewith, and transferred by wire to Assignor, the
Assignor hereby assigns and sells, without recourse, representation or warranty except as
specifically set forth herein, to the Purchasing Bank, and the Purchasing Bank hereby purchases and
assumes from the Assignor, a ___% interest (the “Purchased Interest”) of the Loans
constituting a portion of the Assignor’s rights and obligations under the Credit Agreement as of
the Effective Date (as defined below) including, without limitation, such percentage interest of
the Assignor in any Loans owing to the Assignor, any Note held by the Assignor, any Loan Commitment
of the Assignor and any other interest of the Assignor under any of the Loan Documents.



     2. The Assignor (i) represents and warrants that as of the date hereof the aggregate
outstanding principal amount of its share of the Loans owing to it (without giving effect to
assignments thereof which have not yet become effective) is $_________; (ii) represents and warrants
that it is the legal and beneficial owner of the interests being assigned by it hereunder and that
such interests are free and clear of any adverse claim; (iii) represents and warrants that it has
not received any notice of Default or Event of Default from the Borrower; (iv) represents and
warrants that is has full power and authority to execute and deliver, and perform under, this
Transfer Supplement, and all necessary corporate and/or partnership action has been taken to
authorize, and all approvals and consents have been obtained for, the execution, delivery and
performance thereof; (v) represents and warrants that this Transfer Supplement constitutes its
legal, valid and binding obligation enforceable in accordance with its terms; (vi) makes no



 









 




representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations (or the truthfulness or accuracy thereof) made in or in connection
with the Credit Agreement, or the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, or the other Loan
Documents or any other instrument or document furnished pursuant thereto; and (vii) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower or the performance or observance by the Borrower of any of its obligations under the
Credit Agreement or the other Loan Documents or any other instrument or document furnished pursuant
thereto. Except as specifically set forth in this Paragraph 2, this assignment shall be without
recourse to Assignor.




     3. The Purchasing Bank (i) confirms that it has received a copy of the Credit Agreement, and
the other Loan Documents, together with such financial statements and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Transfer Supplement and to become a party to the Credit Agreement, and has not relied on any
statements made by Assignor; (ii) agrees that it will, independently and without reliance upon any
of the Administrative Agent, the Documentation Agent, the Syndication Agent, the Assignor or any
other Bank and based on such documents and information as it shall deem appropriate at the time,
continue to make its own appraisal of and investigation into the business, operations, property,
prospects, financial and other conditions and creditworthiness of the Borrower and will make its
own credit analysis, appraisals and decisions in taking or not taking action under the Credit
Agreement, and the other Loan Documents; (iii) appoints and authorizes the Administrative Agent,
the Documentation Agent and the Syndication Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement, and the other Loan Documents as are delegated to
such agents by the terms thereof, together with such powers as are incidental thereto; (iv) agrees
that it will be bound by and perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a Bank; (v) specifies as
its addresses for notices, its Domestic Lending Office and its Eurodollar Lending office, the
addresses and offices set forth beneath its name on the signature page hereof; (vi) represents and
warrants that it has full power and authority to execute and deliver, and perform under, this
Transfer Supplement, and all necessary corporate and/or partnership action has been taken to
authorize, and all approvals and consents have been obtained for, the execution, delivery and
performance thereof; (vii) represents and warrants that this Transfer Supplement constitutes its
legal, valid and binding obligation enforceable in accordance with its terms; and (viii) represents
and warrants that the interest being assigned hereunder is being acquired by it for its own
account, for investment purposes only and not with a view to the public distribution thereof and
without any present intention of its resale in either case that would be in violation of applicable
securities laws [and (ix) represents and warrants that it satisfies the requirements of a Qualified
Institutional Investor].1.



     4. This Transfer Supplement shall be effective on the date (the “Effective Date”) on
which all of the following have occurred (i) it shall have been executed and delivered by the





 




			
	1	 	Include, if interest in any Loan denominated in Yen is
being assigned.




 









 









parties hereto, (ii) copies hereof shall have been delivered to the Administrative Agent and
the Borrower, (iii) the Purchasing Bank shall have received an original Note, and (iv) the
Purchasing Bank shall have paid to the Assignor the agreed purchase price as set forth in the
Receipt.




     5. On and after the Effective Date, (i) the Purchasing Bank shall be a party to the Credit
Agreement and, to the extent provided in this Transfer Supplement, have the rights and obligations
of a Bank thereunder and be entitled to the benefits and rights of the Banks thereunder and (ii)
the Assignor shall, to the extent provided in this Transfer Supplement as to the Purchased
Interest, relinquish its rights and be released from its obligations under the Credit Agreement.



     6. From and after the Effective Date, the Assignor shall cause the Administrative Agent to
make all payments under the Credit Agreement, and the Notes in respect of the Purchased Interest
assigned hereby (including, without limitation, all payments of principal, fees and interest with
respect thereto and any amounts accrued but not paid prior to such date) to the Purchasing Bank.



     7. This Transfer Supplement may be executed in any number of counterparts which, when taken
together, shall be deemed to constitute one and the same instrument.



     8. Assignor hereby represents and warrants to Purchasing Bank that it has made all payments
demanded to date by JPMorgan Chase Bank, N.A., as Administrative Agent, in connection with the
Assignor’s Pro Rata Share of the obligation to reimburse the Agent for its expenses and made all
Loans required. In the event JPMorgan Chase Bank, N.A, as Administrative Agent, shall demand
reimbursement for fees and expenses from Purchasing Bank for any period prior to the Effective
Date, Assignor hereby agrees to promptly pay JPMorgan Chase Bank, N.A, as Administrative Agent,
such sums directly, subject, however, to Paragraph 12 hereof.



     9. Assignor will, at the cost of Assignor, and without expense to Purchasing Bank, do,
execute, acknowledge and deliver all and every such further acts, deeds, conveyances, assignments,
notices of assignments, transfers and assurances as Purchasing Bank shall, from time to time,
reasonably require, for the better assuring, conveying, assigning, transferring and confirming unto
Purchasing Bank the property and rights hereby given, granted, bargained, sold, aliened, enfeoffed,
conveyed, confirmed, assigned and/or intended now or hereafter so to be, on which Assignor may be
or may hereafter become bound to convey or assign to Purchasing Bank, or for carrying out the
intention or facilitating the performance of the terms of this Agreement or for filing, registering
or recording this Agreement.



     10. The parties agree that no broker or finder was instrumental in bringing about this
transaction. Each party shall indemnify, defend the other and hold the other free and harmless
from and against any damages, costs or expenses (including, but not limited to, reasonable
attorneys’ fees and disbursements) suffered by such party arising from claims by any broker or
finder that such broker or finder has dealt with said party in connection with this transaction.



     11. Subject to the provisions of Paragraph 12 hereof, if, with respect to the Purchased
Interest only, Assignor shall on or after the Effective Date receive (a) any cash, note,
securities,



 









 




property, obligations or other consideration in respect of or relating to the Loan or the Loan
Documents or issued in substitution or replacement of the Loan or the Loan Documents, (b) any cash
or non-cash consideration in any form whatsoever distributed, paid or issued in any bankruptcy
proceeding in connection with the Loan or the Loan Documents or (c) any other distribution (whether
by means of repayment, redemption, realization of security or otherwise), Assignor shall accept the
same as Purchasing Bank’s agent and hold the same in trust on behalf of and for the benefit of
Purchasing Bank, and shall deliver the same forthwith to Purchasing Bank in the same form received,
with the endorsement (without recourse) of Assignor when necessary or appropriate. If the Assignor
shall fail to deliver any funds received by it within the same Business Day of receipt, unless such
funds are received by Assignor after 4:00 p.m., Eastern Standard Time, then the following Business
Day after receipt, said funds shall accrue interest at the Federal Funds Rate and in addition to
promptly remitting said amount, Assignor shall remit such interest from the date received to the
date such amount is remitted to the Purchasing Bank.




     12. Assignor and Purchasing Bank each hereby agree to indemnify and hold harmless the other,
each of its directors and each of its officers in connection with any claim or cause of action
based on any matter or claim based on the acts of either while acting as a Bank under the Credit
Agreement. Promptly after receipt by the indemnified party under this Section of notice of the
commencement of any action, such indemnified party shall notify the indemnifying party in writing
of the commencement thereof. If any such action is brought against any indemnified party and that
party notifies the indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein, and to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such indemnified party, and after receipt
of notice from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof. In no event shall the indemnified party settle or consent to
a settlement of such cause of action or claim without the consent of the indemnifying party.



     13. THIS TRANSFER SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.



     14. On or promptly after the Effective Date, Borrower, Administrative Agent, Assignor and
Purchasing Bank shall make appropriate arrangements so that a Note executed by Borrower, dated the
Effective Date is issued to Purchasing Bank.



 









 





     [15. On or before the Effective Date, Purchasing Bank shall comply with the provisions of
Section 8.4(d) of the Credit Agreement.] [Include only if Purchasing Bank is a foreign
institution.]



	 	 	 	 	 
	 	[Purchasing Bank]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Notice Address:

Domestic Lending Office:

Eurodollar Lending Office:
 	 



	 	 	 	 	 
	 	[Assignor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 	 	 
	Receipt Acknowledged
this
                     day of                     ,  200_:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A.,	 	 	 	 
	as Administrative Agent	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	 	 	 
	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	[Accepted and
Agreed – if applicable:]	 	 
	 
	 	 	 	 	 	 	 	 
	AMB PROPERTY, L.P.,	 	 	 	 
	a Delaware limited partnership	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:	 	AMB Property Corporation, a Maryland corporation
	 	 	and its sole general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 






 









 






EXHIBIT C




FORM OF QUALIFIED BORROWER JOINDER AGREEMENT




 









 





EXHIBIT D




FORM OF QUALIFIED BORROWER GUARANTY




 









 





SCHEDULE 1.1




Initial Unencumbered Properties




 









 





SCHEDULE 1.1(a)




Initial Qualified Borrowers




          AMB Japan Finance Y.K., a Japanese tokurei yugen kaisha




          AMB European Investments, LLC, a Delaware limited liability company





 









 








SCHEDULE 4.4 (b)




Disclosure of



Additional Material Indebtedness




None




 









 





SCHEDULE 4.6




Borrower and General Partner ERISA Plans




     The employees of Borrower may currently participate in a 401(k) Plan.



     Other benefits for employees include: health care plans, dental care, vision care, stock
option and incentive plan, non-qualified deferred compensation plan (for officers only), life
insurance and accidental death and dismemberment plan, flexible spending account, travel/accident
insurance, short-term disability, long-term disability, sick time, vacation time, personal days,
holidays, employee assistance program, work/life benefits, and direct paycheck deposit.



 









 





SCHEDULE 5.11(c)(1)

Interests owned by General Partner




AMB Property Holding Corporation



AMB Property Holding II
Corporation

AMB Property Holding III Corporation

Texas AMB I, LLC




 









 








SCHEDULE 5.11(c)(2)

General Partner owned Interests




AMB Property Holding Corporation



AMB Property Holding II Corporation

AMB Property Holding III Corporation

Texas AMB I, LLC