exv10w1



 





EXHIBIT 10.1




EXECUTION VERSION




$1,119,343,312




CREDIT AGREEMENT




Dated as of July 11, 2007




among




ProLogis North American Closed-End Industrial Fund REIT II LLC

as Term Borrower




and




ProLogis North American Closed-End Industrial Fund Sub, LP

as Convertible Borrower




and




ProLogis North American Closed-End Industrial Fund, LP

as Holdings



and




The Lenders Party Hereto




and




Citicorp North America, Inc.

as Administrative Agent




Citigroup Global Markets Inc.

as Book Manager and Arranger




Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, New York 10153-0119




 









 





	 	 	 	 	 
	ARTICLE I. DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
	 	 	1	 
	Section 1.1 Defined Terms
	 	 	1	 
	Section 1.2 Computation of Time Periods
	 	 	20	 
	Section 1.3 Accounting Terms and Principles
	 	 	20	 
	Section 1.4 Certain Terms
	 	 	21	 
	ARTICLE II. THE FACILITIES
	 	 	21	 
	Section 2.1 The Commitments
	 	 	21	 
	Section 2.2 Borrowing Procedures
	 	 	22	 
	Section 2.3 [Intentionally Omitted]
	 	 	23	 
	Section 2.4 [Intentionally Omitted]
	 	 	23	 
	Section 2.5 [Intentionally Omitted]
	 	 	23	 
	Section 2.6 Repayment of Loans
	 	 	23	 
	Section 2.7 Evidence of Debt
	 	 	23	 
	Section 2.8 Optional Prepayments
	 	 	24	 
	Section 2.9 Mandatory Prepayments
	 	 	24	 
	Section 2.10 Interest
	 	 	25	 
	Section 2.11 Conversion/Continuation Option
	 	 	25	 
	Section 2.12 Fees
	 	 	26	 
	Section 2.13 Payments and Computations
	 	 	26	 
	Section 2.14 Special Provisions Governing Eurodollar Rate Loans
	 	 	28	 
	Section 2.15 Capital Adequacy
	 	 	30	 
	Section 2.16 Taxes
	 	 	30	 
	Section 2.17 Substitution of Lenders
	 	 	32	 
	Section 2.18 Delay in Requests
	 	 	33	 
	ARTICLE III. CONDITIONS TO LOANS
	 	 	33	 
	Section 3.1 Conditions Precedent to Initial Loans
	 	 	33	 
	Section 3.2 Determinations of Initial Borrowing Conditions
	 	 	36	 
	ARTICLE IV. REPRESENTATIONS AND WARRANTIES
	 	 	36	 
	Section 4.1 Corporate Existence; Compliance with Law
	 	 	36	 
	Section 4.2 Corporate Power; Authorization; Enforceable Obligations
	 	 	37	 
	Section 4.3 Ownership of Borrowers; Subsidiaries
	 	 	37	 
	Section 4.4 Financial Statements
	 	 	38	 
	Section 4.5 Intentionally Omitted
	 	 	38	 
	Section 4.6 Solvency
	 	 	38	 
	Section 4.7 Litigation
	 	 	38	 






 









 






	 	 	 	 	 
	Section 4.8 Taxes
	 	 	39	 
	Section 4.9 Full Disclosure
	 	 	39	 
	Section 4.10 Margin Regulations
	 	 	39	 
	Section 4.11 No Burdensome Restrictions; No Defaults
	 	 	39	 
	Section 4.12 Investment Company Act
	 	 	39	 
	Section 4.13 Use of Proceeds
	 	 	40	 
	Section 4.14 Insurance
	 	 	40	 
	Section 4.15 Labor Matters
	 	 	40	 
	Section 4.16 ERISA
	 	 	40	 
	Section 4.17 Environmental Matters
	 	 	41	 
	Section 4.18 [Intentionally Omitted]
	 	 	41	 
	Section 4.19 Title; Real Property
	 	 	41	 
	Section 4.20 Related Documents
	 	 	42	 
	ARTICLE V. FINANCIAL COVENANTS
	 	 	42	 
	Section 5.1 Maximum Leverage Ratio
	 	 	43	 
	Section 5.2 [Intentionally Omitted]
	 	 	43	 
	Section 5.3 Minimum Fixed Charge Coverage Ratio
	 	 	43	 
	Section 5.4 [Intentionally Omitted]
	 	 	43	 
	Section 5.5 Capital Expenditures
	 	 	43	 
	ARTICLE VI. REPORTING COVENANTS
	 	 	43	 
	Section 6.1 Financial Statements
	 	 	43	 
	Section 6.2 Default Notices
	 	 	44	 
	Section 6.3 Litigation
	 	 	44	 
	Section 6.4 Notices under Related Documents
	 	 	45	 
	Section 6.5 Labor Relations
	 	 	45	 
	Section 6.6 [Intentionally Omitted]
	 	 	45	 
	Section 6.7 ERISA Matters
	 	 	45	 
	Section 6.8 Environmental Matters
	 	 	45	 
	Section 6.9 Other Information
	 	 	45	 
	ARTICLE VII. AFFIRMATIVE COVENANTS
	 	 	46	 
	Section 7.1 Preservation of Corporate Existence, Etc.
	 	 	46	 
	Section 7.2 Compliance with Laws, Etc.
	 	 	46	 
	Section 7.3 [Intentionally Omitted]
	 	 	46	 
	Section 7.4 Payment of Taxes, Etc.
	 	 	46	 
	Section 7.5 Maintenance of Insurance
	 	 	46	 






 









 






	 	 	 	 	 
	Section 7.6 Access
	 	 	46	 
	Section 7.7 Keeping of Books
	 	 	47	 
	Section 7.8 Maintenance of Properties, Etc.
	 	 	47	 
	Section 7.9 Application of Proceeds
	 	 	47	 
	Section 7.10 Environmental
	 	 	47	 
	Section 7.11 Conversion
	 	 	47	 
	Section 7.12 [Intentionally Omitted]
	 	 	47	 
	Section 7.13 [Intentionally Omitted]
	 	 	47	 
	Section 7.14 Hedging Contracts
	 	 	47	 
	ARTICLE VIII. NEGATIVE COVENANTS
	 	 	48	 
	Section 8.1 Indebtedness
	 	 	48	 
	Section 8.2 Liens, Etc.
	 	 	49	 
	Section 8.3 Investments
	 	 	50	 
	Section 8.4 Sale of Assets
	 	 	50	 
	Section 8.5 Restricted Payments
	 	 	51	 
	Section 8.6 [Intentionally Omitted]
	 	 	52	 
	Section 8.7 Restriction on Fundamental Changes
	 	 	52	 
	Section 8.8 Change in Nature of Business
	 	 	52	 
	Section 8.9 Transactions with Affiliates
	 	 	52	 
	Section 8.10 Limitations on Restrictions on Subsidiary Distributions; No New Negative Pledge
	 	 	52	 
	Section 8.11 Modification of Constituent Documents
	 	 	53	 
	Section 8.12 Modification of Related Documents
	 	 	53	 
	Section 8.13 [Intentionally Omitted]
	 	 	53	 
	Section 8.14 Accounting Changes; Fiscal Year
	 	 	53	 
	Section 8.15 Margin Regulations
	 	 	53	 
	Section 8.16 [Intentionally Omitted]
	 	 	53	 
	Section 8.17 No Speculative Transactions
	 	 	53	 
	Section 8.18 Compliance with ERISA
	 	 	53	 
	ARTICLE IX. EVENTS OF DEFAULT
	 	 	54	 
	Section 9.1 Events of Default
	 	 	54	 
	Section 9.2 Remedies
	 	 	55	 
	Section 9.3 [Intentionally Omitted]
	 	 	56	 
	Section 9.4 Rescission
	 	 	56	 
	ARTICLE X. THE ADMINISTRATIVE AGENT
	 	 	56	 
	Section 10.1 Authorization and Action
	 	 	56	 






 









 






	 	 	 	 	 
	Section 10.2 Administrative Agent’s Reliance, Etc.
	 	 	57	 
	Section 10.3 Posting of Approved Electronic Communications
	 	 	57	 
	Section 10.4 The Administrative Agent Individually
	 	 	58	 
	Section 10.5 Lender Credit Decision
	 	 	58	 
	Section 10.6 Indemnification
	 	 	59	 
	Section 10.7 Successor Administrative Agent
	 	 	59	 
	Section 10.8 Concerning the Collateral and the Collateral Documents
	 	 	60	 
	ARTICLE XI. MISCELLANEOUS
	 	 	61	 
	Section 11.1 Amendments, Waivers, Etc.
	 	 	61	 
	Section 11.2 Assignments and Participations
	 	 	62	 
	Section 11.3 Costs and Expenses
	 	 	65	 
	Section 11.4 Indemnities
	 	 	66	 
	Section 11.5 Limitation of Liability
	 	 	67	 
	Section 11.6 Right of Set-off
	 	 	67	 
	Section 11.7 Sharing of Payments, Etc.
	 	 	68	 
	Section 11.8 Notices, Etc.
	 	 	68	 
	Section 11.9 No Waiver; Remedies
	 	 	70	 
	Section 11.10 Binding Effect
	 	 	70	 
	Section 11.11 Governing Law
	 	 	70	 
	Section 11.12 Submission to Jurisdiction; Service of Process
	 	 	70	 
	Section 11.13 Waiver of Jury Trial
	 	 	71	 
	Section 11.14 Marshaling; Payments Set Aside
	 	 	71	 
	Section 11.15 Section Titles
	 	 	71	 
	Section 11.16 Execution in Counterparts
	 	 	71	 
	Section 11.17 Entire Agreement
	 	 	71	 
	Section 11.18 Confidentiality
	 	 	71	 
	Section 11.19 Patriot Act Notice
	 	 	72	 
	Section 11.20 Several Obligations
	 	 	72	 






 









 






	 	 	 	 	 
	Schedules
	 	 	 	 
	Schedule I

	 	—
	 	Commitments
	Schedule II

	 	—
	 	Applicable Lending Offices and Addresses for Notices
	Schedule III

	 	—
	 	Valuation Rate
	Schedule 2.6

	 	—
	 	Conversion of Convertible Note
	Schedule 4.2

	 	—
	 	Consents
	Schedule 4.3

	 	—
	 	Ownership of Subsidiaries
	Schedule 4.7

	 	—
	 	Litigation
	Schedule 4.15

	 	—
	 	Labor Matters
	Schedule 4.16

	 	—
	 	List of Plans
	Schedule 4.17

	 	—
	 	Environmental Matters
	Schedule 4.19

	 	—
	 	Real Property
	Schedule 8.2

	 	—
	 	Existing Liens
	Schedule 8.3

	 	—
	 	Existing Investments
	 
	 	 	 	 
	Exhibits

	 
	 	 	 	 
	Exhibit A

	 	—
	 	Form of Assignment and Acceptance
	Exhibit B-1

	 	—
	 	Form of Term Loan Note
	Exhibit B-2

	 	—
	 	Form of Convertible Note
	Exhibit C

	 	—
	 	Form of Notice of Borrowing
	Exhibit E

	 	—
	 	Form of Notice of Conversion or Continuation
	Exhibit F

	 	—
	 	Form of Pledge Agreement






 









 






          Credit Agreement, dated as of July 11, 2007, among ProLogis North American Closed-End
Industrial Fund REIT II LLC, a Delaware limited liability company (the “Term Borrower”), ProLogis
North American Closed-End Industrial Fund Sub, LP, a Delaware limited partnership (the “Convertible
Borrower” and, together with the Term Borrower, the “Borrowers”), ProLogis North American
Closed-End Industrial Fund, LP, a Delaware limited partnership (“Holdings”), the Lenders (as
defined below) and Citicorp North America, Inc. (“Citicorp”), as agent for the Lenders (in such
capacity, and as agent for the Secured Parties under the Collateral Documents, the
“Administrative Agent”).



Witnesseth




          Whereas, the Borrowers have requested that the Lenders make available for the purposes
specified in this Agreement (i) a senior secured term loan facility and (ii) a convertible secured
term loan facility; and



          Whereas, the Lenders are willing to make available to the Borrowers such facilities upon the
terms and subject to the conditions set forth herein;



          Now, Therefore, in consideration of the premises and the covenants and agreements contained
herein, the parties hereto hereby agree as follows:



ARTICLE I




Definitions, Interpretation and Accounting Terms




          Section 1.1 Defined Terms



          As used in this Agreement, the following terms have the following meanings (such meanings to
be equally applicable to both the singular and plural forms of the terms defined):



          “Account” has the meaning given to such term in the UCC.



          “Acquisition” means the purchase by the Purchaser of (i) all of the outstanding capital stock
of Acquired Co. and (ii) the notes issued by Macquarie ProLogis U.S. Trust, Inc. and Macquarie
ProLogis Mexico Trust, Inc. to Macquarie ProLogis Income Trust, pursuant to the terms of the
Acquisition Agreement.



          “Acquisition Agreement” means the Implementation Agreement, dated April 17, 2007, between the
Term Borrower, Prologis and Macquarie ProLogis Management Limited, as responsible entity of
Macquarie Prologis Trust.



          “Acquired Co.” means Macquarie ProLogis Trust (ASX: MPR), an Australian listed property trust.



          “Administrative Agent” has the meaning specified in the preamble to this Agreement.



          “Affected Lender” has the meaning specified in Section 2.17.



          “Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling or that is controlled by or is under common control with such Person. For the purposes
of this definition, “control” means the possession of the power to direct or cause the direction of
the



 









 







management and policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.



          “Agent Affiliate” has the meaning specified in Section 10.3.



          “Agreement” means this Credit Agreement.



          “Applicable Lending Office” means, with respect to each Lender, its Domestic Lending Office in
the case of a Base Rate Loan, and its Eurodollar Lending Office in the case of a Eurodollar Rate
Loan.



          “Applicable Margin” means, as of any date of determination, a per annum rate equal
to the rate set forth below opposite the applicable type of Loan set forth below:



	 	 	 	 	 	 	 	 	 	 	 
	Base Rate Loans	 	Eurodollar Rate Loans
	 	 	 	 	 	 	 	 	Term Loans	 	 
	Term Loans	 	Term Loans	 	 	 	Term Loans	 	on or after	 	 
	prior to first	 	on or after	 	 	 	prior to first	 	first	 	 
	Extension	 	first Extension	 	Convertible	 	Extension	 	Extension	 	Convertible
	Date	 	Date	 	Loans	 	Date	 	Date	 	Loans
	0%
	 	0.50%
	 	0.50%
	 	0.75%
	 	1.50%
	 	1.50%






          “Approved Electronic Communications” means each notice, demand, communication,
information, document and other material that any Loan Party is obligated to, or otherwise chooses
to, provide to the Administrative Agent pursuant to any Loan Document or the transactions
contemplated therein, including (a) any joinder to the Pledge Agreement and any other written
Contractual Obligation delivered or required to be delivered in respect of any Loan Document or the
transactions contemplated therein and (b) any Financial Statement, financial and other report,
notice, request, certificate and other information material.



          “Approved Electronic Platform” has the meaning specified in Section 10.3.



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



          “Arranger” means Citigroup Global Markets Inc., in its capacity as sole arranger and sole book
manager.



          “Asset Sale” has the meaning specified in Section 8.4.



          “Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an
Eligible Assignee, and accepted by the Administrative Agent, in substantially the form of Exhibit
A.



          “Base Rate” means, for any period, a fluctuating interest rate per annum as shall be in effect
from time to time, which rate per annum shall be equal at all times to the higher of the following:




(a) the rate of interest announced publicly by Citibank in New York, New York, from time to
time, as Citibank’s base rate; and




(b) 0.5% per annum plus the Federal Funds Rate.



2









 





          “Base Rate Loan” means any Loan during any period in which it bears interest based on the Base
Rate.



          “Borrowers” has the meaning specified in the preamble to this Agreement.



          “Borrowing” means a Term Loan Borrowing or a Convertible Loan Borrowing.



          “Business Day” means a day of the year on which banks are not required or authorized to close
in New York City and, if the applicable Business Day relates to notices, determinations, fundings
and payments in connection with the Eurodollar Rate or any Eurodollar Rate Loans, a day on which
dealings in Dollar deposits are also carried on in the London interbank market.



          “Capital Expenditures” means, for any Person for any period, the aggregate of amounts that
would be reflected as additions to property, plant or equipment on a Consolidated balance sheet of
such Person and its Subsidiaries, excluding interest, taxes and insurance costs capitalized during
construction.



          “Capital Lease” means, with respect to any Person, any lease of, or other arrangement
conveying the right to use, property by such Person as lessee that would be accounted for as a
capital lease on a balance sheet of such Person prepared in conformity with GAAP.



          “Capital Lease Obligations” means, with respect to any Person, the capitalized amount of all
Consolidated obligations of such Person or any of its Subsidiaries under Capital Leases.



          “Cash Equivalents” means (a) direct obligations of the United States of America or any agency
thereof, or obligations fully guaranteed by the United States of America or any agency thereof,
provided that such obligations mature within one (1) year of the date of acquisition thereof, (b)
commercial paper rated “A-1” (or higher) according to S&P, or “AP-1” (or higher) according to
Moody’s and maturing not more than one hundred and eighty (180) days from the date of acquisition
thereof, (c) time deposits with, and certificates of deposit and bankers’ acceptances issued by any
Lender or any other United States bank having capital surplus and undivided profits aggregating at
least $1,000,000,000, and (d) mutual funds whose investments are substantially limited to the
foregoing.



          “Cash Interest Expense” means, with respect to any Person for any period, the Interest Expense
of such Person for such period less the Non-Cash Interest Expense of such Person for such period.



          “Change of Control” means the occurrence of any event, transaction or occurrence (other than
upon a Conversion Event) as a result of which (a) prior to the earlier of the Conversion Date and
the end of the Conversion Period, ProLogis shall cease to directly or indirectly own and control
all of the economic and voting rights associated with all of the outstanding Stock of all classes
of each Borrower, (b) thereafter, ProLogis shall cease to control, directly or indirectly, the
general partner (or equivalent entity) of the Convertible Borrower, (c) ProLogis shall cease to
control, directly or indirectly, the general partner (or equivalent entity(ies)) of PM Fund, (d)
the Convertible Borrower shall cease to own and control at least 95% of the economic and voting
rights associated with all of the outstanding Stock of the Term Borrower, or (e) the Term Borrower
shall cease to own and control at least 95% of the economic and voting rights associated with the
outstanding Stock of the Purchaser. For the purposes of this definition, “control” means the
possession of the power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or otherwise.



3









 





          “Citibank” means Citibank, N.A., a national banking association.



          “Citicorp” has the meaning specified in the preamble to this Agreement.



          “Closing Date” means the first date on which any Loan is made.



          “Code” means the U.S. Internal Revenue Code of 1986, as amended.



          “Collateral” means (a) all of the Convertible Borrower’s interests in the Stock of the Term
Borrower, (b) all of the Term Borrower’s interests in the Stock of the Purchaser, (c) each
Grantor’s interest in the Stock of PM Fund.



          “Collateral Documents” means the Pledge Agreement and any other document executed and
delivered by a Loan Party granting a Lien on any of its property to secure payment of the Secured
Obligations.



          “Commitment” means, with respect to any Lender, such Lender’s (i) Term Commitment, if any, and
(ii) Convertible Loan Commitment, if any, and “Commitments” means the aggregate Term Commitments
and Convertible Loan Commitments.



          “Compliance Certificate” has the meaning specified in Section 6.1(d).



          “Consolidated” means, with respect to any Person, the consolidation of accounts of such Person
and its Subsidiaries in accordance with GAAP.



          “Consolidated Net Income” means, for any Person, for any period, the Consolidated net income
(or loss) of such Person and its Subsidiaries for such period; provided, however, that (a) the net
income of any other Person in which such Person or one of its Subsidiaries has a joint interest
with a third party (which interest does not cause the net income of such other Person to be
Consolidated into the net income of such Person) shall equal such Person’s pro rata share of such
net income (based on such Person’s ownership percentage in such other Person) and (b) extraordinary
gains and losses and any one-time increase or decrease to net income for such period that is
required to be recorded because of the adoption of new accounting policies, practices or standards
required by GAAP shall be excluded.



          “Constituent Documents” means, with respect to any Person, (a) the articles of incorporation,
certificate of incorporation, constitution or certificate of formation (or the equivalent
organizational documents) of such Person and (b) the by-laws or operating agreement (or the
equivalent governing documents) of such Person.



          “Contaminant” means any material, substance or waste that is classified, regulated or
otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant or a
pollutant or by other words of similar meaning or regulatory effect, including any petroleum or
petroleum-derived substance or waste, asbestos and polychlorinated biphenyls.



          “Contractual Obligation” of any Person means any obligation, agreement, undertaking or similar
provision of any Security issued by such Person or of any agreement, undertaking, contract, lease,
indenture, mortgage, deed of trust or other instrument (excluding a Loan Document) to which such
Person is a party or by which it or any of its property is bound or to which any of its property is
subject.



          “Conversion Date” means the date (if any) on which the Conversion Event occurs.



4









 





          “Conversion Event” means the conversion of the Convertible Note into Partnership Interests
pursuant to Schedule 2.6.



          “Conversion Period” has the meaning specified in Schedule 2.6.



          “Convertible Borrower” has the meaning specified in the preamble to this Agreement.



          “Convertible Lender” means, prior to the end of the Conversion Period, Citibank; and
thereafter, each Lender (if any) holding a Convertible Loan.



          “Convertible Loan” has the meaning specified in Section 2.1(b).



          “Convertible Loan Borrowing” means Convertible Loans made on the same day by the Convertible
Lenders ratably according to their respective Convertible Loan Commitments.



          “Convertible Loan Commitment” means, with respect to each Convertible Lender, the commitment
of such Lender to make a Convertible Loan to the Convertible Borrower on the Effective Date in the
principal amount outstanding not to exceed the amount set forth opposite such Lender’s name on
Schedule I under the caption “Convertible Loan Commitment”, as such amount may be reduced pursuant
to this Agreement.



          “Convertible Loan Facility” means the Convertible Loan Commitments and the provisions herein
related to the Convertible Loans.



          “Convertible Loan Maturity Date” means July 11, 2012.



          “Convertible Loan Note” means a promissory note of the Convertible Borrower payable to the
order of any Convertible Lender evidencing the Convertible Loan owing to such Lender.



          “Customary Permitted Liens” means, with respect to any Person, any of the following Liens:




(a) Liens with respect to the payment of taxes, assessments or governmental charges in each
case that are not yet due or that are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other appropriate provisions are
being maintained to the extent required by GAAP or in a manner reasonably acceptable to the
Administrative Agent;




(b) banker’s Liens, Liens of landlords arising by statute and liens of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and other similar Liens, in each case (i)
imposed by law or arising in the ordinary course of business, (ii) for amounts not yet due
or that are being contested in good faith by appropriate proceedings and (iii) with respect
to which adequate reserves or other appropriate provisions are being maintained to the
extent required by GAAP or in a manner reasonably acceptable to the Administrative Agent;




(c) deposits made in the ordinary course of business in connection with workers’
compensation (or to participate in any fund in connection with worker’s compensation
insurance), unemployment insurance or other types of social security benefits or to secure
the performance of bids, tenders, sales, contracts (other than for the repayment of borrowed
money) and surety, appeal, customs or performance bonds;



5









 






(d) encumbrances arising by reason of zoning restrictions, easements, licenses,
reservations, covenants, rights-of-way, utility easements, building restrictions and other
similar encumbrances on the use of real property not materially detracting from the value of
such real property or not materially interfering with the ordinary conduct of the business
conducted and proposed to be conducted at such real property;




(e) encumbrances arising under leases or subleases of real property that do not, in the
aggregate, materially detract from the value of such real property or interfere with the
ordinary conduct of the business conducted and proposed to be conducted at such real
property; and




(f) financing statements with respect to a lessor’s rights in and to personal property
leased to such Person in the ordinary course of such Person’s business other than through a
Capital Lease.



          “Debt Issuance” means the incurrence of Indebtedness of the type specified in clause (a) or
(b) of the definition of “Indebtedness” by any Group Member.



          “Default” means any event that, with the passing of time or the giving of notice or both,
would become an Event of Default.



          “Disqualified Stock” means with respect to any Person, any Stock that, by its terms (or by the
terms of any Security into which it is convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise, or is exchangeable for Indebtedness of such Person, or is redeemable at the option of
the holder thereof, in whole or in part, on or prior to the scheduled Term Maturity Date.



          “Dollars” and the sign “$” each mean the lawful money of the United States of America.



          “Domestic Lending Office” means, with respect to any Lender, the office of such Lender
specified as its “Domestic Lending Office” opposite its name on Schedule II or on the Assignment
and Acceptance by which it became a Lender or such other office of such Lender as such Lender may
from time to time specify to the Borrowers (or after the Conversion Date, the Term Borrower) and
the Administrative Agent.



          “Domestic Person” means any “United States person” under and as defined in Section 770l(a)(30)
of the Code.



          “Domestic Subsidiary” means any Subsidiary of either Borrower organized under the laws of any
state of the United States of America or the District of Columbia.



          “EBITDA” means, with respect to any Person for any period, (a) Consolidated Net Income of such
Person for such period plus (b) the sum of, in each case to the extent included in the calculation
of such Consolidated Net Income but without duplication, (i) any provision for income taxes, (ii)
Interest Expense, (iii) loss from extraordinary items, (iv) depreciation, depletion and
amortization expenses, (v) any aggregate net loss from the sale, exchange or other disposition of
capital assets by such Person, (vi) losses associated with mark-to-market adjustments to foreign
exchange Hedging Contracts; (vii) losses from early extinguishment of Indebtedness and (viii) all
other non-cash charges and non-cash losses for such period, including the amount of any
compensation deduction as the result of any grant of Stock or Stock Equivalents to employees,
officers, directors or consultants minus (c) the sum of, in each case to the extent included in the
calculation of such Consolidated Net Income but without duplication, (i) any credit for income tax,
(ii) interest income, (iii) gains from extraordinary items, (iv) any aggregate net gain from the
sale, exchange or other disposition of capital assets by such Person, (v) gains associated



6









 







with mark-to-market adjustments to foreign exchange Hedging Contracts; (vi) mark-to-market
amortization of Indebtedness arising from the purchase accounting impact of corporate acquisitions,
(vii) gains from early extinguishment of Indebtedness and (viii) any other non-cash gains or other
items which have been added in determining Consolidated Net Income, including any reversal of a
charge referred to in clause (b)(viii) above by reason of a decrease in the value of any Stock or
Stock Equivalent.



          “Eligible Assignee” means (a) a Lender or an Affiliate or Approved Fund of any Lender, (b) a
commercial bank having total assets in excess of $5,000,000,000, (c) a finance company, insurance
company or any other financial institution or Fund, in each case reasonably acceptable to the
Administrative Agent and regularly engaged in making, purchasing or investing in loans and having a
net worth, determined in accordance with GAAP, in excess of $250,000,000 (or, to the extent net
worth is less than such amount, a finance company, insurance company, other financial institution
or Fund, reasonably acceptable to the Administrative Agent and the Term Borrower or the Convertible
Borrower, as applicable, or (d) a savings and loan association or savings bank organized under the
laws of the United States or any State thereof having a net worth, determined in accordance with
GAAP, in excess of $250,000,000.



          “Entitlement Holder” has the meaning given to such term in the UCC.



          “Entitlement Order” has the meaning given to such term in the UCC.



          “Environmental Laws” means all applicable Requirements of Law now or hereafter in effect and
as amended or supplemented from time to time, relating to pollution or the regulation and
protection of human or animal health, safety, the environment or natural resources, including the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. § 9601 et seq.); the Hazardous Material Transportation Act, as amended (49 U.S.C. § 5101 et
seq.); the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. § 136 et
seq.); the Resource Conservation and Recovery Act, as amended (42 U.S.C. § 6901 et seq.); the Toxic
Substance Control Act, as amended (15 U.S.C. § 2601 et seq.); the Clean Air Act, as amended (42
U.S.C. § 7401 et seq.); the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1251 et
seq.); the Occupational Safety and Health Act, as amended (29 U.S.C. § 651 et seq.); the Safe
Drinking Water Act, as amended (42 U.S.C. § 300f et seq.); and each of their state and local
counterparts or equivalents and any transfer of ownership notification or approval statute.



          “Environmental Liabilities and Costs” means, with respect to any Person, all liabilities,
obligations, responsibilities, Remedial Actions, losses, damages, punitive damages, consequential
damages, treble damages, costs and expenses (including all fees, disbursements and expenses of
counsel, experts and consultants and costs of investigation and feasibility studies), fines,
penalties, sanctions and interest incurred as a result of any claim or demand by any other Person,
whether based in contract, tort, implied or express warranty, strict liability, criminal or civil
statute and whether arising under any Environmental Law, Permit, order or agreement with any
Governmental Authority or other Person, in each case relating to any environmental, health or
safety condition or to any Release or threatened Release and resulting from the past, present or
future operations of, or ownership of property by, such Person or any of its Subsidiaries.



          “Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental
Liabilities and Costs.



          “Equipment” has the meaning given to such term in the UCC.



7









 





          “ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended.



          “ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control or treated as a single employer with any Group Member within the meaning of Section 414(b),
(c), (m) or (o) of the Code.



          “ERISA Event” means (a) a reportable event described in Section 4043(b) or 4043(c)(1), (2),
(3), (5), (6), (8) or (9) of ERISA with respect to a Title IV Plan or a Multiemployer Plan, (b) the
withdrawal of any Group Member or any ERISA Affiliate from a Title IV Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA, (c) the complete or partial withdrawal of any Group Member or any ERISA
Affiliate from any Multiemployer Plan, (d) notice of reorganization or insolvency of a
Multiemployer Plan, (e) the filing of a notice of intent to terminate a Title IV Plan or the
treatment of a plan amendment as a termination under Section 4041 of ERISA, (f) the institution of
proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make
any required contribution to a Title IV Plan or Multiemployer Plan, (h) the imposition of a lien
under Section 412 of the Code or Section 302 of ERISA on any Group Member or any ERISA Affiliate or
(i) any other event or condition that might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Title IV Plan or Multiemployer Plan or the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA.



          “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the
Federal Reserve Board.



          “Eurodollar Lending Office” means, with respect to any Lender, the office of such Lender
specified as its “Eurodollar Lending Office” opposite its name on Schedule II or on the Assignment
and Acceptance by which it became a Lender (or, if no such office is specified, its Domestic
Lending Office) or such other office of such Lender as such Lender may from time to time specify to
the Borrowers (or after the Conversion Date, the Term Borrower) and the Administrative Agent.



          “Eurodollar Rate” means, with respect to any Interest Period for any Eurodollar Rate Loan, the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or another commercially available source providing quotations of BBA LIBOR as designated
by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.
If such rate is not available at such time for any reason, then the “Eurodollar Rate” for such
Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate
at which deposits in Dollars for delivery on the first day of such Interest Period in the
approximate amount of the Eurodollar Rate Loan being made, continued or converted by the
Administrative Agent and with a term equivalent to such Interest Period would be offered by the
Administrative Agent’s London Branch to major banks in the London or other offshore interbank
market for such currency at their request at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.



          “Eurodollar Rate Loan” means any Loan that, for an Interest Period, bears interest based on
the Eurodollar Rate.



          “Event of Default” has the meaning specified in Section 9.1.



8









 





          “Extension Date” means any date a Term Loan Extension may be made pursuant to Section 2.6(a).



          “Facilities” means (a) the Term Loan Facility and (b) the Convertible Loan Facility.



          “Fair Market Value” means (a) with respect to any asset or group of assets (other than a
marketable Security) at any date, the value of the consideration obtainable in a sale of such asset
at such date assuming a sale by a willing seller to a willing purchaser dealing at arm’s length or,
if such asset shall have been the subject of a relatively contemporaneous appraisal by an
independent third party appraiser, the basic assumptions underlying which have not materially
changed since its date, the value set forth in such appraisal and (b) with respect to any
marketable Security at any date, the closing sale price of such Security on the Business Day next
preceding such date, as appearing in any published list of any national securities exchange or the
NASDAQ Stock Market or, if there is no such closing sale price of such Security, the final price
for the purchase of such Security at face value quoted on such Business Day by a financial
institution of recognized standing regularly dealing in Securities of such type and selected by the
Administrative Agent.



          “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for
each day during such period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing selected by it.



          “Federal Reserve Board” means the Board of Governors of the United States Federal Reserve
System, or any successor thereto.



          “Fee Letter” shall mean the letter dated April 13, 2007, addressed to ProLogis from Citicorp
and the Arranger and accepted by ProLogis on April 13, 2007, with respect to certain fees to be
paid from time to time to Citicorp and the Arranger.



          “Financial Asset” has the meaning given to such term in the UCC.



          “Financial Covenant Debt” of any Person means Indebtedness of the type specified in clauses
(a), (b), (d), (e), (f), (g)(excluding nonrecourse Indebtedness) and (h) of the definition of
“Indebtedness” and non-contingent obligations of the type specified in clause (c) of such
definition.



          “Financial Statements” means the financial statements of Holdings and its Subsidiaries
delivered in accordance with Section 6.1.



          “Fiscal Quarter” means each of the three month periods ending on March 31, June 30, September
30 and December 31.



          “Fiscal Year” means the twelve month period ending on December 31.



          “Fixed Charge Coverage Ratio” means, with respect to Holdings as of the last day of any Fiscal
Quarter, the ratio of (a)(i) EBITDA minus (ii) Capital Expenditures to (b) Fixed Charges,
in each case for the four Fiscal Quarters ending on the date of determination.



9









 





          “Fixed Charges” means with respect to Holdings for any period the sum determined on a
Consolidated basis of (a) Interest Expense for such period, (b) the aggregate amount of regularly
scheduled payments of principal (excluding any balloon payment) with respect to Consolidated
Financial Covenant Debt during such period and (c) all cash dividends payable by any Group Member
on preferred stock in respect of such period to Persons other than other Group Members.



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



          “GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of the accounting profession, that
are applicable to the circumstances as of the date of determination.



          “General Intangible” has the meaning given to such term in the UCC.



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



          “Grantor” means each Person party to the Pledge Agreement.



          “Group Member” means Holdings, the Borrowers and each of their respective Subsidiaries.



          “Growth Capex” means, for any period, the Capital Expenditures made by the Group Members that
have not been made for the purpose of tenant improvements, leasing commissions or replacing,
maintaining, repairing, or upgrading existing properties.



          “Guaranty Obligation” means, as applied to any Person, any direct or indirect liability,
contingent or otherwise, of such Person with respect to any Indebtedness of another Person, if the
purpose or intent of such Person in incurring the Guaranty Obligation is to provide assurance to
the obligee of such Indebtedness that such Indebtedness will be paid or discharged, that any
agreement relating thereto will be complied with, or that any holder of such Indebtedness will be
protected (in whole or in part) against loss in respect thereof, including (a) the direct or
indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of
business), with recourse by such Person of Indebtedness of another Person and (b) any liability of
such Person for Indebtedness of another Person through any agreement (contingent or otherwise) (i)
to purchase, repurchase or otherwise acquire such Indebtedness or any security therefor or to
provide funds for the payment or discharge of such Indebtedness (whether in the form of a loan,
advance, stock purchase, capital contribution or otherwise), (ii) to maintain the solvency or any
balance sheet item, level of income or financial condition of another Person, (iii) to make
take-or-pay or similar payments, if required, regardless of non-performance by any other party or
parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss or (v) to supply funds to,
or in any other manner invest in, such other Person (including to pay for property or services
irrespective of whether such property is received or such services are rendered), if in the case of
any agreement described under clause (b)(i), (ii),



10









 




(iii), (iv) or (v) above the primary purpose or intent thereof is to provide assurance that
Indebtedness of another Person will be paid or discharged, that any agreement relating thereto will
be complied with or that any holder of such Indebtedness will be protected (in whole or in part)
against loss in respect thereof. “Guaranty Obligation” shall exclude (i) endorsements in the
ordinary course of business of negotiable instruments or documents for deposit or collection and
(ii) indemnification obligations and purchase price adjustments pursuant to acquisition agreements
entered into in the ordinary course of business. The amount of any Guaranty Obligation shall be
equal to the amount of the Indebtedness so guaranteed or otherwise supported.




          “Hedging Contracts” means all Interest Rate Contracts, foreign exchange hedging contracts,
currency swap or option agreements, forward contracts, commodity swap, purchase or option
agreements, other commodity price hedging arrangements and all other similar agreements or
arrangements designed to alter the risks of any Person arising from fluctuations in interest rates,
currency values or commodity prices.



          “Holdings Accountants” means KPMG LLP or other independent nationally-recognized public
accountants selected by ProLogis.



          “Incremental Indebtedness” has the meaning specified in Section 8.1(j).



          “Indebtedness” of any Person means without duplication (a) all indebtedness of such Person for
borrowed money, (b) all obligations of such Person evidenced by notes, bonds, debentures or similar
instruments, (c) all reimbursement and other obligations with respect to letters of credit and
bankers’ acceptances, whether or not matured, (d) all indebtedness for the deferred purchase price
of property or services, other than trade payables incurred in the ordinary course of business that
are not overdue and deferred tax liabilities, (e) all indebtedness of such Person created or
arising under any conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such property), (f) all
Capital Lease Obligations of such Person and the present value of future rental payments under all
synthetic leases, (g) all Guaranty Obligations of such Person, (h) all obligations of such Person
to purchase, redeem, retire, defease or otherwise acquire for value any Stock or Stock Equivalents
of such Person, valued, in the case of redeemable preferred stock, at the greater of its voluntary
liquidation preference and its involuntary liquidation preference plus accrued and unpaid
dividends, (i) the Swap Termination Value under Hedging Contracts to which such Person is a party
and (j) all Indebtedness of the type referred to above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in
property (including Accounts and General Intangibles) owned by such Person, even though such Person
has not assumed or become liable for the payment of such Indebtedness. The amount of any
Indebtedness shall be determined without giving effect to any mark-to-market increase or decrease
resulting from the purchase accounting impact of corporate or portfolio acquisitions or any
mark-to-market remeasurement of the amount of any Indebtedness denominated in a currency other than
Dollars. Indebtedness shall not include obligations under any assessment, performance, bid or
surety bond or any similar bonding obligation.



          “Indemnified Matter” has the meaning specified in Section 11.4.



          “Indemnitee” has the meaning specified in Section 11.4.



          “Interest Expense” means, for any Person for any period, Consolidated total interest expense
of such Person and its Subsidiaries for such period.



11









 





          “Interest Period” means, in the case of any Eurodollar Rate Loan, (a) initially, the period
commencing on the date such Eurodollar Rate Loan is made or on the date of conversion of a Base
Rate Loan to such Eurodollar Rate Loan and ending seven or 14 days or one, two, three or six months
thereafter, as selected by the applicable Borrower in its Notice of Borrowing or Notice of
Conversion or Continuation given to the Administrative Agent pursuant to Section 2.2 or Section
2.11 and (b) thereafter, if such Loan is continued, in whole or in part, as a Eurodollar Rate Loan
pursuant to Section 2.11, a period commencing on the last day of the immediately preceding Interest
Period therefor and ending seven or 14 days or one, two, three or six months thereafter, as
selected by the applicable Borrower in its Notice of Conversion or Continuation given to the
Administrative Agent pursuant to Section 2.11; provided, however, that all of the foregoing
provisions relating to Interest Periods in respect of Eurodollar Rate Loans are subject to the
following:




          (i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day, unless the
result of such extension would be to extend such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately preceding Business
Day;




          (ii) other than with respect to any seven- or 14-day Interest Period, any Interest
Period that begins on the last 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 Business Day of a calendar month;




          (iii) the Convertible Borrower may not select any Interest Period for a Convertible
Loan that ends after the Convertible Loan Maturity Date;




          (iv) the Term Borrower may not select any Interest Period for a Term Loan that ends
after the then scheduled Term Maturity Date;




          (v) neither Borrower may select any Interest Period in respect of Loans having an
aggregate principal amount of less than $5,000,000; and




          (vi) there shall be outstanding at any one time no more than six Borrowings of
Eurodollar Loans in the aggregate.



          “Interest Rate Contracts” means all interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and interest rate insurance and other interest rate
derivative products used to hedge interest rates.



          “Inventory” has the meaning given to such term in the UCC.



          “Investment” means, with respect to any Person, (a) any purchase or other acquisition by such
Person of (i) any Security issued by, (ii) a beneficial interest in any Security issued by, or
(iii) any other equity ownership interest in, any other Person, (b) any purchase by such Person of
all or a significant part of the assets of a business conducted by any other Person, or all or
substantially all of the assets constituting the business of a division, branch or other unit
operation of any other Person, (c) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts receivable and similar
items made or incurred in the ordinary course of business as presently conducted) or capital
contribution by such Person to any other Person, including all Indebtedness of any other Person to
such Person arising from a sale of property by such Person other than in the ordinary course of its
business, and (d) any Guaranty Obligation incurred by such Person in respect of Indebtedness of any
other Person.



12









 





          “IRS” means the Internal Revenue Service of the United States or any successor thereto.



          “Land” of any Person means all of those plots, pieces or parcels of land now owned, leased or
hereafter acquired or leased or purported to be owned, leased or hereafter acquired or leased
(including, in respect of the Loan Parties, as reflected in the most recent Financial Statements)
by such Person.



          “Lender” means each financial institution or other entity that (a) is listed on the signature
pages hereof as a “Lender” or (b) from time to time becomes a party hereto by execution of an
Assignment and Acceptance.



          “Leverage Ratio” means, with respect to Holdings as of any date, the ratio of (a) Consolidated
Financial Covenant Debt outstanding as of such date to (b) Value for the last four Fiscal Quarter
period ending on or before such date.



          “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment as security,
charge, deposit arrangement, encumbrance, lien (statutory or other), security interest or
preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever intended to assure payment of any Indebtedness or the performance of any other
obligation, including any conditional sale or other title retention agreement, the interest of a
lessor under a Capital Lease and any financing lease having substantially the same economic effect
as any of the foregoing (but excluding the interest of a lessor under an operating lease).



          “Loan” means any loan made by any Lender pursuant to this Agreement.



          “Loan Documents” means, collectively, this Agreement, the Notes (if any), the Fee Letter and
the Collateral Documents.



          “Loan Party” means each Borrower and each Grantor.



          “Maintenance Capex” means, for any period, the Capital Expenditures made by the Group Members
that have been made for the purpose of tenant improvements, leasing commissions or replacing,
maintaining, repairing, or upgrading existing properties.



          “Material Adverse Change” means a material adverse change in any of (a) the condition
(financial or otherwise), business, performance, prospects, operations or properties of the
Borrowers or the Borrowers and their Subsidiaries taken as a whole, (b) the legality, validity or
enforceability of any Loan Document or any Related Document, (c) the perfection or priority of the
Liens granted pursuant to the Collateral Documents, (d) the ability of either Borrower to repay the
Obligations or of the other Loan Parties to perform their respective obligations under the Loan
Documents or (e) the rights and remedies of the Administrative Agent and the Lenders under the Loan
Documents.



          “Material Adverse Effect” means an effect that results in or causes, or could reasonably be
expected to result in or cause, a Material Adverse Change.



          “Moody’s” means Moody’s Investors Service, Inc.



          “Multiemployer Plan” means a multiemployer plan, as defined in Section 400l(a)(3) of ERISA, to
which any Group Member or any ERISA Affiliate has any obligation or liability, contingent or
otherwise.



13









 





          “Net Cash Proceeds” means proceeds received by any Group Member after the Closing Date in cash
or Cash Equivalents from any (a) Asset Sale, other than an Asset Sale permitted under Section 8.4
(a), (b), (d), (e), (f) and (g), net of (i) the reasonable cash costs of sale, assignment or other
disposition, (ii) taxes paid or reasonably estimated to be payable by any Group Member as a result
thereof, and (iv) any amount required to be paid or prepaid on Indebtedness (other than the
Obligations) secured by the assets subject to such Asset Sale, (b) Property Loss Event, net of
collection costs and amounts required to be paid or prepaid on Indebtedness or (c) Debt Issuance
permitted under Section 8.1(d), (e), (k) or (l), in each case to the extent required thereby and
net of brokers’ and advisors’ fees and other costs incurred in connection with such transaction but
excluding the first $10,000,000 of such proceeds received with respect to any Asset Sale during any
Fiscal Year.



          “Net Operating Income” means with respect to Holdings and its Subsidiaries for any period, the
difference (if positive) between (a) any rentals, proceeds, expense reimbursements, or income
received from real estate properties (including land) owned by Holdings, any Subsidiary or any
trust of which Holdings or any Subsidiary is the sole beneficiary (but excluding security or other
deposits, late fees, early termination or other penalties of a non-recurring nature), less (b) all
costs and expenses (including interest on assessment bonds) incurred as a result of, or in
connection with, the development, operation, or leasing of such properties, in each case determined
in accordance with GAAP (but excluding depreciation, amortization, Interest Expense and Capital
Expenditures).



          “Non-Cash Interest Expense” means, with respect to any Person for any period, the sum of the
following amounts to the extent included in Interest Expense for such period (a) the amount of debt
discount and debt issuance costs amortized, (b) charges relating to write-ups or write-downs in the
book or carrying value of existing Financial Covenant Debt, (c) interest payable by the issuance of
additional Indebtedness or by the addition to the principal of the related Indebtedness and (d)
other non-cash interest.



          “Non-Consenting Lender” has the meaning specified in Section 11.1(c).



          “Non-Funding Lender” has the meaning specified in Section 2.2(d).



          “Non-U.S. Lender” means each Lender (or the Administrative Agent) that is a Non-U.S. Person.



          “Non-U.S. Person” means any Person that is not a Domestic Person.



          “Note” means any Term Loan Note or any Convertible Loan Note.



          “Notice of Borrowing” has the meaning specified in Section 2.2(a).



          “Notice of Conversion or Continuation” has the meaning specified in Section 2.11.



          “Obligations” means, with respect to either Borrower, the Loans and all other amounts,
obligations, covenants and duties owing by such Borrower to the Administrative Agent, any Lender,
any Affiliate of any of them or any Indemnitee, of every type and description (whether by reason of
an extension of credit, opening or amendment of a letter of credit or payment of any draft drawn or
other payment thereunder, loan, guaranty, indemnification, foreign exchange or currency swap
transaction, interest rate hedging transaction or otherwise), present or future, arising under this
Agreement, any other Loan Document, whether direct or indirect (including those acquired by
assignment) or absolute or contingent, due or to become due, now existing or hereafter arising and
however acquired and whether or not evidenced by any note, guaranty or other instrument or for the
payment of money, including all letter



14









 







of credit and other fees, interest, charges, expenses, attorneys’ fees and disbursements and
other sums chargeable to such Borrower under this Agreement or any other Loan Document.



          “Patriot Act” means the USA Patriot Act of 2001 (31 U.S.C. 5318 et seq.).



          “Partnership Interests” means limited partnership interests in the Convertible Borrower.



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



          “Permit” means any permit, approval, authorization, license, variance or permission required
from a Governmental Authority under an applicable Requirement of Law.



          “Person” means an individual, partnership, corporation (including a business trust), joint
stock company, estate, trust, limited liability company, unincorporated association, joint venture
or other entity or a Governmental Authority.



          “Pledge Agreement” means an agreement, in substantially the form of Exhibit F, executed by
each Borrower and each other Grantor party thereto.



          “Pledged Stock” has the meaning specified in the Pledge Agreement.



          “PM Fund” means ProLogis-Macquarie Fund, a Delaware general partnership.



          “Proceeds” has the meaning given to such term in the UCC.



          “Pro forma Basis” means, with respect to any determination for any period, that such
determination shall be made giving pro forma effect to each acquisition and disposition consummated
during such period, together with all transactions relating thereto consummated during such period
(including any incurrence, assumption, refinancing or repayment of Indebtedness), as if such
acquisition or disposition and related transactions had been consummated on the first day of such
period, in each case based on historical results accounted for in accordance with GAAP and, to the
extent applicable, reasonable assumptions that are specified in details in the relevant Compliance
Certificate, Financial Statement or other document provided to the Administrative Agent or any
Lender in connection herewith in accordance with Regulation S-X of the Securities Act of 1933.



          “Projections” means the financial projections delivered by ProLogis to Citigroup Global
Markets Inc. on April 13, 2007 (and titled “Commitment Letter Financial Projections”).



          “ProLogis” means ProLogis, a Maryland real estate investment trust.



          “Property Loss Event” means (a) any loss of or damage to property of any Group Member that
results in the receipt by such Person of proceeds of insurance in excess of $25,000,000
(individually or in the aggregate) or (b) any taking of property of any Group Member that results
in the receipt by such Person of a compensation payment in respect thereof in excess of $25,000,000
(individually or in the aggregate).



          “Purchaser” means Acquiring Corp., a Delaware corporation, owned 100% by the Term Borrower and
formed to make the Acquisition.



          “Purchasing Lender” has the meaning specified in Section 11.7.



15









 





          “Ratable Portion” or “ratably” means, with respect to any Lender, (a) with respect to the Term
Facility, the percentage obtained by dividing (i) the Term Commitment of such Lender by (ii) the
aggregate Term Commitments of all Term Lenders (or, at any time after the Closing Date, the
percentage obtained by dividing the aggregate outstanding principal balance of such Lender’s Term
Loan by the aggregate outstanding principal balance of all Term Loans), (b) with respect to the
Convertible Loan Facility, the percentage obtained by dividing (i) the Convertible Loan Commitment
of such Lender by (ii) the aggregate Convertible Loan Commitments of all Convertible Lenders (or,
at any time after the Closing Date, the percentage obtained by dividing the aggregate outstanding
principal balance of such Lender’s Convertible Loan by the aggregate outstanding principal balance
of all Convertible Loans), and (c) with respect to the Facilities as a whole, the percentage
obtained by dividing (i) the Commitments of such Lender by (ii) the aggregate Commitments of all
Lenders (or, at any time after the Closing Date, the percentage obtained by dividing the aggregate
outstanding principal balance of the Loans owing to such Lender by the aggregate outstanding
principal balance of all Loans owing to all Lenders).



          “Real Property” of any Person means the Land of such Person, together with the right, title
and interest of such Person, if any, in and to the streets, the Land lying in the bed of any
streets, roads or avenues, opened or proposed, in front of, the air space and development rights
pertaining to the Land and the right to use such air space and development rights, all rights of
way, privileges, liberties, tenements, hereditaments and appurtenances belonging or in any way
appertaining thereto, all fixtures, all easements now or hereafter benefiting the Land and all
royalties and rights appertaining to the use and enjoyment of the Land, including all alley, vault,
drainage, mineral, water, oil and gas rights, together with all of the buildings and other
improvements now or hereafter erected on the Land and any fixtures appurtenant thereto.



          “Reference Bank” means the Lender (or any Affiliate thereof) that is then acting as the
Administrative Agent or an Affiliate of the Administrative Agent.



          “Register” has the meaning specified in Section 2.7(b).



          “Reinvestment Deferred Amount” means, with respect to any Net Cash Proceeds of any
Reinvestment Event, the portion of such Net Cash Proceeds subject to a Reinvestment Notice.



          “Reinvestment Event” means any Asset Sale or Property Loss Event in respect of which either
Borrower (or after the Conversion Date, the Term Borrower) has delivered a Reinvestment Notice.



          “Reinvestment Notice” means a written notice executed by a Responsible Officer of the
applicable Borrower stating that no Default or Event of Default has occurred and is continuing and
that such Borrower (directly or indirectly through one of its Subsidiaries) intends and expects to
use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Property Loss Event to
acquire replacement assets useful in its or one of its Subsidiaries’ businesses and/or, in the case
of a Property Loss Event, to effect repairs.



          “Reinvestment Prepayment Amount” means, with respect to any Net Cash Proceeds of any
Reinvestment Event, the Reinvestment Deferred Amount for such Net Cash Proceeds less any amount
expended or scheduled to be expended pursuant to a Contractual Obligation entered into prior to the
relevant Reinvestment Prepayment Date for such Net Cash Proceeds to acquire, to the extent
otherwise permitted hereunder, replacement assets useful in the business of any Group Member
and/or, in the case of a Property Loss Event, to effect repairs.



          “Reinvestment Prepayment Date” means, with respect to any Net Cash Proceeds of any
Reinvestment Event, the earlier of (a) the date occurring 365 days after such Reinvestment Event
(unless



16









 







such Net Cash Proceeds of any Reinvestment Event have been reinvested prior to such
365th day) and (b) the date that is five Business Days after the date on which the
applicable Borrower shall have notified the Administrative Agent of such Borrower’s determination
not to acquire replacement assets useful in the applicable Group Member’s business (and/or, in the
case of a Property Loss Event, not to effect repairs) with all or any portion of the relevant
Reinvestment Deferred Amount for such Net Cash Proceeds.



          “Related Documents” means the Acquisition Agreement and each other document and instrument
executed with respect thereto.



          “Release” means, with respect to any Person, any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration, in each case, of any
Contaminant into the indoor or outdoor environment or into or out of any property owned, leased or
operated by such Person, including the movement of Contaminants through or in the air, soil,
surface water, ground water or property.



          “Remedial Action” means all actions required to (a) clean up, remove, treat or in any other
way address any Contaminant in the indoor or outdoor environment, (b) prevent the Release or threat
of Release or minimize the further Release so that a Contaminant does not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform
pre-remedial studies and investigations and post-remedial monitoring and care.



          “Requirement of Law” means, with respect to any Person, the common law and all federal, state,
local and foreign laws, treaties, rules and regulations, orders, judgments, decrees and other
determinations of, concessions, grants, franchises, licenses and other Contractual Obligations
with, any Governmental Authority or arbitrator, applicable to or binding upon such Person or any of
its property or to which such Person or any of its property is subject.



          “Requisite Lenders” means, collectively, Lenders having more than fifty percent (50%) of the
sum of (a) the aggregate outstanding amount of the Term Loans then outstanding and (b) the
aggregate outstanding amount of the Convertible Loans then outstanding. A Non-Funding Lender shall
not be included in the calculation of “Requisite Lenders.”



          “Responsible Officer” means, with respect to any Person, any executive officer with the title
Vice President or above, managing members or general partners of such Person but, in any event,
with respect to financial matters, the chief financial officer, treasurer or controller of such
Person.



          “Restricted Payment” means (a) any dividend, distribution or any other payment whether direct
or indirect, on account of any Stock or Stock Equivalent of any Group Member now or hereafter
outstanding and (b) any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any Stock or Stock Equivalent of any Group Member now
or hereafter outstanding.



          “S&P” means Standard & Poor’s Rating Services.



          “Sarbanes-Oxley Act” means the United States Sarbanes-Oxley Act of 2002, as amended.



          “Secured Obligations” means, in the case of either Borrower, the Obligations of such Borrower
and, in the case of any Loan Party, the obligations of such Loan Party under the Loan Documents to
which it is a party.



17









 





          “Secured Parties” means the Lenders, the Administrative Agent and any other holder of any
Secured Obligation.



          “Security” means any Stock, Stock Equivalent, voting trust certificate, bond, debenture, note
or other evidence of Indebtedness, whether secured, unsecured, convertible or subordinated, or any
certificate of interest, share or participation in, any temporary or interim certificate for the
purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing, but shall not include any evidence of the Obligations.



          “Selling Lender” has the meaning specified in Section 11.7.



          “Solvent” means, with respect to any Person as of any date of determination, that, as of such
date, (a) the value of the assets of such Person (both at fair value and present fair saleable
value) is greater than the total amount of liabilities (including contingent and unliquidated
liabilities) of such Person, (b) such Person is able to pay all liabilities of such Person as such
liabilities mature and (c) such Person does not have unreasonably small capital with which to
conduct the business in which it is engaged as of such date and that it intends to conduct after
such date. In computing the amount of contingent or unliquidated liabilities at any time, such
liabilities shall be computed at the amount that, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or
matured liability.



          “Special Purpose Vehicle” means any special purpose funding vehicle identified as such in
writing by any Lender to the Administrative Agent.



          “Stock” means shares of capital stock (whether denominated as common stock or preferred
stock), beneficial, partnership or membership interests, participations or other equivalents
(regardless of how designated) of or in a corporation, partnership, limited liability company or
equivalent entity, whether voting or non-voting.



          “Stock Equivalents” means all securities convertible into or exchangeable for Stock and all
warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently
convertible, exchangeable or exercisable.



          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company or other business entity of which an aggregate of 50% or more of the outstanding
Voting Stock is, at the time, directly or indirectly, owned or controlled by such Person or one or
more Subsidiaries of such Person.



          “Substitute Institution” has the meaning specified in Section 2.17.



          “Substitution Notice” has the meaning specified in Section 2.17.



          “Swap Termination Value” means, in respect of one or more Hedging Contracts, after taking into
account the effect of any legally enforceable netting agreement relating to such Hedging Contracts,
(a) for any date on or after the date such Hedging Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior
to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for
such Hedging Contracts, as determined based upon one or more mid-market or other readily marketable
quotations provided by any recognized dealer in such Hedging Contracts (which may include a Lender
or any Affiliate of a Lender).



18









 





          “Tax Return” has the meaning specified in Section 4.8.



          “Taxes” has the meaning specified in Section 2.16(a).



          “Term Borrower” has the meaning specified in the preamble to this Agreement.



          “Term Borrowing” means Term Loans made on the same day by the Term Lenders ratably according
to their respective Term Commitments.



          “Term Commitment” means, with respect to each Term Lender, the commitment of such Lender to
make a Term Loan to the Term Borrower in the principal amount outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule I under the caption “Term Commitment”, as such
amount may be reduced pursuant to this Agreement.



          “Term Facility” means the Term Commitments and the provisions herein related to the Term
Loans.



          “Term Lender” means each Lender that has a Term Commitment or that holds a Term Loan.



          “Term Loan” has the meaning specified in Section 2.1(a).



          “Term Loan Extension” has the meaning specified in Section 2.6(a).



          “Term Loan Note” means a promissory note of the Term Borrower payable to the order of any Term
Lender evidencing the Term Loan owing to such Lender.



          “Term Maturity Date” means, the latest of (x) 12 months after the Closing Date, (y) 18 months
after the Closing Date; provided the initial Term Loan Extension is exercised and all conditions
set forth in Section 2.6(a) have been satisfied and (z) 24 months after the Closing Date; provided
each Term Loan Extension is exercised and all conditions set forth in Section 2.6(a) have been
satisfied.



          “Title IV Plan” means a pension plan, other than a Multiemployer Plan, covered by Title IV of
ERISA and to which any Group Member or any ERISA Affiliate has any obligation or liability,
contingent or otherwise.



          “UCC” has the meaning specified in the Pledge Agreement.



          “Unfunded Pension Liability” means, with respect to any Group Member at any time, the sum of
(a) the amount, if any, by which the present value of all accrued benefits under each Title IV Plan
(other than any Title IV Plan subject to Section 4063 of ERISA) exceeds the fair market value of
all assets of such Title IV Plan allocable to such benefits in accordance with Title IV of ERISA,
as determined as of the most recent valuation date for such Title IV Plan using the actuarial
assumptions in effect under such Title IV Plan, (b) the aggregate amount of withdrawal liability
that could be assessed under Section 4063 with respect to each Title IV Plan subject to such
section, separately calculated for each such Title IV Plan as of its most recent valuation date and
(c) for a period of five years following a transaction reasonably likely to be covered by Section
4069 of ERISA, the liabilities (whether or not accrued) that could be avoided by any Group Member
or any ERISA Affiliate as a result of such transaction.



19









 





          “U.S. Lender” means each Lender (or the Administrative Agent) that is a Domestic Person.



          “Valuation Rate” has the meaning set forth on Schedule III.



          “Value” means Net Operating Income of Holdings determined on a Consolidated basis divided by
the Valuation Rate.



          “Voting Stock” means Stock of any Person having ordinary power to vote in the election of
members of the board of directors, managers, trustees or other controlling Persons, of such Person
(irrespective of whether, at the time, Stock of any other class or classes of such entity shall
have or might have voting power by reason of the happening of any contingency).



          “Wholly-Owned Subsidiary” of any Person means any Subsidiary of such Person, all of the Stock
of which (other than director’s qualifying shares, as may be required by law) is owned by such
Person, either directly or indirectly through one or more Wholly-Owned Subsidiaries of such Person.



          “Withdrawal Liability” means, with respect to any Group Member at any time, the aggregate
liability incurred (whether or not assessed) with respect to all Multiemployer Plans pursuant to
Section 4201 of ERISA or for increases in contributions required to be made pursuant to Section
4243 of ERISA.



          Section 1.2 Computation of Time Periods



          In this Agreement, in the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including” and the words “to” and “until” each mean
“to but excluding” and the word “through” means “to and including.”



          Section 1.3 Accounting Terms and Principles



          (a) Except as set forth below, all accounting terms not specifically defined herein shall be
construed in conformity with GAAP and all accounting determinations required to be made pursuant
hereto (including for purpose of measuring compliance with Article V shall, unless expressly
otherwise provided herein, be made in conformity with GAAP.



          (b) If any change in the accounting principles used in the preparation of the most recent
Financial Statements referred to in Section 6.1 is hereafter required or permitted by the rules,
regulations, pronouncements and opinions of the Financial Accounting Standards Board or the
American Institute of Certified Public Accountants (or any successors thereto) and such change is
adopted by Holdings with the agreement of the Holdings Accountants and results in a change in any
of the calculations required by Article V or VIII that would not have resulted had such accounting
change not occurred, the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such change such that the criteria for evaluating compliance
with such covenants shall be the same after such change as if such change had not been made;
provided, however, that no change in GAAP that would affect a calculation that measures compliance
with any covenant contained in Article V or VIII shall be given effect until such provisions are
amended to reflect such changes in GAAP.



          (c) For purposes of making any of the financial covenant calculations required by this
Agreement, all components of such calculations for any fiscal period or portion thereof occurring
prior to the Closing Date shall be calculated by reference to the financial performance of Acquired
Co.



20









 





          (d) For purposes of making all financial calculations to determine compliance with Article V,
all components of such calculations shall be adjusted to include or exclude, as the case may be,
without duplication, such components of such calculations attributable to any business or assets
that have been acquired by any Group Member after the first day of the applicable period of
determination and prior to the end of such period, as determined in good faith by the Borrowers on
a Pro forma Basis.



          Section 1.4 Certain Terms



          (a) The terms “herein,” “hereof,” “hereto” and “hereunder” and similar terms refer to this
Agreement as a whole and not to any particular Article, Section, subsection or clause in, this
Agreement.



          (b) Unless otherwise expressly indicated herein, (i) references in this Agreement to an
Exhibit, Schedule, Article, Section, clause or sub-clause refer to the appropriate Exhibit or
Schedule to, or Article, Section, clause or sub-clause in this Agreement and (ii) the words “above”
and “below”, when following a reference to a clause or a sub-clause of any Loan Document, refer to
a clause or sub-clause within, respectively, the same Section or clause.



          (c) Each agreement or document defined in this Article I shall include all appendices,
exhibits and schedules thereto. Unless the prior written consent of the Requisite Lenders is
required hereunder for an amendment, restatement, supplement or other modification to any such
agreement and such consent is not obtained, references in this Agreement to such agreement shall be
to such agreement as so amended, restated, supplemented or modified.



          (d) The term “including” when used in any Loan Document means “including without limitation”
except when used in the computation of time periods.



          (e) The terms “Lender” and “Administrative Agent” include their respective successors.



          (f) Upon the appointment of any successor Administrative Agent pursuant to Section 10.7,
references to Citicorp in Section 10.4 and to Citibank in the definitions of Base Rate, Eurodollar
Rate and Reference Bank shall be deemed to refer to the financial institution then acting as the
Administrative Agent or one of its Affiliates if it so designates.



ARTICLE II




The Facilities




          Section 2.1 The Commitments



          (a) Term Loan Commitments. On the terms and subject to the conditions contained in this
Agreement, each Term Loan Lender severally agrees to make a loan (each a “Term Loan”) in Dollars to
the Term Loan Borrower on the Closing Date in an aggregate amount not to exceed such Lender’s Term
Commitment. Amounts of Term Loans may not be reborrowed.



          (b) Convertible Loan Commitments. On the terms and subject to the conditions contained in
this Agreement, each Convertible Lender severally agrees to make a loan (each a “Convertible Loan”)
in Dollars to the Convertible Borrower on the Closing Date, in an amount not to exceed such
Lender’s Convertible Loan Commitment. Amounts of Convertible Loans prepaid may not be reborrowed.



21









 





          Section 2.2 Borrowing Procedures



          (a) Each Borrowing shall be made on notice given by the applicable Borrower to the
Administrative Agent not later than 12:00 noon (New York time) on the date of any requested
Borrowing of Base Rate Loans or Eurodollar Rate Loans. Each such notice shall be in substantially
the form of Exhibit C (a “Notice of Borrowing”), specifying (A) the aggregate amount of such
proposed Borrowing, (B) whether any portion of the proposed Borrowing will be of Base Rate Loans or
Eurodollar Rate Loans and (C) for each Eurodollar Rate Loan, the initial Interest Period or Periods
thereof. Loans shall be made as Base Rate Loans unless, subject to Section 2.14, the Notice of
Borrowing specifies that all or a portion thereof shall be Eurodollar Rate Loans.



          (b) The Administrative Agent shall give to each Lender prompt notice of the Administrative
Agent’s receipt of a Notice of Borrowing and, if Eurodollar Rate Loans are properly requested in
such Notice of Borrowing, the applicable interest rate determined pursuant to Section 2.14(a).
Each Lender shall, before 11:00 am. (New York time) on the date of the proposed Borrowing, make
available to the Administrative Agent at its address referred to in Section 11.8, in immediately
available funds, such Lender’s Ratable Portion of such proposed Borrowing. Upon fulfillment (or
due waiver in accordance with Section 11.1) on the Closing Date, of the applicable conditions set
forth in Section 3.1, and after the Administrative Agent’s receipt of such funds, the
Administrative Agent shall make such funds available to the applicable Borrower.



          (c) Unless the Administrative Agent shall have received notice from a Lender prior to the date
of any proposed Borrowing that such Lender will not make available to the Administrative Agent such
Lender’s Ratable Portion of such Borrowing (or any portion thereof), the Administrative Agent may
assume that such Lender has made such Ratable Portion available to the Administrative Agent on the
date of such Borrowing in accordance with this Section 2.2 and the Administrative Agent may, in
reliance upon such assumption, make available to the applicable Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so made such Ratable
Portion available to the Administrative Agent, such Lender and the applicable Borrower severally
agree 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 applicable
Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of
such Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, the Federal Funds Rate for the first Business Day and thereafter
at the interest rate applicable at the time to the Loans comprising such Borrowing. If such Lender
shall repay to the Administrative Agent such corresponding amount, such corresponding amount so
repaid shall constitute such Lender’s Loan as part of such Borrowing for purposes of this
Agreement. If the applicable Borrower shall repay to the Administrative Agent such corresponding
amount, such payment shall not relieve such Lender of any obligation it may have hereunder to the
applicable Borrower.



          (d) The failure of any Lender to make on the date specified any Loan or any payment required
by it (such Lender being a “Non-Funding Lender”), shall not relieve any other Lender of its
obligations to make such Loan or payment on such date but no such other Lender shall be responsible
for the failure of any Non-Funding Lender to make a Loan or payment required under this Agreement.



22









 





          Section 2.3 [Intentionally Omitted]



          Section 2.4 [Intentionally Omitted]



          Section 2.5 [Intentionally Omitted]



          Section 2.6 Repayment of Loans



          (a) The Term Borrower promises to repay the entire unpaid principal amount of the Term Loans
on the Term Maturity Date. The Term Borrower may, upon notice sent to the Administrative Agent
within 30 days prior to each of (i) the six month anniversary of the Closing Date and (ii) the one
year anniversary of the Closing Date, by request to the Administrative Agent, elect to extend the
Term Maturity Date for an additional six month period. Any such extension (each, a “Term Loan
Extension”) shall take effect on the applicable anniversary of the Closing Date so long as (A) no
Default or Event of Default exists on the date of the notice to the Administrative Agent and (B) on
or prior to applicable anniversary date, the Borrower pays the Administrative Agent for the account
of each Term Lender a fee equal to 0.25% of the outstanding principal amount of such Lender’s Term
Loan.



          (b) The Convertible Borrower promises to repay the entire unpaid principal amount of the
Convertible Loans on the Convertible Loan Maturity Date; provided that if the Convertible
Loans are converted into Partnership Interests in accordance with Schedule 2.6, then the
Convertible Loans shall be deemed repaid on the Conversion Date.



          Section 2.7 Evidence of Debt



          (a) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing Indebtedness of the applicable Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.



          (b) (i) The Administrative Agent, acting as agent for each Borrower solely for this purpose
and for tax purposes, shall establish and maintain at its address referred to in Section 11.8 a
record of ownership (the “Register”) in which the Administrative Agent agrees to register by book
entry the Administrative Agent’s, each Lender’s interest in each Loan, and in the right to receive
any payments hereunder and any assignment of any such interest or rights. In addition, the
Administrative Agent, acting as agent for each Borrower solely for this purpose and for tax
purposes, shall establish and maintain accounts in the Register in accordance with its usual
practice in which it shall record (i) the names and addresses of the Lenders, (ii) the Commitments
of each Lender from time to time, (iii) the amount of each Loan made and, if a Eurodollar Rate
Loan, the Interest Period applicable thereto, (iv) the amount of any principal or interest due and
payable, and paid, by the applicable Borrower to, or for the account of, each Lender hereunder, (v)
the amount of any sum received by the Administrative Agent hereunder from the applicable Borrower,
whether such sum constitutes principal or interest (and the type of Loan to which it applies),
fees, expenses or other amounts due under the Loan Documents and each Lender’s share thereof, if
applicable.




          (ii) Notwithstanding anything to the contrary contained in this Agreement, the Loans
(including the Notes evidencing such Loans) are registered obligations and the right, title,
and interest of the Lenders and their assignees in and to such Loans, shall be transferable
only upon notation of such transfer in the Register. A Note shall only evidence the
Lender’s or a registered assignee’s right, title and interest in and to the related Loan.
This Section 2.7(b) and Section 11.2 shall be construed so that the Loans are at all times
maintained in “registered form”



23









 







within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any
related regulations (or any successor provisions of the Code or such regulations).



          (c) The entries made in the Register and in the accounts therein maintained pursuant to
clauses (a) and (b) above shall, to the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the obligations recorded therein; provided, however, that the
failure of any Lender or the Administrative Agent to maintain such accounts or any error therein
shall not in any manner affect the obligations of either Borrower to repay the applicable Loans in
accordance with their terms. Information contained in the Register with respect to any Lender
shall be available for inspection by the Borrowers (or after the Conversion Date, the Term
Borrower), the Administrative Agent, such Lender at any reasonable time and from time to time upon
reasonable prior notice.



          (d) Notwithstanding any other provision of the Agreement, in the event that any Lender
requests that either Borrower (or after the Conversion Date, the Term Borrower) execute and deliver
a promissory note or notes payable to such Lender in order to evidence the Indebtedness owing to
such Lender by the applicable Borrower hereunder, the applicable Borrower shall promptly execute
and deliver a Note or Notes to such Lender evidencing any Loans of such Lender, substantially in
the forms of Exhibit B-1 or Exhibit B-2, respectively.



          Section 2.8 Optional Prepayments



          The Borrowers (or after the Conversion Date, the Term Borrower) may, upon at least five
Business Days’ prior notice to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, prepay the outstanding principal amount of the Term Loans, in
the case of the Term Borrower and the Convertible Loans, in the case of the Convertible Borrower,
in whole or in part, together with accrued interest to the date of such prepayment on the principal
amount prepaid and any other amounts due at such time under any other Loan Document; provided,
however, that if any prepayment of any Eurodollar Rate Loan is made by either Borrower other than
on the last day of an Interest Period for such Loan, such Borrower shall also pay any amounts owing
pursuant to Section 2.14(e); and, provided, further, that each partial prepayment shall be in an
aggregate amount not less than $1,000,000 or integral multiples of $100,000 in excess thereof. Any
such partial prepayment shall be applied as the applicable Borrower shall direct or, in the absence
of such direction, first, pro rata to the outstanding principal amount of the Term Loans until the
Term Loans shall have been prepaid in full and second, to the outstanding principal amount of the
Convertible Loans until the Convertible Loans shall have been prepaid in full. Upon the giving of
such notice of prepayment, the principal amount of the Loans specified to be prepaid (and other
amounts due) shall become due and payable on the date specified for such prepayment.



          Section 2.9 Mandatory Prepayments



          (a) Not later than two Business Days following receipt by any Group Member of Net Cash
Proceeds arising from an Asset Sale, Property Loss Event or Debt Issuance (only with respect to
Incremental Indebtedness), the Borrowers (or after the Conversion Date, the Term Borrower) shall
prepay the Loans (or after the Conversion Date, the Term Loans) in an amount equal to 100% of such
Net Cash Proceeds (rounded down to the nearest $100,000). Any such mandatory prepayment shall be
applied in accordance with clause (c) below; provided, however, that, in the case of any Net Cash
Proceeds arising from a Reinvestment Event, the applicable Borrower shall prepay the Loans on the
Reinvestment Prepayment Date.



          (b) [Intentionally Omitted]



24









 





          (c) Subject to the provisions of Section 2.13(g), any prepayments made by the Borrowers
required to be applied in accordance with this clause (c) shall be applied as set forth in Section
2.8(a).



          Section 2.10 Interest



          (a) Rate of Interest. All Loans and the outstanding amount of all other Obligations shall
bear interest, in the case of Loans, on the unpaid principal amount thereof from the date such
Loans are made and, in the case of such other Obligations, from the date such other Obligations are
due and payable until, in all cases, paid in full, except as otherwise provided in clause (c)
below, as follows:




          (i) if a Base Rate Loan or such other Obligation, at a rate per annum equal to the sum
of (A) the Base Rate as in effect from time to time and (B) the Applicable Margin for Loans
that are Base Rate Loans; and




          (ii) if a Eurodollar Rate Loan, at a rate per annum equal to the sum of (A) the
Eurodollar Rate determined for the applicable Interest Period and (B) the Applicable Margin
for Eurodollar Rate Loans in effect from time to time during such Eurodollar Interest
Period.



          (b) Interest Payments. (i) Interest accrued on each Base Rate Loan shall be payable in
arrears (A) on the first Business Day of each calendar quarter, commencing on the first such day
following the making of such Base Rate Loan, (B) upon the payment thereof in full and (C) at
maturity (whether by acceleration or otherwise) of such Base Rate Loan, (ii) interest accrued on
each Eurodollar Rate Loan shall be payable in arrears (A) on the last day of each Interest Period
applicable to such Loan and, if such Interest Period has a duration of more than three months, on
each date during such Interest Period occurring every three months from the first day of such
Interest Period, (B) upon the prepayment thereof in full or in part (on the principal amount
prepaid) and (C) at maturity (whether by acceleration or otherwise) of such Eurodollar Rate Loan
and (iii) interest accrued on the amount of all other Obligations shall be payable on demand from
and after the time such Obligation becomes due and payable (whether by acceleration or otherwise).



          (c) Default Interest. Notwithstanding the rates of interest specified in clause (a) above or
elsewhere herein, upon the request of the Requisite Lenders during the existence of an Event of
Default and for so long thereafter as such Event of Default shall continue, the principal balance
of all Loans and the amount of all other Obligations then due and payable shall bear interest at a
rate that is two percent (2%) per annum in excess of the rate of interest otherwise applicable to
such Loans or other Obligations from time to time. Such interest shall be payable on the date that
would otherwise be applicable to such interest pursuant to clause (b) above or otherwise on demand.



          Section 2.11 Conversion/Continuation Option



          (a) Each Borrower may elect (i) at any time on any Business Day to convert Base Rate Loans or
any portion thereof to Eurodollar Rate Loans and (ii) at the end of any applicable Interest Period,
to convert Eurodollar Rate Loans or any portion thereof into Base Rate Loans or to continue such
Eurodollar Rate Loans or any portion thereof for an additional Interest Period; provided, however,
that the aggregate amount of the Eurodollar Loans for each Interest Period must be in the amount of
at least $1,000,000 or an integral multiple of $100,000 in excess thereof. Each conversion or
continuation shall be allocated among the Loans of each Lender in accordance with such Lender’s
Ratable Portion. Each such election shall be in substantially the form of Exhibit E (a “Notice of
Conversion or Continuation”) and shall be made by giving the Administrative Agent at least three
Business Days’ prior written notice (or, in the case of the conversion of a Eurodollar Rate Loan to
a Base Rate Loan, one Business Day’s



25









 







prior written notice) specifying (A) the amount and type of Loan being converted or continued,
(B) in the case of a conversion to or a continuation of Eurodollar Rate Loans, the applicable
Interest Period and (C) in the case of a conversion, the date of such conversion.



          (b) The Administrative Agent shall promptly notify each Lender of its receipt of a Notice of
Conversion or Continuation and of the options selected therein. Notwithstanding the foregoing, no
conversion in whole or in part of Base Rate Loans to Eurodollar Rate Loans and no continuation in
whole or in part of Eurodollar Rate Loans upon the expiration of any applicable Interest Period
shall be permitted at any time at which (A) a Default or an Event of Default shall have occurred
and be continuing or (B) the continuation of, or conversion into, a Eurodollar Rate Loan would
violate any provision of Section 2.14. If, within the time period required under the terms of this
Section 2.11, the Administrative Agent does not receive a Notice of Conversion or Continuation from
the applicable Borrower containing a permitted election to continue any Eurodollar Rate Loans for
an additional Interest Period or to convert any such Loans, then, upon the expiration of the
applicable Interest Period, such Loans shall be automatically converted to Base Rate Loans. Each
Notice of Conversion or Continuation shall be irrevocable.



          Section 2.12 Fees



          Each Borrower has agreed to pay to the Administrative Agent and the Arranger fees, the amount
and dates of payment of which are embodied in the Fee Letter, in addition to the fees set forth
herein.



          Section 2.13 Payments and Computations



          (a) Each Borrower shall make each payment hereunder (including fees and expenses) not later
than 12:00 noon (New York time) on the day when due in Dollars to the Administrative Agent at its
address referred to in Section 11.8 in immediately available funds without set-off or counterclaim.
The Administrative Agent shall promptly thereafter cause to be distributed immediately available
funds relating to the payment of principal, interest or fees to the Lenders, in accordance with the
application of payments set forth in clause (f) or (g) below, as applicable, for the account of
their respective Applicable Lending Offices; provided, however, that amounts payable pursuant to
Section 2.15, Section 2.16 or Section 2.14(c) or (d) shall be paid only to the affected Lender or
Lenders. Payments received by the Administrative Agent after 11:00 a.m. (New York time) shall be
deemed to be received on the next Business Day.



          (b) All computations of interest and of fees shall be made by the Administrative Agent on the
basis of a year of 360 days (or, in the case of Loans bearing interest by reference to Citibank’s
base rate, a year of 365 or, if applicable, 366 days), in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for which such
interest and fees are payable. Each determination by the Administrative Agent of a rate of
interest hereunder shall be conclusive and binding for all purposes, absent manifest error.



          (c) Each payment by the Borrowers of any Loan (including interest or fees in respect thereof)
and each reimbursement of various costs, expenses or other Obligations shall be made in Dollars.



          (d) Whenever any payment hereunder shall be stated to be due on a day other than a Business
Day, the due date for such payment shall be extended to the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or fees,
as the case may be; provided, however, that if such extension would cause payment of interest on or
principal of any Eurodollar Rate Loan to be made in the next calendar month, such payment shall be



26









 







made on the immediately preceding Business Day. All repayments of any Loans shall be applied
as follows: first, to repay such Loans outstanding as Base Rate Loans and then, to repay such Loans
outstanding as Eurodollar Rate Loans, with those Eurodollar Rate Loans having earlier expiring
Interest Periods being repaid prior to those having later expiring Interest Periods.



          (e) Unless the Administrative Agent shall have received notice from the applicable Borrower to
the Lenders prior to the date on which any payment is due hereunder that such Borrower will not
make such payment in full, the Administrative Agent may assume that such 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 applicable Lender on such due date
an amount equal to the amount then due such Lender. If and to the extent that the applicable
Borrower shall not have made such payment in full to the Administrative Agent, each applicable
Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such
Lender together with interest thereon (at the Federal Funds Rate for the first Business Day and
thereafter, at the rate applicable to Base Rate Loans) for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the Administrative
Agent.



          (f) Except for payments and other amounts received by the Administrative Agent and applied in
accordance with the provisions of clause (g) below (or required to be applied in accordance with
Section 2.9(c)), all payments and any other amounts received by the Administrative Agent from or
for the benefit of a Borrower shall be applied as follows: first, to pay principal of, and interest
on, any portion of the Loans of such Borrower the Administrative Agent may have advanced pursuant
to the express provisions of this Agreement on behalf of any Lender, for which the Administrative
Agent has not then been reimbursed by such Lender or such Borrower, second, to pay all other
Obligations of such Borrower then due and payable and third, as the applicable Borrower so
designates. Payments in respect of the Loans received by the Administrative Agent shall be
distributed to each applicable Lender in accordance with such Lender’s Ratable Portion of the
applicable Loans; and all payments of fees and all other payments in respect of any other
Obligation shall be allocated to the applicable Lenders, in proportion to their respective Ratable
Portions.



          (g) Each Borrower hereby irrevocably waives the right to direct the application of any and all
payments in respect of the Obligations and any proceeds of Collateral after the occurrence and
during the continuance of an Event of Default and agrees that, notwithstanding the provisions of
Section 2.9(c) and clause (f) above shall apply all payments in respect of any Obligations and all
other proceeds of Collateral in the following order:




          (i) first, to pay interest on and then principal of any portion of the Loans that the
Administrative Agent may have advanced on behalf of any Lender for which the Administrative
Agent has not then been reimbursed by such Lender or the Borrowers;




          (ii) second, to pay Secured Obligations in respect of any expense reimbursements or
indemnities then due to the Administrative Agent;




          (iii) third, to pay Secured Obligations in respect of any expense reimbursements or
indemnities then due to the Lenders;




          (iv) fourth, to pay Secured Obligations in respect of any fees then due to the
Administrative Agent, the Lenders;




          (v) fifth, to pay interest then due and payable in respect of the Loans (or after the
Conversion Date, the Term Loans);



27









 






          (vi) sixth, to pay or prepay principal amounts on the Loans; and




          (vii) seventh, to the ratable payment of all other Secured Obligations;


provided, however, that if sufficient funds are not available to fund all payments to be made in
respect of any Secured Obligation described in any of clauses (i), (ii), (iii), (iv), (v), (vi) and
(vii) above, the available funds being applied with respect to any such Secured Obligation (unless
otherwise specified in such clause) shall be allocated to the payment of such Secured Obligation
ratably, based on the proportion of the Administrative Agent’s and each Lender’s interest in the
aggregate outstanding Secured Obligations described in such clauses. The order of priority set
forth in clauses (i), (ii), (iii), (iv), (v), (vi) and (vii) above may at any time and from time to
time be changed by the agreement of the Requisite Lenders without necessity of notice to or consent
of or approval by either Borrower, any Secured Party that is not a Lender or by any other Person
that is not a Lender. The order of priority set forth in clauses (i), (ii), (iii) and (iv) above
may be changed only with the prior written consent of the Administrative Agent in addition to that
of the Requisite Lenders.




          Section 2.14 Special Provisions Governing Eurodollar Rate Loans



          (a) Determination of Interest Rate



          The Eurodollar Rate for each Interest Period for Eurodollar Rate Loans shall be determined by
the Administrative Agent pursuant to the procedures set forth in the definition of “Eurodollar
Rate.” The Administrative Agent’s determination shall be presumed to be correct absent manifest
error and shall be binding on each Borrower.



          (b) Interest Rate Unascertainable, Inadequate or Unfair



          In the event that (i) the Administrative Agent determines that adequate and fair means do not
exist for ascertaining the applicable interest rates by reference to which the Eurodollar Rate then
being determined is to be fixed or (ii) the Requisite Lenders notify the Administrative Agent that
the Eurodollar Rate for any Interest Period will not adequately reflect the cost to the Lenders of
making or maintaining such Loans for such Interest Period, the Administrative Agent shall forthwith
so notify the applicable Borrower and the Lenders, whereupon each Eurodollar Loan shall
automatically, on the last day of the current Interest Period for such Loan, convert into a Base
Rate Loan and the obligations of the Lenders to make Eurodollar Rate Loans or to convert Base Rate
Loans into Eurodollar Rate Loans shall be suspended until the Administrative Agent (or the
Requisite Lenders through the Administrative Agent) shall notify the Borrowers (or after the
Conversion Date, the Term Borrower) that the circumstances causing such suspension no longer exist
(and the Administrative Agent and/or the Requisite Lenders agree to promptly provide such notice).
Upon receipt of such notice, the applicable Borrower may revoke any pending request for a Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the amount specified
therein.



          (c) Increased Costs



          If at any time any Lender determines that the introduction after the date hereof of, or any
change after the date hereof in or in the interpretation of, any law, treaty or governmental rule,
regulation or order or the compliance by such Lender with any guideline, request or directive from
any central bank or other Governmental Authority (whether or not having the force of law), shall
have the effect of increasing the cost to such Lender of agreeing to make or making, funding or
maintaining any Eurodollar Rate Loans, then the applicable Borrower shall from time to time, within
15 days following demand by



28









 







such Lender, which demand shall include a calculation in reasonable detail of the amount so
demanded (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent
for the account of such Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost, submitted to the applicable
Borrower and the Administrative Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error. Notwithstanding the foregoing provisions of this clause (c), no
Lender shall be entitled to compensation for any increased cost resulting from a failure by such
Lender to comply with any request from or requirement of any central banking or financial
regulatory authority (whether or not having the force of law, but if not having the force of law
being a request of a nature with which banks generally are expected or accustomed to comply).



          (d) Illegality



          Notwithstanding any other provision of this Agreement, if any Lender determines that the
introduction of, or any change in or in the interpretation of, any law, treaty or governmental
rule, regulation or order after the date of this Agreement shall make it unlawful, or any central
bank or other Governmental Authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to make Eurodollar Rate Loans or to continue to fund or maintain
Eurodollar Rate Loans, then, on notice thereof and demand therefor by such Lender to the applicable
Borrower through the Administrative Agent, (i) the obligation of such Lender to make or to continue
Eurodollar Rate Loans and to convert Base Rate Loans into Eurodollar Rate Loans shall be suspended,
and the applicable Borrower shall have the right to revoke any pending request for a Borrowing of
Eurodollar Rate Loans (or, failing that, each such Lender shall make a Base Rate Loan pending
request) and (ii) if the affected Eurodollar Rate Loans are then outstanding, the applicable
Borrower shall immediately, at its option, prepay such Loan or convert each such Loan into a Base
Rate Loan. If, at any time after a Lender gives notice under this clause (d), such Lender
determines that it may lawfully make Eurodollar Rate Loans, such Lender shall promptly give notice
of that determination to the applicable Borrower and the Administrative Agent, and the
Administrative Agent shall promptly transmit the notice to each other Lender. The applicable
Borrower’s right to request, and such Lender’s obligation, if any, to make Eurodollar Rate Loans
shall thereupon be restored.



          (e) Breakage Costs



          In addition to all amounts required to be paid by either Borrower pursuant to Section 2.10,
such Borrower shall compensate each Lender, within 15 days following demand by such Lender, for all
actual and documented losses, expenses and liabilities (including any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to
fund or maintain such Lender’s Eurodollar Rate Loans to such Borrower but excluding any loss of the
Applicable Margin on the relevant Loans and any other loss of profit) that such Lender may sustain
(i) if for any reason (other than solely by reason of such Lender being a Non-Funding Lender) a
proposed Borrowing, conversion into or continuation of Eurodollar Rate Loans does not occur on a
date specified therefor in a Notice of Borrowing or a Notice of Conversion or Continuation given by
the applicable Borrower or in a telephonic request by it for borrowing or conversion or
continuation or a successive Interest Period does not commence after notice therefor is given
pursuant to Section 2.11, (ii) if for any reason any Eurodollar Rate Loan is prepaid (including
mandatorily pursuant to Section 2.9) on a date that is not the last day of the applicable Interest
Period, (iii) as a consequence of a required conversion of a Eurodollar Rate Loan to a Base Rate
Loan as a result of any of the events indicated in clause (d) above or (iv) as a consequence of any
failure by either Borrower to repay Eurodollar Rate Loans when required by the terms hereof. The
Lender making demand for such compensation shall deliver to the applicable Borrower concurrently
with such demand a written statement setting forth in reasonable detail a



29









 







calculation of such losses, expenses and liabilities, and this statement shall be conclusive
as to the amount of compensation due to such Lender, absent manifest error.



          Section 2.15 Capital Adequacy



          If at any time any Lender determines that (a) the adoption of, or any change in or in the
interpretation of, any law, treaty or governmental rule, regulation or order after the date of this
Agreement regarding capital adequacy, (b) compliance with any such law, treaty, rule, regulation or
order or (c) compliance with any guideline or request or directive from any central bank or other
Governmental Authority (whether or not having the force of law) after the date hereof shall have
the effect of reducing the rate of return on such Lender’s (or any corporation controlling such
Lender’s) capital as a consequence of its obligations hereunder or under to a level below that
which such Lender or such corporation could have achieved but for such adoption, change, compliance
or interpretation, then, within 15 days following demand from time to time by such Lender, which
demand shall include a calculation in reasonable detail of the amount so demanded (with a copy of
such demand to the Administrative Agent), the applicable Borrower shall pay to the Administrative
Agent for the account of such Lender, from time to time as specified by such Lender, additional
amounts sufficient to compensate such Lender for such reduction. A certificate setting forth in
reasonable detail a calculation of such amounts submitted to the applicable Borrower and the
Administrative Agent by such Lender shall be conclusive and binding for all purposes absent
manifest error. Notwithstanding the foregoing provisions of this Section 2.15, no Lender shall be
entitled to compensation for any cost or liability resulting from a failure by such Lender to
comply with any request from or requirement of any central banking or financial regulatory
authority (whether or not having the force of law, but if not having the force of law being a
request of a nature with which banks generally are expected or accustomed to comply).



          Section 2.16 Taxes



          (a) Except as otherwise provided in this Section 2.16, any and all payments by any Loan Party
to the Administrative Agent or any Lender under any Loan Document to which such Loan Party is a
party shall be made free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding (i) in the case of each Lender and the Administrative Agent (A) taxes measured
by its net income, and franchise taxes imposed on it, and similar taxes imposed by the jurisdiction
(or any political subdivision thereof) under the laws of which such Lender or the Administrative
Agent (as the case may be) is organized and (B) any U.S. withholding taxes payable with respect to
payments under the Loan Documents under laws (including any statute, treaty or regulation) in
effect on the Closing Date (or, in the case of (x) an Eligible Assignee, the date of the Assignment
and Acceptance or (y) a successor Administrative Agent, the date of the appointment of such
Administrative Agent), applicable to such Lender or the Administrative Agent, as the case may be,
but not excluding any U.S. withholding taxes payable as a result of any change in such laws
occurring after the Closing Date (or the date of such Assignment and Acceptance or the date of such
appointment of such Administrative Agent) and (ii) in the case of each Lender, taxes measured by
its net income, and franchise taxes imposed on it as a result of a present or former connection
between such Lender and the jurisdiction of the Governmental Authority imposing such tax or any
taxing authority thereof or therein (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as “Taxes”). If any Taxes
shall be required by law to be deducted from or in respect of any sum payable under any Loan
Document to any Lender or the Administrative Agent (w) the sum payable shall be increased as may be
necessary so that, after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.16, such Lender or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had no such deductions been
made, (x) the relevant Loan Party shall make such deductions, (y) the relevant Loan Party shall pay
the full amount deducted to the relevant



30









 







taxing authority or other authority in accordance with applicable law and (z) the relevant
Loan Party shall deliver to the Administrative Agent evidence of such payment.



          (b) In addition, each Loan Party agrees to pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies of the United States or any
political subdivision thereof or any applicable foreign jurisdiction, and all liabilities with
respect thereto, in each case arising from any payment made under any Loan Document or from the
execution, delivery or registration of, or otherwise with respect to, any Loan Document
(collectively, “Other Taxes”).



          (c) Each Loan Party shall, jointly and severally, indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including any Taxes and Other Taxes imposed by
any jurisdiction on amounts payable under this Section 2.16) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including for penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 30 days from the date
such Lender or the Administrative Agent (as the case may be) makes written demand therefor.



          (d) Within 30 days after the date of any payment of Taxes or Other Taxes by any Loan Party,
the applicable Borrower (or after the Conversion Date, the Term Borrower) shall furnish to the
Administrative Agent, at its address referred to in Section 11.8, the original or a certified copy
of a receipt evidencing payment thereof.



          (e) Without prejudice to the survival of any other agreement of any Loan Party hereunder, the
agreements and obligations of such Loan Party contained in this Section 2.16 shall survive the
payment in full of the Obligations.



          (f) (i) Each Non-U.S. Lender that is entitled to an exemption from U.S. withholding tax, or
that is subject to such tax at a reduced rate under an applicable tax treaty, shall (v) on or prior
to the Closing Date in the case of each Non-U.S. lender that is a signatory hereto, (w) on or prior
to the date of the Assignment and Acceptance pursuant to which such Non-U.S. Lender becomes a
Lender or the date a successor Administrative Agent becomes the Administrative Agent hereunder, (x)
on or prior to the date on which any such form or certification expires or becomes obsolete, (y)
after the occurrence of any event requiring a change in the most recent form or certification
previously delivered by it to the applicable Borrower and the Administrative Agent, and (z) from
time to time if requested by either Borrower (or after the Conversion Date, the Term Borrower) or
the Administrative Agent, provide the Administrative Agent and such Borrower with two completed
originals of each of the following, as applicable:




          (A) Form W-8ECI (claiming exemption from U.S. withholding tax because the
income is effectively connected with a U.S. trade or business) or any successor
form;




          (B) Form W-8BEN (claiming exemption from, or a reduction of, U.S. withholding
tax under an income tax treaty) or any successor form;




          (C) in the case of a Non-U.S. Lender claiming exemption under Sections 871(h)
or 881(c) of the Code, a Form W-8BEN (claiming exemption from U.S. withholding tax
under the portfolio interest exemption) or any successor form; or



31









 






          (D) any other applicable form, certificate or document prescribed by the IRS
certifying as to such Non-U.S. Lender’s entitlement to such exemption from U.S.
withholding tax or reduced rate with respect to all payments to be made to such
Non-U.S. Lender under the Loan Documents.




Unless the applicable Borrower and the Administrative Agent have received forms or other
documents satisfactory to them indicating that payments under any Loan Document to or for a
Non-U.S. Lender are not subject to U.S. withholding tax or are subject to such tax at a rate
reduced by an applicable tax treaty, the Loan Parties and the Administrative Agent shall
withhold amounts required to be withheld by applicable Requirements of Law from such
payments at the applicable statutory rate.




          (ii) Each U.S. Lender shall (v) on or prior to the Closing Date in the case of each
U.S. Lender that is a signatory hereto, (w) on or prior to the date of the Assignment and
Acceptance pursuant to which such U.S. Lender becomes a Lender or on or prior to the date a
successor Administrative Agent becomes the Administrative Agent hereunder, (x) on or prior
to the date on which any such form or certification expires or becomes obsolete, (y) after
the occurrence of any event requiring a change in the most recent form or certification
previously delivered by it to the applicable Borrower and the Administrative Agent, and (z)
from time to time if requested by the applicable Borrower or the Administrative Agent,
provide the Administrative Agent and the applicable Borrower with two completed originals of
Form W-9 (certifying that such U.S. Lender is entitled to an exemption from U.S. backup
withholding tax) or any successor form. Solely for purposes of this Section 2.16(f), a U.S.
Lender shall not include a Lender or an Administrative Agent that may be treated as an
exempt recipient based on the indicators described in Treasury Regulation section
1.6049-4(c)(1)(ii).



          (g) Any Lender claiming any additional amounts payable pursuant to this Section 2.16 shall use
its reasonable efforts (consistent with its internal policies and Requirements of Law) to change
the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the
need for, or reduce the amount of, any such additional amounts that would be payable or may
thereafter accrue and would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender.



          Section 2.17 Substitution of Lenders



          (a) In the event that (i) any Lender makes a claim under Section 2.14(c) or Section 2.15, (ii)
it becomes illegal for any Lender to continue to fund or make any Eurodollar Rate Loan and such
Lender notifies the Borrowers (or after the Conversion Date, the Term Borrower) pursuant to Section
2.14(d), (iii) any Loan Party is required to make any payment pursuant to Section 2.16 that is
attributable to a particular Lender or (iv) any Lender becomes a Non-Funding Lender (any such
Lender, an “Affected Lender”), such Borrower may substitute any Lender, Affiliate of a Lender or
Approved Fund and, if reasonably acceptable to the Administrative Agent, any other Eligible
Assignee (a “Substitute Institution”) for such Affected Lender hereunder, after delivery of a
written notice (a “Substitution Notice”) by such Borrower to the Administrative Agent and the
Affected Lender within a reasonable time (in any case not to exceed 90 days) following the
occurrence of any of the events described above that such Borrower intends to make such
substitution; provided, however, that, if more than one Lender claims increased costs, illegality
or right to payment arising from the same act or condition and such claims are received by such
Borrower within 30 days of each other, then such Borrower may substitute all, but not (except to
the extent such Borrower has already substituted one of such Affected Lenders before such
Borrower’s receipt of the other Affected Lenders’ claim) less than all, Lenders making such claims.



32









 





          (b) If the Substitution Notice was properly issued under this Section 2.17, the Affected
Lender shall sell, and the Substitute Institution shall purchase, all rights and claims of such
Affected Lender under the Loan Documents and the Substitute Institution shall assume, and the
Affected Lender shall be relieved of, the Affected Lender’s Commitments and all other prior
unperformed obligations of the Affected Lender under the Loan Documents (other than in respect of
any damages (which pursuant to Section 11.5, do not include exemplary or punitive damages, to the
extent permitted by applicable law) in respect of any such unperformed obligations). Such purchase
and sale (and the corresponding assignment of all rights and claims hereunder) shall be recorded in
the Register maintained by the Administrative Agent and shall be effective on (and not earlier
than) the later of (i) the receipt by the Affected Lender of its Ratable Portion of the Loans,
together with any other Obligations then owing to it, (ii) the receipt by the Administrative Agent
of an Assignment and Acceptance executed by the Substitute Institution and (iii) the payment in
full to the Affected Lender in cash of all fees, unreimbursed costs and expenses and indemnities
accrued and unpaid through such effective date, without duplication of clause (i) above. Upon the
effectiveness of such sale, purchase and assumption, the Substitute Institution shall become a
“Lender” hereunder for all purposes of this Agreement having a Commitment in the amount of such
Affected Lender’s Commitment assumed by it and such Commitment of the Affected Lender shall be
terminated; provided, however, that all indemnities under the Loan Documents shall continue in
favor of such Affected Lender.



          (c) Each Lender agrees that, if it becomes an Affected Lender and its rights and claims are
assigned hereunder to a Substitute Institution pursuant to this Section 2.17, it shall execute and
deliver to the Administrative Agent an Assignment and Acceptance to evidence such assignment,
together with any Note (if such Loans are evidenced by a Note) evidencing the Loans subject to such
Assignment and Acceptance; provided, however, that the failure of any Affected Lender to execute an
Assignment and Acceptance shall not render such assignment invalid.



          Section 2.18 Delay in Requests



          Failure or delay on the part of the Administrative Agent or any Lender to demand compensation
pursuant to Sections 2.14(c), 2.14(e), 2.15 or 2.16 shall not constitute a waiver of such Person’s
right to demand such compensation, provided that the applicable Borrower shall not be required to
compensate such Person pursuant to any such Section for any amount incurred or suffered more than
six months prior to the date that such Person notified such Borrower of the event giving rise to
such amount and of such Person’s intention to claim compensation therefor (except that, if the
event giving rise to such amount is retroactive, then the six month period referred to above shall
be extended to include the period of retroactive effect thereof).



ARTICLE III




Conditions To Loans




          Section 3.1 Conditions Precedent to Initial Loans



          The obligation of each Lender to make the Loans requested to be made by it on the Closing Date
is subject to the satisfaction or waiver in accordance with Section 11.1 of each of the following
conditions precedent:



          (a) Certain Documents. The Administrative Agent shall have received on or prior to the
Closing Date (and, to the extent any Borrowing of any Eurodollar Rate Loans is requested to be made
on the Closing Date, in respect of the Notice of Borrowing for such Eurodollar Rate Loans, at least
three Business Days prior to the Closing Date) each of the following, each dated the Closing Date
unless



33









 







otherwise indicated or agreed to by the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent:




          (i) this Agreement, duly executed and delivered by the Borrowers and, for the account
of each Lender requesting the same, Notes of the applicable Borrowers conforming to the
requirements set forth herein;




          (ii) the Administrative Agent shall be satisfied that neither Acquired Co. nor any
Subsidiary thereof shall have any obligations or liability outstanding under any foreign
exchange hedging contracts;




          (iii) the Pledge Agreement, duly executed by the Borrowers and each Grantor, together
with each of the following:




          (A) evidence reasonably satisfactory to the Administrative Agent that, upon the
filing and recording of instruments delivered at the Closing, the Administrative
Agent (for the benefit of the Secured Parties) shall have a valid and perfected
first priority security interest in the Collateral, including (x) such documents
duly executed by each Loan Party as the Administrative Agent may request with
respect to the perfection of its security interests in the Collateral (including
financing statements under the UCC) and (y) copies of UCC search reports from the
secretary of state (or comparable filing office) of the state of formation of each
Loan Party as of a recent date listing all effective financing statements that name
any Loan Party as debtor, together with copies of such financing statements, none of
which shall cover the Collateral except for those that shall be terminated on the
Closing Date or are otherwise permitted hereunder; and




          (B) all certificates, instruments and other documents representing all Pledged
Stock being pledged pursuant to such Pledge and Security Agreement and stock powers
for such certificates, instruments and other documents executed in blank;




          (iv) a favorable opinion of Mayer, Brown Rowe & Maw LLP, counsel to the Loan Parties,
in form and substance reasonably satisfactory to the Administrative Agent;




          (v) a copy of each Related Document certified as being complete and correct by a
Responsible Officer of the Convertible Borrower;




          (vi) a copy of the articles or certificate of incorporation (or equivalent Constituent
Document) of each Loan Party, certified as of a recent date by the Secretary of State of the
state of organization of such Loan Party, together with certificates of such official
attesting to the good standing of each such Loan Party;




          (vii) a certificate of the Secretary or an Assistant Secretary of each Loan Party
certifying (A) the names and true signatures of each officer of such Loan Party that has
been authorized to execute and deliver any Loan Document or other document required
hereunder to be executed and delivered by or on behalf of such Loan Party, (B) the by-laws
(or equivalent Constituent Document) of such Loan Party as in effect on the date of such
certification, (C) the resolutions of such Loan Party’s Board of Directors (or equivalent
governing body) approving and authorizing the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party and (D) that there have been
no changes in the certificate of



34









 







incorporation (or equivalent Constituent Document) of such Loan Party from the
certificate of incorporation (or equivalent Constituent Document) delivered pursuant to
clause (vi) above;




          (viii) a certificate of a Responsible Officer of each Borrower, stating that the
applicable Borrower is Solvent after giving effect to the initial Loans, the application of
the proceeds thereof in accordance with Section 7.9 and the payment of all estimated legal,
accounting and other fees related hereto and thereto;




          (ix) a certificate of a Responsible Officer of each Borrower to the effect that (A) the
condition set forth in Section 3.1(f) has been satisfied and (B) no litigation not listed on
Schedule 4.7 has been commenced against any Loan Party or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect; and




          (x) such other certificates, documents, agreements and information respecting any Loan
Party as any Lender through the Administrative Agent may reasonably request.



          (b) Fee and Expenses Paid. There shall have been paid to the Administrative Agent, for the
account of the Administrative Agent and the Lenders, as applicable, all fees and expenses
(including reasonable and documented fees and expenses of counsel) due and payable on or before the
Closing Date (including all such fees described in the Fee Letter).



          (c) Related Documents. The Administrative Agent shall be satisfied that (i) the terms and
conditions of the Acquisition Agreement shall not have been amended, waived or modified, except to
the extent permitted by Section 8.12, without the approval of the Administrative Agent, (ii) the
Acquisition Agreement and the other Related Documents shall have been approved by all corporate
action of each Borrower and each of the other parties thereto, shall have been executed and
delivered by each such party, shall be in full force and effect and there shall not have occurred
and be continuing any material breach or default thereunder, (iii) subject only to the funding of
the initial Loans hereunder, all conditions precedent to the consummation of the Acquisition shall
have been satisfied or waived with the consent of the Administrative Agent; provided that
no such consent shall be required to the extent such waiver does not materially affect the
interests of the Secured Parties under the Loan Documents or in the Collateral, and (iv) subject
only to the funding of the initial Loans hereunder, the Acquisition shall have been consummated in
accordance with the Acquisition Agreement and all applicable Requirements of Law and all
representations and warranties contained in the Acquisition Agreement and the other Related
Documents shall be true and correct in all material respects on the Closing Date.



          (d) Consents, Etc. Each of the Loan Parties shall have received all consents and
authorizations required pursuant to any material Contractual Obligation with any other Person and
shall have obtained all Permits of, and effected all notices to and filings with, any Governmental
Authority, in each case, as may be necessary to allow each of the Loan Parties lawfully (i) to
execute, deliver and perform, in all material respects, their respective obligations hereunder and
under the Loan Documents and the Related Documents to which each of them, respectively, is, or
shall be, a party, (ii) to create and perfect the Liens on the Collateral to be owned by each of
them in the manner and for the purpose contemplated by the Loan Documents and (iii) to consummate
the Acquisition.



          (e) Request for Borrowing. With respect to each Loan, the Administrative Agent shall have
received a duly executed Notice of Borrowing.



35









 





          (f) Representations and Warranties; No Defaults. The following statements shall be true on
the date of such Loan or Issuance, both before and after giving effect thereto and, in the case of
any Loan, to the application of the proceeds thereof:




          (i) the representations and warranties set forth in Article IV and in the other Loan
Documents shall be true and correct on and as of the Closing Date and shall be true and
correct in all material respects on and as of any such date after the Closing Date with the
same effect as though made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects as of such earlier
date; and




          (ii) no Default or Event of Default shall have occurred and be continuing.



          (g) Additional Matters. The Administrative Agent shall have received such additional
documents, information and materials as any Lender, through the Administrative Agent, may
reasonably request.



          Section 3.2 Determinations of Initial Borrowing Conditions



          For purposes of determining compliance with the conditions specified in Section 3.1, each
Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document
or other matter required thereunder to be consented to or approved by or acceptable or satisfactory
to the Lenders unless an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender prior to the initial
Borrowing, specifying its objection thereto and such Lender shall not have made available to the
Administrative Agent such Lender’s Ratable Portion of such Borrowing.



ARTICLE IV




Representations and Warranties




          To induce the Lenders and the Administrative Agent to enter into this Agreement, each of the
Borrower represents and warrants each of the following to the Lenders and the Administrative Agent,
on and as of the Closing Date and after giving effect to the Acquisition and the making of the
Loans and the other financial accommodations on the Closing Date.



          Section 4.1 Corporate Existence; Compliance with Law



          Each of the Loan Parties (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) is duly qualified to do business as a foreign
entity and in good standing under the laws of each jurisdiction where such qualification is
necessary, except where the failure to be so qualified or in good standing would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect, (c) has all requisite power
and authority and the legal right to own, pledge, mortgage and operate its properties, to lease the
property it operates under lease and to conduct its business as now or currently proposed to be
conducted, (d) is in compliance with its Constituent Documents, (e) is in compliance with all
applicable Requirements of Law except where the failure to be in compliance would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect and (f) has all necessary
Permits from or by, has made all necessary filings with, and has given all necessary notices to,
each Governmental Authority having jurisdiction, to the extent required for such ownership,
operation and conduct, except for Permits or filings that can be obtained or made by the



36









 




taking of ministerial action to secure the grant or transfer thereof or the failure to obtain
or make would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.




          Section 4.2 Corporate Power; Authorization; Enforceable Obligations



          (a) The execution, delivery and performance by each Loan Party of the Loan Documents to which
it is a party and the consummation of the transactions contemplated thereby:




          (i) are within such Loan Party’s corporate, limited liability company, partnership or
other powers;




          (ii) have been or, at the time of delivery thereof pursuant to Article III will have
been duly authorized by all necessary action, including the consent of shareholders,
partners and members where required;




          (iii) do not and will not (A) contravene or violate such Loan Party’s or any of its
Subsidiaries’ respective Constituent Documents, (B) violate any other Requirement of Law
applicable to such Loan Party (including Regulations T, U and X of the Federal Reserve
Board), or any order or decree of any Governmental Authority or arbitrator applicable to
such Loan Party, (C) conflict with or result in the breach of, or constitute a default
under, or result in or permit the termination or acceleration of, any Related Document or
any other material Contractual Obligation of such Loan Party or any of its Subsidiaries or
(D) result in the creation or imposition of any Lien upon any property of such Loan Party or
any of its Subsidiaries, other than those in favor of the Secured Parties pursuant to the
Collateral Documents; and




          (iv) do not require the consent of, authorization by, approval of, notice to, or filing
or registration with, any Governmental Authority or any other Person, other than those
listed on Schedule 4.2 and that have been or will be, prior to the Closing Date, obtained or
made, copies of which have been or will be delivered to the Administrative Agent pursuant to
Section 3.1, and each of which on the Closing Date will be in full force and effect and,
with respect to the Collateral, filings required to perfect the Liens created by the
Collateral Documents.



          (b) This Agreement has been, and each of the other Loan Documents will have been upon delivery
thereof pursuant to the terms of this Agreement, duly executed and delivered by each Loan Party
party thereto. This Agreement is, and the other Loan Documents will be, when delivered hereunder,
the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such
Loan Party in accordance with its terms, subject to bankruptcy, insolvency and similar laws
affecting the enforceability of creditors’ rights generally and to general principles of equity.



          Section 4.3 Ownership of Borrowers; Subsidiaries



          (a) On the Closing Date, all of the outstanding Stock of the Convertible Borrower is owned
beneficially and of record by ProLogis North American Closed-End Industrial Fund REIT LLC, ProLogis
North American Closed-End Industrial Fund Sub GP LLC and Palmtree Acquisition Corporation free and
clear of all Liens other than the Lien in favor of the Secured Parties created by the Pledge
Agreement and inchoate tax and ERISA Liens. All of the outstanding Stock of the Term Borrower is
owned beneficially and of record by the Convertible Borrower, free and clear of all Liens other
than the Lien in favor of the Secured Parties created by the Pledge Agreement. On the Closing
Date, no Stock of either Borrower is subject to any option, warrant, right of conversion or
purchase or any similar right other than in connection with Article XII. There are no agreements
or understandings to which the Borrower is a party with respect to the voting, sale or transfer of
any shares of Stock of the



37









 







Borrower or any agreement restricting the transfer or hypothecation of any such shares (other
than any Loan Document) and the agreements and instruments contemplated hereby.



          (b) Set forth on Schedule 4.3 is a complete and accurate organizational chart of the Group
Members as of the Closing Date and a list of each direct Subsidiary of each Borrower and, as to
each such Subsidiary, the jurisdiction of its organization, the number of shares of each class of
Stock authorized (if applicable), the number outstanding on the Closing Date and the number and
percentage of the outstanding shares of each such class owned (directly or indirectly) by each
Borrower. Other than as permitted by this Agreement, no Stock of any Subsidiary of either Borrower
is subject to any outstanding option, warrant, right of conversion or purchase of any similar
right. All of the outstanding Stock of each Subsidiary of each Borrower owned (directly or
indirectly) by such Borrower is owned by such Borrower or a Subsidiary of such Borrower, free and
clear of all Liens (other than inchoate tax and ERISA Liens), options, warrants, rights of
conversion or purchase or any similar rights. No Group Member is a party to, or has knowledge of,
any agreement restricting the transfer or hypothecation of any Stock of any such Subsidiary, other
than the Loan Documents. Neither Borrower owns or holds, directly or indirectly, any Stock of any
Person other than such Subsidiaries and Investments permitted by Section 8.3 and, in the case of
the Convertible Borrower, the Stock of the Term Borrower.



          Section 4.4 Financial Statements



          (a) The Consolidated balance sheet of PM Fund as of December 31, 2006 and the related
Consolidated statements of income, retained earnings and cash flows for the fiscal year then ended,
fairly present the Consolidated financial condition of PM Fund as of such date and the results of
its operations such fiscal year, all in conformity with GAAP.



          (b) As of the Closing Date, neither PM Fund nor any of its Subsidiaries has any material
obligation, contingent liability or liability for taxes, long-term leases (other than those entered
into in the ordinary course of business) or unusual forward or long-term commitment that is not
reflected in the financial statements referred to in clause (a) above or in the notes thereto and
not otherwise permitted by this Agreement.



          (c) The Projections were prepared in good faith based upon assumptions that ProLogis believed
were reasonable as of the date of the preparation thereof (it being understood that such
projections are subject to significant uncertainties and contingencies, many of which are beyond
the control of the Borrowers and their Subsidiaries, and that no assurance can be given that such
projections will be realized).



          Section 4.5 Intentionally Omitted



          Section 4.6 Solvency



          Both before and after giving effect to (a) the Loans to be made or extended on the Closing
Date or such other date as Loans requested hereunder are made or extended, (b) the disbursement of
the proceeds of such Loans pursuant to the instructions of each Borrower, (c) the Acquisition and
the consummation of the other financing transactions contemplated hereby and (d) the payment and
accrual of all transaction costs in connection with the foregoing, each Borrower is Solvent.



          Section 4.7 Litigation



          Except as set forth on Schedule 4.7, there are no pending or, to the knowledge of the
Borrowers, threatened actions, investigations or proceedings affecting any Group Member before any



38









 







court, Governmental Authority or arbitrator other than those that, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect. The performance of any action by any
Loan Party required or contemplated by any Loan Document or any Related Document is not restrained
or enjoined (either temporarily, preliminarily or permanently).



          Section 4.8 Taxes



          All federal and other material state, foreign and other material tax returns, reports and
statements (collectively, the “Tax Returns”) required to be filed by each Group Member have been
filed with the appropriate Governmental Authorities in all jurisdictions in which such Tax Returns
are required to be filed, all such Tax Returns are true and correct in all material respects, and
all taxes, charges and other impositions reflected therein or otherwise due and payable have been
paid prior to the date on which any fine, penalty, interest, late charge or loss may be added
thereto for non-payment thereof except where contested in good faith and by appropriate proceedings
if adequate reserves therefor have been established on the books of such Group Member in conformity
with GAAP. No Tax Return is under audit by any Governmental Authority and no notice of such an
audit or any assertion of any claim for Taxes has been given or made by any Governmental Authority.



          Section 4.9 Full Disclosure



          All written information prepared or furnished by or on behalf of the Group Members in
connection with this Agreement or the Related Documents or the consummation of the transactions
contemplated hereunder and thereunder, taken as a whole, does not contain any material misstatement
of fact or omit to state any material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading in any material respect.



          Section 4.10 Margin Regulations



          Neither Borrower is engaged in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U of the Federal Reserve Board), and no
proceeds of any Loan will be used to purchase or carry any such margin stock or to extend credit to
others for the purpose of purchasing or carrying any such margin stock in contravention of
Regulation T, U or X of the Federal Reserve Board.



          Section 4.11 No Burdensome Restrictions; No Defaults



          (a) No Group Member is in default under or with respect to any Contractual Obligation owed by
it and, to the knowledge of either Borrower, no other party is in default under or with respect to
any Contractual Obligation owed to any Loan Party or to any Subsidiary of any Loan Party, other
than, in either case, those defaults that, in the aggregate, would not reasonably be expected to
have a Material Adverse Effect.



          (b) No Default or Event of Default has occurred and is continuing.



          Section 4.12 Investment Company Act



          No Group Member is an “investment company” or an “affiliated person” of, or “promoter” or
“principal underwriter” for, an “investment company,” as such terms are defined in the Investment
Company Act of 1940, as amended.



39









 





          Section 4.13 Use of Proceeds



          The proceeds of the Loans are being used by the Borrowers (and, to the extent distributed to
them by the applicable Borrower, each other Loan Party) solely (a) to finance the Acquisition and
for the payment of related transaction costs, fees and expenses, (b) for the payment of transaction
costs, fees and expenses incurred in connection with this Agreement and the transactions
contemplated hereby, (c) in connection with the Conversion Event and (d) to the extent not used for
the foregoing purposes, for working capital and Capital Expenditures of the Group Members and, to
the extent not exceeding $25,000,000, general corporate purposes.



          Section 4.14 Insurance



          All policies of insurance of any kind or nature of the Group Members are in full force and
effect and are of a nature and provide such coverage as is sufficient and as is customarily carried
by businesses of the size and character of such Person.



          Section 4.15 Labor Matters



          (a) There are no strikes, work stoppages, slowdowns or lockouts pending or, to the knowledge
of the Borrower, threatened against or involving the Group Members, other than those that, in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.



          (b) There are no unfair labor practices, grievances, complaints or arbitrations pending, or,
to either Borrowers’ knowledge, threatened, against or involving any Group Member, nor are there
any arbitrations or grievances threatened involving the Borrower or any of its Subsidiaries, other
than those that, in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.



          (c) Except as set forth on Schedule 4.15, as of the Closing Date, there is no collective
bargaining agreement covering any employee of any Group Member.



          (d) Schedule 4.15 sets forth, as of the date hereof, all material consulting agreements,
executive employment agreements, executive compensation plans, deferred compensation agreements,
employee stock purchase and stock option plans and severance plans of the Group Members.



          Section 4.16 ERISA



          (a) Schedule 4.16 separately identifies as of the date hereof all Title IV Plans, all
Multiemployer Plans and all of the employee benefit plans within the meaning of Section 3(3) of
ERISA to which any Group Member has any obligation or liability, contingent or otherwise.



          (b) Each employee benefit plan of each Group Member is intended to qualify under Section 401
of the Code does so qualify, and any trust created thereunder is exempt from tax under the
provisions of Section 501 of the Code, except where such failures, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.



          (c) Each Title IV Plan is in compliance in all material respects with applicable provisions of
ERISA, the Code and other Requirements of Law except for noncompliance that, in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.



          (d) There has been no, nor is there reasonably expected to occur, any ERISA Event other than
those that, in the aggregate, would not have a Material Adverse Effect.



40









 





          (e) Except to the extent set forth on Schedule 4.16, no Group Member or any ERISA Affiliate
would have any Withdrawal Liability as a result of a complete withdrawal as of the date hereof from
any Multiemployer Plan.



          Section 4.17 Environmental Matters



          (a) Each Group Member conducts in the ordinary course of business a review of the effect of
existing Environmental Laws and claims alleging potential Environmental Liabilities and Costs or
responsibility for violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof each Borrower has reasonably concluded that, except as
specifically disclosed in Schedule 4.17, such Environmental Laws and Environmental Liabilities and
Costs would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.



          (b) To the knowledge of the Borrowers, no Group Member nor any Real Property owned, operated
or leased by or for any Group Member is subject to any pending or threatened, claim, order,
agreement, notice of violation, notice of potential liability or is the subject of any pending or
threatened proceeding or governmental investigation under or pursuant to Environmental Laws other
than those that, in the aggregate, are not reasonably likely to result in Environmental Liabilities
and Costs in excess of 5% of Value.



          (c) To the knowledge of the Borrowers, there are no facts, circumstances or conditions arising
out of or relating to the operations or ownership of the Group Members or of Real Property owned,
operated or leased by the Group Members that are not specifically included in the financial
information furnished to the Lenders other than those that, in the aggregate, would not have a
reasonable likelihood of resulting in Environmental Liabilities and Costs in excess of 5% of Value.



          (d) To the knowledge of the Borrowers, as of the date hereof, no Environmental Lien has
attached to any property of any Group Member and, to the knowledge of the Borrowers, no facts,
circumstances or conditions exist that could reasonably be expected to result in any such Lien
attaching to any such property.



          Section 4.18 [Intentionally Omitted].



          Section 4.19 Title; Real Property



          (a) Each Group Member has good record and marketable title to, or valid leasehold interests
in, all Real Property and good title to all personal property, in each case that is purported to be
owned or leased by it, including those reflected on the most recent Financial Statements delivered
by Holdings, and none of such properties and assets is subject to any Lien, except Liens permitted
under Section 8.2.



          (b) Set forth on Schedule 4.19 is a complete and accurate list of all Real Property owned or
leased by each Group Member and showing, as of the Closing Date, the current street address
(including, where applicable, county, state and other relevant jurisdictions), record owner and,
where applicable, lessee thereof.



          (c) All Permits required to have been issued or appropriate to enable all Real Property of
each Group Member to be lawfully occupied and used for all of the purposes for which they are
currently occupied and used have been lawfully issued and are in full force and effect, other than
those Permits the non-issuance or non-effectiveness of which, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.



41









 





          (d) No Group Member has received any notice, or has any knowledge, of any pending, threatened
or contemplated condemnation proceeding affecting any Real Property of any Group Member or any part
thereof, except those that, in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.



          Section 4.20 Related Documents



          (a) The execution, delivery and performance by each Loan Party of the Related Documents to
which it is a party and the consummation of the transactions contemplated thereby by such Loan
Party:




          (i) are within such Loan Party’s respective corporate, limited liability company,
partnership or other powers;




          (ii) have been duly authorized by all necessary corporate or other action, including
the consent of stockholders where required;




          (iii) do not and will not (A) contravene or violate any Loan Party’s or any of its
Subsidiaries’ respective Constituent Documents, (B) violate any other Requirement of Law
applicable to any Loan Party, or any order or decree of any Governmental Authority or
arbitrator, (C) conflict with or result in the breach of, constitute a default under, or
result in or permit the termination or acceleration of, any Contractual Obligation of any
Loan Party or any of its Subsidiaries, except for those that, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect or (D) result in the creation or
imposition of any Lien upon any property of any Loan Party or any of its Subsidiaries other
than a Lien permitted under Section 8.2; and




          (iv) do not require the consent of, authorization by, approval of, notice to, or filing
or registration with, any Governmental Authority or any other Person, other than those that
(A) will have been obtained at the Closing Date, each of which will be in full force and
effect on the Closing Date, none of which will on the Closing Date impose materially adverse
conditions upon the exercise of control by either Borrower over any of their Subsidiaries
and (B) in the aggregate, if not obtained, would not have a Material Adverse Effect.



          (b) Each of the Related Documents has been or at the Closing Date will have been duly executed
and delivered by each Loan Party party thereto and at the Closing Date will be the legal, valid and
binding obligation of each Loan Party party thereto, enforceable against such Loan Party in
accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the
enforceability of creditors’ rights generally and to general principles of equity.



          (c) None of the Related Documents has been amended or modified in any respect and no provision
therein has been waived, except in each case to the extent permitted by Section 8.12, and to the
Borrowers’ knowledge each of the representations and warranties therein are true and correct in all
material respects and no default or event that, with the giving of notice or lapse of time or both,
would be a default has occurred thereunder.



ARTICLE V




Financial Covenants




          Holdings and each Borrower agree with the Lenders and the Administrative Agent to each of the
following as long as any Obligation (other than any contingent indemnification obligation



42









 




owing by such Borrower) remains outstanding and, in each case, unless the Requisite Lenders
otherwise consent in writing:




          Section 5.1 Maximum Leverage Ratio



          Following the Conversion Event, Holdings shall maintain, on the last day of each Fiscal
Quarter, a Leverage Ratio of not more than 0.70 to 1.



          Section 5.2 [Intentionally Omitted]



          Section 5.3 Minimum Fixed Charge Coverage Ratio



          Holdings shall maintain a Fixed Charge Coverage Ratio, as determined as of the last day of
each Fiscal Quarter, of at least the minimum ratio set forth below:



	 	 	 
	Conversion Event	 	Minimum Fixed Charge Coverage Ratio
	If the Conversion Event has occurred
	 	1.10 to 1

	If the Conversion Event has not occurred
	 	1.00 to 1







          Section 5.4 [Intentionally Omitted]



          Section 5.5 Capital Expenditures



          The Borrowers shall not make or incur, or permit to be made or incurred, Growth Capex in
excess of $50,000,000 during each Fiscal Year.



ARTICLE VI




Reporting Covenants




          Holdings and each Borrower agree with the Lenders and the Administrative Agent to each of the
following, as long as any Obligation (other than any contingent indemnification obligation owing
by such Borrower) is outstanding and, in each case, unless the Requisite Lenders otherwise consent
in writing:



          Section 6.1 Financial Statements



          The Borrowers shall furnish to the Administrative Agent (with sufficient copies for each of
the Lenders) each of the following:



          (a) [Intentionally Omitted]



          (b) Quarterly Reports. Within 60 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, financial information regarding Holdings and its Subsidiaries
consisting of Consolidated unaudited balance sheets as of the close of such quarter and the related
statements of income and cash flows for such quarter and that portion of the Fiscal Year ending as
of the close of such quarter, and, for the first Fiscal Quarter ending after the one year
anniversary of the Closing Date and thereafter, setting forth in comparative form the figures for
the corresponding period in the prior year, in each case certified by a Responsible Officer of
Holdings as fairly presenting the Consolidated financial condition of Holdings and its Subsidiaries
as at the dates indicated and the results of their operations and cash flows



43









 







for the periods indicated in accordance with GAAP (subject to the absence of footnote
disclosure and normal year-end audit adjustments).



          (c) Annual Reports. Within 120 days after the end of each Fiscal Year, financial information
regarding Holdings and its Subsidiaries consisting of a Consolidated balance sheet of Holdings and
its Subsidiaries as of the end of such year and related statements of income and cash flows of
Holdings and its Subsidiaries for such Fiscal Year, all prepared in conformity with GAAP and
certified, in the case of such Consolidated Financial Statements, without qualification as to the
scope of the audit or as to Holdings being a going concern by the Holdings Accountants, together
with the report of such accounting firm stating that (i) such Financial Statements fairly present
the Consolidated financial condition of Holdings and its Subsidiaries as at the dates indicated and
the results of their operations and cash flows for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years (except for changes with which the Holdings
Accountants shall concur and that shall have been disclosed in the notes to the Financial
Statements) and (ii) the examination by the Holdings Accountants in connection with such
Consolidated Financial Statements has been made in accordance with generally accepted auditing
standards.



          (d) Compliance Certificate. Together with each delivery of any Financial Statement pursuant
to clause (b) or (c) above, a certificate of a Responsible Officer of Holdings (each, a “Compliance
Certificate”) (i) demonstrating compliance with each of the financial covenants contained in
Article V as of the last day of the fiscal period covered thereby and (ii) stating that no Default
or Event of Default has occurred and is continuing or, if a Default or an Event of Default has
occurred and is continuing, stating the nature thereof and the action that the applicable Borrower
proposes to take with respect thereto.



          (e) Business Plan. If the Convertible Loan remains outstanding after the end of the
Conversion Period, then not later than 30 days prior to the end of each Fiscal Year, and containing
substantially the types of financial information contained in the Projections, (i) the annual
business plan of Holdings and its Subsidiaries for the next succeeding Fiscal Year approved by the
Board of Directors of Holdings, and (ii) forecasts prepared by management of Holdings for each
fiscal month in the next succeeding Fiscal Year including, in each instance described in clause
(ii) above, (x) a projected year-end income statement and statement of cash flows and (y) a
statement of all of the material assumptions on which such forecasts are based.



          Section 6.2 Default Notices



          As soon as practicable, and in any event within five Business Days after a Responsible Officer
of Holdings or the Borrowers has actual knowledge of the existence of any Default, Event of Default
or other event having had a Material Adverse Effect or having any reasonable likelihood of causing
or resulting in a Material Adverse Change, the Borrowers (or after the Conversion Date, the Term
Borrower) shall give the Administrative Agent notice specifying the nature of such Default or Event
of Default or other event, including the anticipated effect thereof, which notice, if given by
telephone, shall be promptly confirmed in writing on the next Business Day.



          Section 6.3 Litigation



          Promptly after the commencement thereof, the Borrowers (or after the Conversion Date, the Term
Borrower) shall give the Administrative Agent written notice of the commencement of all actions,
suits and proceedings before any domestic or foreign Governmental Authority or arbitrator affecting
the Group Members that (i) seeks injunctive or similar relief or (ii) in the reasonable judgment



44









 







of the Borrowers, expose such Group Member that, if adversely determined, would reasonably be
expected to have a Material Adverse Effect.



          Section 6.4 Notices under Related Documents



          Promptly after the sending or filing thereof, the Borrowers (or after the Conversion Date, the
Term Borrower) shall send the Administrative Agent copies of all material notices, certificates or
reports delivered pursuant to, or in connection with, any Related Document.



          Section 6.5 Labor Relations



          Promptly after becoming aware of the same, the Borrowers (or after the Conversion Date, the
Term Borrower) shall give the Administrative Agent written notice of (a) any material labor dispute
to which any Group Member is a party, including any strikes, lockouts or other disputes relating to
any of such Person’s plants and other facilities, and (b) any Worker Adjustment and Retraining
Notification Act or related liability incurred with respect to the closing of any plant or other
facility of any such Person.



          Section 6.6 [Intentionally Omitted]



          Section 6.7 ERISA Matters



          The Borrowers (or after the Conversion Date, the Term Borrower) shall furnish the
Administrative Agent each of the following:



          (a) promptly and in any event within 30 days after any Group Member or any ERISA Affiliate
knows or has reason to know that any ERISA Event has occurred, written notice describing such
event;



          (b) promptly and in any event within 10 days after any Group Member or any ERISA Affiliate
knows or has reason to know that a request for a minimum funding waiver under Section 412 of the
Code has been filed with respect to any Title IV Plan or Multiemployer Plan, a written statement of
a Responsible Officer of Holdings describing such ERISA Event or waiver request and the action, if
any, the applicable Group Member or ERISA Affiliates propose to take with respect thereto and a
copy of any notice filed with the PBGC or the IRS pertaining thereto; and



          (c) simultaneously with the date that any Group Member or any ERISA Affiliate files a notice
of intent to terminate any Title IV Plan, if such termination would require material additional
contributions in order to be considered a standard termination within the meaning of Section
4041(b) of ERISA, a copy of each notice.



          Section 6.8 Environmental Matters



          The Borrowers (or after the Conversion Date, the Term Borrower) shall provide the
Administrative Agent promptly and in any event within 10 days after any Responsible Officer of any
Group Member learning of any violation of or liability under any Environmental Law that would
reasonably be expected to have a Material Adverse Effect.



          Section 6.9 Other Information



          The Borrower shall provide the Administrative Agent or any Lender with such other information
respecting the business, properties, condition, financial or otherwise, or operations of the




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Group Members as the Administrative Agent or such Lender through the Administrative Agent may from time to time reasonably request.




ARTICLE VII




Affirmative Covenants




          Each Borrower agrees with the Lenders and the Administrative Agent to each of the following,
as long as any Obligation (other than any contingent indemnification obligation not owing by such
Borrower) remains outstanding and, in each case, unless the Requisite Lenders otherwise consent in
writing:




          Section 7.1 Preservation of Corporate Existence, Etc.




          Each of Holdings and each Borrower shall, and shall cause each of their respective
Subsidiaries to, preserve and maintain its legal existence, except as permitted by Sections 8.4 and
8.7.




          Section 7.2 Compliance with Laws, Etc.




          Each of Holdings and each Borrower shall, and shall cause each of their respective
Subsidiaries to, comply with all applicable Requirements of Law and Contractual Obligations, except
where the failure so to comply would not, in the aggregate, reasonably have a Material Adverse
Effect.




          Section 7.3 [Intentionally Omitted]




          Section 7.4 Payment of Taxes, Etc.




          Each of Holdings and each Borrower shall, and shall cause each of their respective
Subsidiaries to, pay and discharge before the same shall become delinquent, all lawful governmental
claims, taxes, assessments, charges and levies, except (a) where contested in good faith and by
proper proceedings and for which adequate reserves have been established on the books of the
applicable Borrower or the appropriate Subsidiary in conformity with GAAP or (b) to the extent the
failure to pay and discharge would not reasonably be expected to have a Material Adverse Effect.




          Section 7.5 Maintenance of Insurance




          Each Borrower shall (a) maintain for, itself, and each Borrower shall cause to be maintained
for each Subsidiary of such Borrower, self-insurance or other insurance with responsible and
reputable insurance companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties in the same
general areas in which such Borrower or such Subsidiary operates.




          Section 7.6 Access




          Each of Holdings and each Borrower shall, and shall cause each of their respective
Subsidiaries to, from time to time permit the Administrative Agent and the Lenders, or any agents
or representatives thereof, upon reasonable prior written notice (except that during the
continuance of an Event of Default, no such notice shall be required) to (a) at the request of the
Administrative Agent or such Lender (unless an Event of Default then exists), examine and make
copies of and abstracts from the records and books of account of the Group Members, (b) visit the
properties of the Group Members and (c) discuss (provided that a representative of the Borrowers is
given the opportunity to be present for such




46









 







discussions) the affairs, finances and accounts of the any Group Member with any of its
respective officers or directors.




          Section 7.7 Keeping of Books




          Each of Holdings and each Borrower shall, and shall cause each of their respective
Subsidiaries to, keep, proper books of record and account, in which true and correct entries are
made that are sufficient to prepare financial statements required to be delivered pursuant to
Sections 6.1(b) and (c) in conformity with GAAP consistently applied.




          Section 7.8 Maintenance of Properties, Etc.




          Each Borrower shall, and shall cause each of their respective Subsidiaries to, maintain and
preserve (a) in good working order and condition all of its properties necessary in the conduct of
its business, (b) all rights, permits, licenses, approvals and privileges (including all Permits)
used or useful or necessary in the conduct of its business and (c) all registered patents,
trademarks, trade names, copyrights and service marks with respect to its business, except where
failure to so maintain and preserve the items set forth in clauses (a), (b) and (c) above would
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.




          Section 7.9 Application of Proceeds




          Each Borrower shall, and shall cause each of their respective Subsidiaries to, use the entire
amount of the proceeds of the Loans as provided in Section 4.13.




          Section 7.10 Environmental




          Each of Holdings and each Borrower shall, and shall cause each of their respective
Subsidiaries to, comply with Environmental Laws, except to the extent non-compliance would
reasonably be expected to have a Material Adverse Effect.




          Section 7.11 Conversion




          The Convertible Borrower shall pay any and all taxes and duties that may be payable in respect
of the issue or delivery of the Partnership Interests on conversion of the Convertible Loans
pursuant to Article XII; provided, however that the Borrowers shall not be required to pay any tax
or duty that may be payable in respect of income of any holder of such Partnership Interests. The
Convertible Borrower agrees that all Partnership Interests that may be delivered upon conversion of
the Convertible Loans, upon such delivery, will have been duly authorized and validly issued and
will be fully paid and nonassessable.




          Section 7.12 [Intentionally Omitted]




          Section 7.13 [Intentionally Omitted]




          Section 7.14 Hedging Contracts




          The Borrowers shall, within 90 days after the Closing Date, enter into an Interest Rate
Contract or Contracts, on terms and with counterparties reasonably satisfactory to the
Administrative Agent, so that at least 66 2/3% of the outstanding principal amount of the Loans is
fixed or hedged.




47









 








ARTICLE VIII




Negative Covenants




          Each Borrower agrees with the Lenders and the Administrative Agent to each of the following,
as long as any Obligation (other than any contingent indemnification obligation not owing by such
Borrower) remains outstanding and, in each case, unless the Requisite Lenders otherwise consent in
writing:




          Section 8.1 Indebtedness




          Neither Borrower nor Holdings shall, nor shall they permit any of their respective
Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness except for the following:




          (a) the Secured Obligations in respect thereof;




          (b) Indebtedness existing on the date of this Agreement and disclosed in writing to the
Administrative Agent prior to the date hereof;




          (c) Guaranty Obligations incurred by either Borrower in respect of Indebtedness of the
Borrowers that is otherwise permitted by this Section 8.1 (other than clauses (a) or (b), above);
provided, however, that Guaranty Obligations in respect of mortgage Indebtedness permitted by
clause (d) below shall at no time exceed $50,000,000;




          (d) Capital Lease Obligations, mortgage Indebtedness and purchase money Indebtedness incurred
by any Group Member to finance the acquisition of any assets; provided, however, that, (i) in the
case of any fixed asset, any Capital Expenditure related thereto is otherwise permitted by Section
5.6 and the aggregate outstanding principal amount of all such Capital Lease Obligations and
purchase money Indebtedness shall not exceed $10,000,000 at any time and (ii) in the case of any
mortgage Indebtedness, the proceeds from such Indebtedness not used in connection with the purchase
of property securing such mortgage Indebtedness (including related transaction costs and repayment
of any pre-existing Indebtedness secured by such property) is applied to the payment of the
Obligations as set forth in Section 2.9;




          (e) Renewals, extensions, refinancings and refundings of Indebtedness permitted by clause (b)
or (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing
or refunding on terms, taken as a whole, no less favorable to the Group Member obligated thereunder
than the Indebtedness being renewed, extended, refinanced or refunded and, if the principal amount
of such Indebtedness is increased pursuant thereto, the amount of such additional Indebtedness is
applied to the payment of the Obligations as set forth in Section 2.9;




          (f) a sale and leaseback transaction to the extent such transaction would constitute
Indebtedness and is otherwise permitted by Section 8.4(g);




          (g) Indebtedness arising from intercompany loans (i) between the Borrowers, (ii) from any
Subsidiary of either Borrower to either Borrower, (iii) from ProLogis and or any of its
Subsidiaries that is not a Subsidiary of either Borrower to (A) either Borrower; provided that such
intercompany loans are unsecured and subordinated to the Obligations of the Convertible Borrower or
the Term Borrower, as applicable, in each case in a manner satisfactory to the Administrative
Agent, or (B) to any Subsidiary of either Borrower; provided that such intercompany loans are made
for tax purposes;




48









 








          (h) Indebtedness arising under any performance or surety bond entered into in the ordinary
course of business;




          (i) Obligations under Interest Rate Contracts and swaps mandated by Section 7.14 and other
Hedging Contracts permitted under Section 8.17;




          (j) other nonrecourse Indebtedness; provided, however, that the proceeds of such Indebtedness
in excess of the amount applied to repay existing Indebtedness, (such Indebtedness, “Incremental
Indebtedness”) pursuant to this clause (j) are applied to the payment of the Obligations as set
forth in, and to the extent required by, Section 2.9;




          (k) Indebtedness incurred in connection with securitizations of mortgage Indebtedness;
provided, however, that the proceeds of such Indebtedness in excess of the amount applied to repay
existing Indebtedness securing mortgages existing on the Closing Date and to pay related
transaction costs are applied to the payment of the Obligations as set forth in, and to the extent
required by, Section 2.9; and




          (l) other Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any time
outstanding; provided, however, that the proceeds of such unsecured Indebtedness incurred pursuant
to this clause (l) are applied to the payment of the Obligations as set forth in, and to the extent
required by, Section 2.9.




          Section 8.2 Liens, Etc.




          Neither Borrower nor Holdings shall, nor shall they permit any of their respective
Subsidiaries to, create or suffer to exist, any Lien upon or with respect to any of their
respective properties or assets, whether now owned or hereafter acquired, except for the following:




          (a) Liens created pursuant to the Loan Documents;




          (b) Liens existing on the date of this Agreement and disclosed on Schedule 8.2;




          (c) Customary Permitted Liens on the assets of the Group Members;




          (d) purchase money Liens granted by any Group Member (including the interest of a lessor under
a Capital Lease and purchase money Liens to which any property is subject at the time, on or after
the date hereof, of such Group Member’s acquisition thereof) securing Indebtedness permitted under
Section 8.1(d) and limited in each case to the property purchased with the proceeds of such
purchase money Indebtedness or subject to such Capital Lease and proceeds thereof;




          (e) any Lien securing the renewal, extension, refinancing or refunding of any obligations
secured by any Lien permitted by clause (b) or (d) above or this clause (e) without any change in
the type of assets subject to such Lien and to the extent such renewal, extension, refinancing or
refunding is permitted by Section 8.1(e);




          (f) Liens in favor of lessors securing operating leases or, to the extent such transactions
create a Lien hereunder, sale and leaseback transactions, in each case to the extent such sale and
leaseback transactions are permitted hereunder;




49









 








          (g) Liens not otherwise permitted by the foregoing clauses of this Section 8.2 securing
obligations or other liabilities of any Loan Party; provided, however, that the aggregate
outstanding amount of all such obligations and liabilities shall not exceed $50,000,000 at any
time; and




          (h) Liens securing Indebtedness permitted by Section 8.1(k).




          Section 8.3 Investments




          Neither Borrower shall, nor shall they permit any of their respective Subsidiaries to, make or
maintain, directly or indirectly, any Investment except for the following:




          (a) Investments existing on the date of this Agreement and disclosed on Schedule 8.3;




          (b) Investments in cash and Cash Equivalents in the ordinary course of business;




          (c) Investments in payment intangibles, chattel paper (each as defined in the UCC) and
Accounts, notes receivable and similar items arising or acquired in the ordinary course of business
consistent with the past practice of the Group Members;




          (d) Investments received in settlement of amounts due to any Group Member effected in the
ordinary course of business;




          (e) Investments by (i) any Borrower in any other Group Member or (ii) the Convertible Borrower
in the Term Borrower;




          (f) loans or advances to employees of the Group Members in the ordinary course of business as
presently conducted other than any loans or advances that would be in violation of Section 402 of
the Sarbanes-Oxley Act; provided, however, that the aggregate principal amount of all loans and
advances permitted pursuant to this clause (f) shall not exceed $10,000,000 at any time;




          (g) Guaranty Obligations permitted by Section 8.1; and




          (h) Investments not otherwise permitted hereby; provided, however, that the aggregate
outstanding amount of all such Investments shall not exceed $50,000,000 at any time.




          Section 8.4 Sale of Assets




          Neither Borrower shall, nor shall they permit any of their respective Subsidiaries to, sell,
convey, transfer, lease or otherwise dispose of, any of their respective assets or any interest
therein (including the sale or factoring at maturity or collection of any accounts) to any Person,
or permit or suffer any other Person to acquire any interest in any of their respective assets or
issue or sell any shares of their Stock or any Stock Equivalents (any such disposition being an
“Asset Sale”), except for the following:




          (a) the sale or disposition of Cash Equivalents or Inventory, in each case in the ordinary
course of business;




          (b) the sale or disposition of Equipment that has become obsolete or is replaced in the
ordinary course of business;




50









 








          (c) issuances of Stock by (i) the Convertible Borrower or Holdings pursuant to the Syndication
Agreement (as defined in Schedule 2.6) and the corresponding provisions of the Amended Borrower
Agreement (as defined in Schedule 2.6) or the Amended Holdings Agreement (as defined in Schedule
2.6), as applicable, (ii) any Group Member that is a real estate investment trust not exceeding 1%
of such Group Member’s total outstanding Stock (on a fully diluted basis), and (iii) any other
Group Member in connection with such Group Member becoming a real estate investment trust and not
exceeding 1% of such Group Member’s total outstanding Stock (on a fully diluted basis);




          (d) assignments and licenses of intellectual property of the Group Members in the ordinary
course of business;




          (e) any Asset Sale to the Borrower or any Group Member, except to the extent prohibited by the
Pledge Agreement; and




          (f) any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided,
however, that with respect to any such Asset Sale pursuant to this clause (f) an amount equal to
all Net Cash Proceeds of such Asset Sale are applied to the payment of the Obligations as set forth
in, and to the extent required by, Section 2.9;




          (g) sale and leaseback transactions; provided, however, that the Fair Market Value of all such
Asset Sales shall not exceed $50,000,000; and




          (h) Asset Sales in connection with securitizations to the extent permitted by Section 8.1(k).




          Section 8.5 Restricted Payments




          Neither Borrower shall, nor shall they permit any of their respective Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Payment
except for the following:




          (a) Restricted Payments by any Group Member to either Borrower, any other Group Member to
Holdings or the Convertible Borrower to the Convertible Lender;




          (b) payments by either Borrower in respect of foreign, federal, state or local taxes owing by
such Borrower in respect of such Borrower and its Subsidiaries, but not greater than the amount
that would be payable by such Borrower, on a consolidated basis, if such Borrower were the
taxpayer;




          (c) Restricted Payments necessary for the Term Borrower to maintain its status as a real
estate investment trust; and




          (d) Restricted Payments to Holdings; provided, however, that, unless otherwise permitted
pursuant to clause (c) above, the Restricted Payments described in this clause (d) shall not be
permitted if an Event of Default or Default shall have occurred and be continuing at the date of
declaration or payment thereof or would result therefrom.




51









 








          Section 8.6 [Intentionally Omitted]




          Section 8.7 Restriction on Fundamental Changes




          Neither Borrower nor Holdings shall, nor shall they permit any of their respective
Subsidiaries to, except in connection with the Acquisition, (a) merge or consolidate with any
Person (other than mergers or consolidations among Group Members or in connection with Investments
permitted by Section 8.3(h); provided that in any such transaction involving a Borrower or
Holdings, such Person is the surviving entity) or (b) acquire all or substantially all of the Stock
or Stock Equivalents of any Person or substantially all of the assets of any Person or all or
substantially all of the assets constituting the business of a division, branch or other unit
operation of any Person (other than any such acquisition by a Group Member of another Group Member
or in connection with Investments permitted by Section 8.3(h).




          Section 8.8 Change in Nature of Business




          Neither Borrower nor Holdings shall, nor shall they permit any of their respective
Subsidiaries to, make any material change in the nature or conduct of its business as carried on at
the date hereof.




          Section 8.9 Transactions with Affiliates




          Neither Borrower nor Holdings shall, nor shall they permit any of their respective
Subsidiaries to, enter into any transaction of any kind with an Affiliate of the foregoing, whether
or not in the ordinary course of business; provided that the foregoing restriction shall not apply
to (a) transactions with existing equityholders of the Convertible Borrower or transactions in the
ordinary course of business, in each case, (i) on fair and reasonable terms as favorable to such
Borrower or such Subsidiary at the time in a comparable arm’s length transaction with a Person
other than an Affiliate or (ii) that comply with the requirements of the North America Security
Administrators Association’s Statement of Policy of Real Estate Investment Trusts, (b) payments to
or from such Affiliates under leases of commercial space on market terms, (c) payment of fees under
asset or property management agreements under terms and conditions available from qualified
management companies, (d) intercompany liabilities and other Investments otherwise expressly
permitted by this Agreement and (e) transactions between Holdings, the Borrowers and/or any of
their respective Subsidiaries.




          Section 8.10 Limitations on Restrictions on Subsidiary Distributions; No New Negative Pledge




          Except pursuant to the Loan Documents and any agreements governing Indebtedness permitted by
Section 8.1(b), (d), (e) or (j) (in the case of agreements permitted by clause (d), any prohibition
or limitation shall only be effective against the assets financed or leased thereby), neither
Borrower shall, nor shall they permit any of their respective Subsidiaries to, (a) agree to enter
into or suffer to exist or become effective any consensual encumbrance or restriction of any kind
on the ability of such Subsidiary to pay dividends or make any other distribution or transfer of
funds or assets or make loans or advances to or other Investments in, or pay any Indebtedness owed
to, the Borrowers or any other Subsidiary of the Borrowers or (b) enter into or suffer to exist or
become effective any agreement prohibiting or limiting the ability of the Borrowers or any
Subsidiary of the Borrowers to create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, to secure the Obligations,
including any agreement requiring any other Indebtedness or Contractual Obligation to be equally
and ratably secured with the Obligations, other than Indebtedness permitted by Section 8.1(j).




52









 








          Section 8.11 Modification of Constituent Documents




          Neither Borrower nor Holdings shall, nor shall they permit any of their respective
Subsidiaries to, change its capital structure (including in the terms of its outstanding Stock) or
otherwise amend its Constituent Documents, except for changes and amendments that do not materially
affect the rights and privileges of any Group Member and do not materially affect the interests of
the Secured Parties under the Loan Documents or in the Collateral.




          Section 8.12 Modification of Related Documents




          Neither Borrower shall, nor shall they permit any of their respective Subsidiaries to, (a)
alter, rescind, terminate, amend, supplement, waive or otherwise modify any provision of any
Related Document except to the extent the foregoing do not materially affect the rights and
privileges of any Group Member under such Related Document and that do not materially affect the
interests of the Secured Parties under the Loan Documents or in the Collateral) or (b) permit any
breach or default to exist under any Related Document or take or fail to take any action
thereunder, if to do so would reasonably be expected to have a Material Adverse Effect.




          Section 8.13 [Intentionally Omitted]




          Section 8.14 Accounting Changes; Fiscal Year




          Neither Borrower nor Holdings shall, nor shall they permit any of their respective
Subsidiaries to, change its (a) accounting treatment and reporting practices or tax reporting
treatment, except as required by GAAP or any Requirement of Law and disclosed to the Lenders and
the Administrative Agent or (b) fiscal year.




          Section 8.15 Margin Regulations




          Neither Borrower shall, nor shall they permit any of their respective Subsidiaries to, use all
or any portion of the proceeds of any credit extended hereunder to purchase or carry margin stock
(within the meaning of Regulation U of the Federal Reserve Board) in contravention of Regulation U
of the Federal Reserve Board.




          Section 8.16 [Intentionally Omitted]




          Section 8.17 No Speculative Transactions




          Neither Borrower nor Holdings shall, nor shall they permit any of their respective
Subsidiaries to, engage in any speculative transaction or in any transaction involving Hedging
Contracts except as required by Section 7.14 or for the sole purpose of hedging in the normal
course of business and consistent with industry practices.




          Section 8.18 Compliance with ERISA




          Neither Borrower nor Holdings shall, nor shall they permit any of their respective
Subsidiaries to, cause or permit to occur, (a) an event that could result in the imposition of a
Lien under Section 412 of the Code or Section 302 or 4068 of ERISA or (b) ERISA Events that would
reasonably be expected to have a Material Adverse Effect in the aggregate.




53









 








ARTICLE IX




Events Of Default




          Section 9.1 Events of Default




          Each of the following events shall be an Event of Default:




          (a) either Borrower shall fail to pay any principal of any Loan owed by it when the same
becomes due and payable; or




          (b) either Borrower shall fail to pay any interest on any Loan owed by it, any fee under any
of the Loan Documents or any other Obligation (other than any Obligation referred to in clause (a)
above) and such non-payment continues for a period of three Business Days after the due date
therefor; or




          (c) any representation or warranty made or deemed made by any Loan Party in any Loan Document
or by any Loan Party (or any of its officers) in connection with any Loan Document shall prove to
have been incorrect in any material respect when made or deemed made; or




          (d) any Loan Party shall fail to perform or observe (i) any term, covenant or agreement
contained in Article V, Section 6.1, 6.2, 7.1 (with respect to Holdings or any Borrower), 7.6, 7.9,
or Article VIII or (ii) any other term, covenant or agreement contained in this Agreement or in any
other Loan Document if such failure under this clause (ii) shall remain unremedied for 30 days
after the earlier of (A) the date on which a Responsible Officer of either Borrower becomes aware
of such failure and (B) the date on which written notice thereof shall have been given to either
Borrower by the Administrative Agent or any Lender; provided that if such failure is of such a
nature that can be cured but cannot with reasonable effort be completely cured within 30 days, then
such 30-day period shall be extended for such additional period of time (not exceeding 60
additional days) as may be reasonably necessary to cure such failure so long as Borrowers commence
such cure within such 60-day period and diligently prosecutes same until completion; or




          (e) (i) (A) any Group Member shall fail to make any payment when due (after giving effect to
any applicable grace periods) in respect of any Indebtedness of any Group Member (other than the
Obligations) or any Guaranty Obligation in respect of Indebtedness of any other Person, and, in
each case, such failure relates to recourse Indebtedness having a principal amount of $50,000,000
or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), or (B) any acceleration occurs with respect to any nonrecourse
Indebtedness of any Group Member (other than the Obligations) having a principal amount of
$100,000,000 or more or any Guaranty Obligation in respect of such Indebtedness or (ii) any such
Indebtedness shall become or be declared to be due and payable, or be required to be prepaid or
repurchased (other than by a regularly scheduled required prepayment), prior to the stated maturity
thereof; or




          (f) (i) any Group Member shall generally not pay its debts as such debts become due, shall
admit in writing its inability to pay its debts generally or shall make a general assignment for
the benefit of creditors, (ii) any proceeding shall be instituted by or against any Group Member
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it or its debts,
under any Requirement of Law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a custodian, receiver,
trustee or other similar official for it or for any substantial part

54









 








of its property; provided, however, that, in the case of any such proceedings instituted
against Group Member (but not instituted by a Group Member) either such proceedings shall remain
undismissed or unstayed for a period of 60 days or more or any action sought in such proceedings
shall occur or (iii) any Group Member shall take any corporate action to authorize any action set
forth in clauses (i) and (ii) above; or




          (g) one or more judgments or orders (or other similar process) for the payment of money
involving an aggregate amount in excess of $25,000,000, to the extent not covered by insurance,
shall be rendered against one or more of any Loan Party and its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon such judgment or order or
(ii) there shall be any period of 20 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or




          (h) an ERISA Event shall occur and the amount of all liabilities and deficiencies resulting
therefrom, whether or not assessed, exceeds $25,000,000 in the aggregate; or




          (i) any provision of any Loan Document after delivery thereof shall for any reason (other than
as expressly permitted hereunder or thereunder) fail or cease to be valid and binding on, or
enforceable against, any Loan Party party thereto, or any Loan Party shall so state in writing; or




          (j) any Collateral Document shall for any reason fail or cease to create a valid and
enforceable Lien on any Collateral purported to be covered thereby or, except as permitted by the
Loan Documents, such Lien shall fail or cease to be a perfected and first priority Lien, or any
Loan Party shall so state in writing; or




          (k) there shall occur any Change of Control; or




          (l) there occurs under any Hedging Contract an Early Termination Event (as defined therein)
resulting from (i) any event of default under such Hedging Contract as to which any Group Member is
the Defaulting Party (as defined in such Hedging Contract) or (ii) any Termination Event (as so
defined) under such Hedging Contract to which any Group Member is an Affected Party (as so defined)
and, in either event, the Swap Termination Value owed by any Group Member as a result thereof is
greater than $50,000,000.




          Section 9.2 Remedies




          During the continuance of any Event of Default, the Administrative Agent (a) may, and, at the
request of the Requisite Lenders, shall, by notice to the Borrowers (or after the Conversion Date,
the Term Borrower) declare that all or any portion of the Commitments be terminated, whereupon the
obligation of each Lender to make any Loan shall immediately terminate and (b) may and, at the
request of the Requisite Lenders, shall, by notice to the Borrowers (or after the Conversion Date,
the Term Borrower), declare the Loans, all interest thereon and all other amounts and Obligations
payable under this Agreement to be forthwith due and payable, whereupon the Loans, all such
interest and other Obligations shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly waived by each
Borrower; provided, however, that upon the occurrence of the Events of Default specified in Section
9.1(f), (x) the Commitments of each Lender to make Loans shall each automatically be terminated and
(y) the Loans, all such interest and all such amounts and Obligations shall automatically become
and be due and payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by each Borrower. In addition to the remedies set forth above,
the Administrative Agent may exercise

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any remedies provided for by the Collateral Documents in accordance with the terms thereof or
any other remedies provided by applicable law.




          Section 9.3 [Intentionally Omitted]




          Section 9.4 Rescission




          If at any time after termination of the Commitments or acceleration of the maturity of the
Loans, each Borrower shall pay all arrears of interest and all payments on account of principal of
the applicable Loans that shall have become due otherwise than by acceleration (with interest on
principal and, to the extent permitted by law, on overdue interest, at the rates specified herein)
and all Events of Default and Defaults (other than non-payment of principal of and accrued interest
on the Loans due and payable solely by virtue of acceleration) shall be remedied or waived pursuant
to Section 11.1, then upon the written consent of the Requisite Lenders and written notice to the
Borrowers (or after the Conversion Date, the Term Borrower), the termination of the Commitments or
the acceleration and their consequences may be rescinded and annulled; provided, however, that such
action shall not affect any subsequent Event of Default or Default or impair any right or remedy
consequent thereon. The provisions of the preceding sentence are intended merely to bind the
Lenders to a decision that may be made at the election of the Requisite Lenders, and such
provisions are not intended to benefit either Borrower and do not give either Borrower the right to
require the Lenders to rescind or annul any acceleration hereunder, even if the conditions set
forth herein are met.




ARTICLE X




The Administrative Agent




          Section 10.1 Authorization and Action




          (a) Each Lender hereby appoints Citicorp as the Administrative Agent hereunder and each Lender
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 under such agreements and to exercise such powers as are reasonably incidental thereto.
Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute
and deliver, and to perform its obligations under, each of the Loan Documents to which the
Administrative Agent is a party, to exercise all rights, powers and remedies that the
Administrative Agent may have under such Loan Documents and, in the case of the Collateral
Documents, to act as agent for the Lenders and the other Secured Parties under such Collateral
Documents.




          (b) As to any matters not expressly provided for by this Agreement and the other Loan
Documents (including enforcement or collection), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from acting) upon the instructions of the
Requisite Lenders, and such instructions shall be binding upon all Lenders; provided, however, that
the Administrative Agent shall not be required to take any action that (i) the Administrative Agent
in good faith believes exposes it to personal liability unless the Administrative Agent receives an
indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary
to this Agreement or applicable law. The Administrative Agent agrees to give to each Lender prompt
notice of each notice given to it by any Loan Party pursuant to the terms of this Agreement or the
other Loan Documents.




          (c) In performing its functions and duties hereunder and under the other Loan Documents, the
Administrative Agent is acting solely on behalf of the Lenders except to the limited

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extent provided in Section 2.7(b), and its duties are entirely administrative in nature. The
Administrative Agent does not assume and shall not be deemed to have assumed any obligation other
than as expressly set forth herein and in the other Loan Documents or any other relationship as the
agent, fiduciary or trustee of or for any Lender or holder of any other Obligation. The
Administrative Agent may perform any of its duties under any Loan Document by or through its agents
or employees.




          (d) In the event that Citicorp or any of its Affiliates is or becomes an indenture trustee
under the Trust Indenture Act of 1939 (as amended, the “Trust Indenture Act”) in respect of any
securities issued or guaranteed by any Loan Party, the parties hereto acknowledge and agree that
any payment or property received in satisfaction of or in respect of any Obligation of such Loan
Party hereunder or under any other Loan Document by or on behalf of Citicorp in its capacity as the
Administrative Agent for the benefit of any Loan Party under any Loan Document (other than Citicorp
or an Affiliate of Citicorp) and which is applied in accordance with the Loan Documents is exempt
from the requirements of Section 311 of the Trust Indenture Act pursuant to Section 311(b)(3) of
the Trust Indenture Act.




          (e) The Arranger shall have no obligations or duties whatsoever in such capacity under this
Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such
capacity.




          Section 10.2 Administrative Agent’s Reliance, Etc.




          None of the Administrative Agent, any of its Affiliates or any of their respective directors,
officers, agents or employees shall be liable for any action taken or omitted to be taken by it,
him, her or them under or in connection with this Agreement or the other Loan Documents, except for
its, his, her or their own gross negligence or willful misconduct. Without limiting the foregoing,
the Administrative Agent (a) may treat the payee of any Note as its holder until such Note has been
assigned in accordance with Section 11.2(e), (b) may rely on the Register to the extent set forth
in Section 2.6(b), (c) may consult with legal counsel (including counsel to the Borrowers or any
other Group Member), independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts, (d) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements, warranties or representations
made by or on behalf of any Group Member in or in connection with this Agreement or any other Loan
Document, (e) shall not have any duty to ascertain or to inquire either as to the performance or
observance of any term, covenant or condition of this Agreement or any other Loan Document, as to
the financial condition of any Loan Party or as to the existence or possible existence of any
Default or Event of Default, (f) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the attachment,
perfection or priority of any Lien created or purported to be created under or in connection with,
this Agreement, any other Loan Document or any other instrument or document furnished pursuant
hereto or thereto and (g) shall incur no liability under or in respect of this Agreement or any
other Loan Document by acting upon any notice, consent, certificate or other instrument or writing
(which writing may be a telecopy or electronic mail) or any telephone message believed by it to be
genuine and signed or sent by the proper party or parties.




          Section 10.3 Posting of Approved Electronic Communications




          (a) Each of the Lenders and each Borrower agree, and each Borrower shall cause each Group
Member to agree, that the Administrative Agent may, but shall not be obligated to, make the
Approved Electronic Communications available to the Lenders by posting such Approved Electronic

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Communications on IntraLinksTM or a substantially similar electronic platform chosen by the
Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”).




          (b) Although the Approved Electronic Platform and its primary web portal are secured with
generally-applicable security procedures and policies implemented or modified by the Administrative
Agent from time to time (including, as of the Closing Date, a dual firewall and a User ID/Password
Authorization System) and the Approved Electronic Platform is secured through a
single-user-per-deal authorization method whereby each user may access the Approved Electronic
Platform only on a deal-by-deal basis, each of the Lenders and each Borrower acknowledges and
agrees, and each Borrower shall cause each Group Member to acknowledge and agree, that the
distribution of material through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution. In consideration for the
convenience and other benefits afforded by such distribution and for the other consideration
provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the
Lenders and each Borrower hereby approves, and each Borrower shall cause each Group Member to
approve, distribution of the Approved Electronic Communications through the Approved Electronic
Platform and understands and assumes, and each Borrower shall cause each Group Member to understand
and assume, the risks of such distribution.




          (c) The Approved Electronic Platform and the Approved Electronic Communications are provided
“as is” and “as available”. None of the Administrative Agent or any of its Affiliates or any of
their respective officers, directors, employees, agents, advisors or representatives (the “Agent
Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic
Communications or the Approved Electronic Platform and each expressly disclaims liability for
errors or omissions in the Approved Electronic Platform and the Approved Electronic Communications.
No warranty of any kind, express, implied or statutory, including any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or
other code defects, is made by the Agent Affiliates in connection with the Approved Electronic
Platform or the Approved Electronic Communications.




          (d) Each of the Lenders and each Borrower agree, and each Borrower shall cause each Group
Member to agree, that the Administrative Agent may, but (except as may be required by applicable
law) shall not be obligated to, store the Approved Electronic Communications on the Approved
Electronic Platform in accordance with the Administrative Agent’s generally-applicable document
retention procedures and policies.




          Section 10.4 The Administrative Agent Individually




          With respect to its Ratable Portion, Citicorp shall have and may exercise the same rights and
powers hereunder and is subject to the same obligations and liabilities as and to the extent set
forth herein for any other Lender. The terms “Lenders”, “Requisite Lenders”, “Term Lenders”,
“Convertible Lenders”, and any similar terms shall, unless the context clearly otherwise indicates,
include the Administrative Agent in its individual capacity as a Lender, Term Lender, Convertible
Lender, Requisite Term Lender, Requisite Convertible Lender or as one of the Requisite Lenders.
Citicorp and its Affiliates may accept deposits from, lend money to, and generally engage in any
kind of banking, trust or other business with, any Loan Party as if Citicorp were not acting as the
Administrative Agent.




          Section 10.5 Lender Credit Decision




          Each Lender acknowledges that it shall, independently and without reliance upon the
Administrative Agent or any other Lender, conduct its own independent investigation of the
financial condition and affairs of each Borrower and each other Loan Party in connection with the
making and

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continuance of the Loans. Each Lender also acknowledges that it shall, independently and
without reliance upon the Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and other Loan Documents. Except for the
documents expressly required by any Loan Document to be transmitted by the Administrative Agent to
the Lenders, the Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects, operations,
property, financial or other condition or creditworthiness of any Loan Party or any Affiliate of
any Loan Party that may come into the possession of the Administrative Agent or any Affiliate
thereof or any employee or agent of any of the foregoing.




          Section 10.6 Indemnification




          Each Lender agrees to indemnify the Administrative Agent and each of its Affiliates, and each
of their respective directors, officers, employees, agents and advisors (to the extent not
reimbursed by the Borrowers), from and against such Lender’s aggregate Ratable Portion of any and
all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements (including fees, expenses and disbursements of financial and legal
advisors) of any kind or nature whatsoever that may be imposed on, incurred by, or asserted
against, the Administrative Agent or any of its Affiliates, directors, officers, employees, agents
and advisors in any way relating to or arising out of this Agreement or the other Loan Documents or
any action taken or omitted by the Administrative Agent under this Agreement or the other Loan
Documents; provided, however, that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent’s or such Affiliate’s gross negligence or
willful misconduct. Without limiting the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including fees, expenses and disbursements of financial and legal advisors) incurred by the
Administrative Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of its rights or responsibilities under, this Agreement
or the other Loan Documents, to the extent that the Administrative Agent is not reimbursed for such
expenses by each Borrower or another Loan Party.




          Section 10.7 Successor Administrative Agent




          The Administrative Agent may resign at any time by giving written notice thereof to the
Lenders and the Borrowers (or after the Conversion Date, the Term Borrower). Upon any such
resignation, the Requisite Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the Requisite Lenders,
and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s
giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, selected from among the Lenders. In either
case, such appointment shall be subject to the prior written approval of the Borrowers (or after
the Conversion Date, the Term Borrower) (which approval may not be unreasonably withheld and shall
not be required upon the occurrence and during the continuance of an Event of Default). Upon the
acceptance of any appointment as Administrative Agent by a successor Administrative Agent, such
successor Administrative Agent shall succeed to, and become vested with, all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement and the other Loan
Documents. Prior to any retiring Administrative Agent’s resignation hereunder as Administrative
Agent, the retiring Administrative Agent shall take such action as may be reasonably necessary to
assign to the successor Administrative Agent its rights as Administrative Agent under the Loan
Documents. After such resignation, the retiring Administrative

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Agent shall continue to have the benefit of this Article X as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement and the other Loan
Documents.




          Section 10.8 Concerning the Collateral and the Collateral Documents




          (a) Each Lender agrees that any action taken by the Administrative Agent or the Requisite
Lenders (or, where required by the express terms of this Agreement, a greater proportion of the
Lenders) in accordance with the provisions of this Agreement or of the other Loan Documents, and
the exercise by the Administrative Agent or the Requisite Lenders (or, where so required, such
greater proportion) of the powers set forth herein or therein, together with such other powers as
are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders and
other Secured Parties. Without limiting the generality of the foregoing, the Administrative Agent
shall have the sole and exclusive right and authority to (i) act as the disbursing and collecting
agent for the Lenders with respect to all payments and collections arising in connection herewith
and with the Collateral Documents, (ii) execute and deliver each Collateral Document and accept
delivery of each such agreement delivered by any Group Member, (iii) act as collateral agent for
the Lenders and the other Secured Parties for purposes of the perfection of all security interests
and Liens created by such agreements and all other purposes stated therein, provided, however, that
the Administrative Agent hereby appoints, authorizes and directs each Lender to act as collateral
sub-agent for the Administrative Agent, the Lenders for purposes of the perfection of all security
interests and Liens with respect to the Collateral, (iv) manage, supervise and otherwise deal with
the Collateral, (v) take such action as is necessary or desirable to maintain the perfection and
priority of the security interests and Liens created or purported to be created by the Collateral
Documents and (vi) except as may be otherwise specifically restricted by the terms hereof or of any
other Loan Document, exercise all remedies given to the Administrative Agent, the Lenders and the
other Secured Parties with respect to the Collateral under the Loan Documents relating thereto,
applicable law or otherwise.




          (b) Each of the Lenders hereby consents to the release and hereby directs, in accordance with
the terms hereof, the Administrative Agent to release (or, in the case of clause (ii) below,
release or subordinate as reasonably requested by either Borrower) any Lien held by the
Administrative Agent for the benefit of the Lenders against any of the following:





          (i) all of the Collateral and all Loan Parties, upon termination of the Commitments and
payment and satisfaction in full of all Loans and all other Obligations that the
Administrative Agent has been notified in writing are then due and payable;




          (ii) any assets that are subject to a Lien permitted by Section 8.2(d) or (e); and




          (iii) any part of the Collateral sold or disposed of by a Loan Party if such sale or
disposition is permitted by this Agreement (or permitted pursuant to a waiver of or consent
to a transaction otherwise prohibited by this Agreement).


Each of the Lenders hereby directs the Administrative Agent to execute and deliver or file such
termination and partial release statements and do such other things as are necessary to release
Liens to be released pursuant to this Section 10.8 promptly upon the effectiveness of any such
release.




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ARTICLE XI




Miscellaneous




          Section 11.1 Amendments, Waivers, Etc.




          (a) No amendment or waiver of any provision of this Agreement or any other Loan Document nor
consent to any departure by any Loan Party therefrom shall in any event be effective unless the
same shall be in writing and (x) in the case of any such waiver or consent, signed by the Requisite
Lenders (or by the Administrative Agent with the consent of the Requisite Lenders) and (y) in the
case of any other amendment, by the Requisite Lenders (or by the Administrative Agent with the
consent of the Requisite Lenders) and the Borrowers (or after the Conversion Date, the Term
Borrower), and then any such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by each Lender directly affected thereby, in addition to the
Requisite Lenders (or the Administrative Agent with the consent thereof), do any of the following:





          (i) waive any condition specified in Section 3.1, except with respect to a condition
based upon another provision hereof, the waiver of which requires only the concurrence of
the Requisite Lenders and, in the case of the conditions specified in Section 3.1, subject
to the provisions of Section 3.3;




          (ii) increase the Commitment of such Lender or subject such Lender to any additional
obligation;




          (iii) extend the scheduled final maturity of any Loan owing to such Lender, or waive,
reduce or postpone any scheduled date fixed for the payment or reduction of principal or
interest of any such Loan or fees owing to such Lender (it being understood that Section 2.9
does not provide for scheduled dates fixed for payment) or for the reduction of such
Lender’s Commitment;




          (iv) reduce, or release either Borrower from its obligations to repay, the principal
amount of any Loan owing to such Lender (other than by the payment or prepayment thereof);




          (v) reduce the rate of interest on any Loan outstanding and owing to such Lender or any
fee payable hereunder to such Lender;




          (vi) expressly subordinate any of the Secured Obligations or any Liens securing the
Secured Obligations except to the extent permitted by Section 10.8(b);




          (vii) postpone any scheduled date fixed for payment of interest or fees owing to such
Lender or waive any such payment;




          (viii) change the aggregate Ratable Portions of Lenders required for any or all Lenders
to take any action hereunder;




          (ix) release all or substantially all of the Collateral except as provided in Section
10.8(b) or release either Borrower from its payment obligation to such Lender under this
Agreement or the Notes owing to such Lender (if any); or



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          (x) amend Section 10.8(b), Section 11.7, this Section 11.1 or definition of the terms
“Requisite Lenders,” or “Ratable Portion”;


and provided, further, that (x) any modification of the application of payments to the Loans
pursuant to Section 2.9 shall require the consent of the Requisite Lenders, (y) no amendment,
waiver or consent shall, unless in writing and signed by any Special Purpose Vehicle that has been
granted an option pursuant to Section 11.2(e), affect the grant or nature of such option or the
right or duties of such Special Purpose Vehicle hereunder and (y) no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the Administrative Agent under this
Agreement or the other Loan Documents; and provided, further, that the Administrative Agent may,
with the consent of the Borrowers (or after the Conversion Date, the Term Borrower), amend, modify
or supplement this Agreement to cure any ambiguity, omission, defect or inconsistency, so long as
such amendment, modification or supplement does not adversely affect the rights of any Lender.




          (b) The Administrative Agent may, but shall have no obligation to, with the written
concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such
Lender. Any waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on either Borrower in any case
shall entitle either Borrower to any other or further notice or demand in similar or other
circumstances.




          (c) If, in connection with any proposed amendment, modification, waiver or termination
requiring the consent of all Lenders, the consent of Requisite Lenders is obtained but the consent
of any Lender whose consent is required is not obtained (any such Lender whose consent is not
obtained as described in this Section 11.1 being referred to as a “Non-Consenting Lender”), then,
as long as the Lender acting as the Administrative Agent is not a Non-Consenting Lender, at the
Borrowers’ (or after the Conversion Date, the Term Borrower’s) request, an Eligible Assignee
acceptable to the Administrative Agent shall have the right with the Administrative Agent’s consent
(such consent not to be unreasonably withheld or delayed) to purchase from such Non-Consenting
Lender, and such Non-Consenting Lender agrees that it shall, upon the Administrative Agent’s
request, sell and assign to the Lender acting as the Administrative Agent or such Eligible
Assignee, all of the Loans of such Non-Consenting Lender if such Non-Consenting Lender is a Lender,
in each case for an amount equal to the principal balance of all Loans, held by the Non-Consenting
Lender and all accrued and unpaid interest and fees with respect thereto through the date of sale;
provided, however, that such purchase and sale shall be recorded in the Register maintained by the
Administrative Agent and not be effective until (x) the Administrative Agent shall have received
from such Eligible Assignee an agreement in form and substance satisfactory to the Administrative
Agent and the Borrowers (or after the Conversion Date, the Term Borrower) whereby such Eligible
Assignee shall agree to be bound by the terms hereof and (y) such Non-Consenting Lender shall have
received payments of all Loans held by it and all accrued and unpaid interest and fees with respect
thereto through the date of the sale. Each Lender agrees that, if it becomes a Non-Consenting
Lender, it shall execute and deliver to the Administrative Agent an Assignment an Acceptance to
evidence such sale and purchase and shall deliver to the Administrative Agent any Note (if the
assigning Lender’s Loans are evidenced by Notes) subject to such Assignment and Acceptance;
provided, however, that the failure of any Non-Consenting Lender to execute an Assignment and
Acceptance shall not render such sale and purchase (and the corresponding assignment) invalid and
such assignment shall be recorded in the Register.




          Section 11.2 Assignments and Participations




          (a) Each Lender may sell, transfer, negotiate or assign to one or more Eligible Assignees all
or a portion of its rights and obligations hereunder (including all of its rights and obligations

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with respect to the Loans, but excluding any rights and obligations with respect to any
Convertible Loan during the Conversion Period unless a Default or an Event of Default has occurred
and is continuing); provided, however, that (i) if any such assignment shall be of the assigning
Lender’s Term Loans and Commitment, such assignment shall cover the same percentage of such
Lender’s Loans and Commitment, (ii) the aggregate amount being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event (if less than the Assignor’s entire interest) be less than
$5,000,000, except, in either case, (A) with the consent of the Borrower under the applicable
Facility (or after the Conversion Date, the Term Borrower) and the Administrative Agent or (B) if
such assignment is being made to a Lender or an Affiliate or Approved Fund of such Lender, and
(iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an
Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent of
the Administrative Agent and the Borrowers (or after the Conversion Date, the Term Borrower) (which
consents shall not be unreasonably withheld or delayed); and provided, further, that,
notwithstanding any other provision of this Section 11.2, the consent of the Borrowers (or after
the Conversion Date, the Term Borrower) shall not be required (x) for any assignment occurring when
any Event of Default shall have occurred and be continuing and (y) for any assignment by any
Affiliate of the Administrative Agent made within 15 Business Days after the Closing Date of its
Commitments held on the Closing Date.




          (b) The parties to each such assignment shall execute and deliver to the Administrative Agent,
for its acceptance and recording in the Register, an Assignment and Acceptance, together with any
Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. Upon
the execution, delivery, acceptance and recording in the Register of any Assignment and Acceptance
and, other than in respect of assignments made pursuant to Section 2.17 and Section 11.1(c), the
receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500
from and after the effective date specified in such Assignment and Acceptance, (i) the assignee
thereunder shall become a party hereto and, to the extent that rights and obligations under the
Loan Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have
the rights and obligations of a Lender, and (ii) the Notes (if any) corresponding to the Loans
assigned thereby shall be transferred to such assignee by notation in the Register and (iii) the
assignor thereunder shall, to the extent that rights and obligations under this Agreement have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those
surviving the payment in full of the Obligations) and be released from its obligations under the
Loan Documents, other than those relating to events or circumstances occurring prior to such
assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease
to be a party hereto).




          (c) The Administrative Agent shall maintain at its address referred to in Section 11.8 a copy
of each Assignment and Acceptance delivered to and accepted by it and shall record in the Register
the names and addresses of the Lenders and the principal amount of the Loans owing to each Lender
from time to time and the Commitments of each Lender. Any assignment pursuant to this Section 11.2
shall not be effective until such assignment is recorded in the Register.




          (d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an
assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed, (i)
accept such Assignment and Acceptance, (ii) record or cause to be recorded the information
contained therein in the Register and (iii) give prompt notice thereof to the Borrowers (or after
the Conversion Date, the Term Borrower). Within five Business Days after its receipt of such
notice, such Borrower, at its own expense, shall, if requested by such assignee, execute and
deliver to the Administrative Agent new Notes to the order of such assignee in an amount equal to
the Commitments and Loans assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has

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surrendered any Note for exchange in connection with the assignment and has retained
Commitments or Loans hereunder, new Notes to the order of the assigning Lender in an amount equal
to the Commitments and Loans retained by it hereunder. Such new Notes shall be dated the same date
as the surrendered Notes and be in substantially the form of Exhibit B-1 or Exhibit B-2, as
applicable.




          (e) In addition to the other assignment rights provided in this Section 11.2, each Lender may
do each of the following:





          (i) grant to a Special Purpose Vehicle the option to make all or any part of any Loan
that such Lender would otherwise be required to make hereunder and the exercise of such
option by any such Special Purpose Vehicle and the making of Loans pursuant thereto shall
satisfy (once and to the extent that such Loans are made) the obligation of such Lender to
make such Loans thereunder; provided, however, that (x) nothing herein shall constitute a
commitment or an offer to commit by such a Special Purpose Vehicle to make Loans hereunder
and no such Special Purpose Vehicle shall be liable for any indemnity or other Obligation
(other than the making of Loans for which such Special Purpose Vehicle shall have exercised
an option, and then only in accordance with the relevant option agreement) and (y) such
Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall
remain responsible to the other parties for the performance of its obligations under the
terms of this Agreement and shall remain the holder of the Obligations for all purposes
hereunder; and




          (ii) assign, as collateral or otherwise, any of its rights under this Agreement,
whether now owned or hereafter acquired (including rights to payments of principal or
interest on the Loans), without notice to or consent of the Administrative Agent or either
Borrower, any Federal Reserve Bank (pursuant to Regulation A of the Federal Reserve Board).


Each party hereto acknowledges and agrees that, prior to the date that is one year and one day
after the payment in full of all outstanding commercial paper or other senior debt of any such
Special Purpose Vehicle, such party shall not institute against, or join any other Person in
instituting against, any Special Purpose Vehicle that has been granted an option pursuant to this
clause (e) any bankruptcy, reorganization, insolvency or liquidation proceeding (such agreement
shall survive the payment in full of the Obligations). The terms of the designation of, or
assignment to, such Special Purpose Vehicle shall not restrict such Lender’s ability to, or grant
such Special Purpose Vehicle the right to, consent to any amendment or waiver to this Agreement or
any other Loan Document or to the departure by the Borrowers from any provision of this Agreement
or any other Loan Document without the consent of such Special Purpose Vehicle except, as long as
the Administrative Agent and the Lenders and other Secured Parties shall continue to, and shall be
entitled to continue to, deal solely and directly with such Lender in connection with such Lender’s
obligations under this Agreement, to the extent any such consent would reduce the principal amount
of, or the rate of interest on, any Obligations, amend this clause (e) or postpone any scheduled
date of payment of such principal or interest. Each Special Purpose Vehicle shall be entitled to
the benefits of Sections 2.15 and 2.16 and of 2.14(d) as if it were such Lender; provided,
however, that anything herein to the contrary notwithstanding, no Borrower shall, at any time, be
obligated to make under Section 2.15, 2.16 or 2.14(d) to any such Special Purpose Vehicle and any
such Lender any payment in excess of the amount either Borrower would have been obligated to pay to
such Lender in respect of such interest if such Special Purpose Vehicle had not been assigned the
rights of such Lender hereunder; and provided, further, that such Special Purpose Vehicle shall
have no direct right to enforce any of the terms of this Agreement against either Borrower, the
Administrative Agent or the other Lenders.




          (f) Each Lender may sell participations to one or more Persons in or to all or a portion of
its rights and obligations under the Loan Documents (including all its rights and obligations

64









 








with respect to the Loans). The terms of such participation shall not, in any event, require
the participant’s consent to any amendments, waivers or other modifications of any provision of any
Loan Documents, the consent to any departure by any Loan Party therefrom, or to the exercising or
refraining from exercising any powers or rights such Lender may have under or in respect of the
Loan Documents (including the right to enforce the obligations of the Loan Parties), except if any
such amendment, waiver or other modification or consent would (i) reduce the amount, or postpone
any date fixed for, any amount (whether of principal, interest or fees) payable to such participant
under the Loan Documents, to which such participant would otherwise be entitled under such
participation or (ii) result in the release of all or substantially all of the Collateral other
than in accordance with Section 10.8(b). In the event of the sale of any participation by any
Lender, (w) such Lender’s obligations under the Loan Documents shall remain unchanged, (x) such
Lender shall remain solely responsible to the other parties for the performance of such
obligations, (y) such Lender shall remain the holder of such Obligations for all purposes of this
Agreement and (z) the Borrowers, the Administrative Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. Each participant shall be entitled to the benefits of Sections 2.15 and 2.16
and of 2.14(d) as if it were a Lender; provided, however, that anything herein to the contrary
notwithstanding, the Borrowers shall not, at any time, be obligated to make under Section 2.15,
2.16 or 2.14(d) to the participants in the rights and obligations of any Lender (together with such
Lender) any payment in excess of the amount the Borrowers would have been obligated to pay to such
Lender in respect of such interest had such participation not been sold and provided, further, that
such participant in the rights and obligations of such Lender shall have no direct right to enforce
any of the terms of this Agreement against the Borrowers, the Administrative Agent or the other
Lenders.




          Section 11.3 Costs and Expenses




          (a) Each Borrower agrees upon demand to pay, or reimburse the Administrative Agent for, all of
the Administrative Agent’s reasonable and documented out-of-pocket costs and expenses (including
the reasonable and documented fees, expenses and disbursements of the Administrative Agent’s
counsel, Weil, Gotshal & Manges LLP) incurred by the Administrative Agent in connection with any of
the following: (i) the preparation, negotiation or execution of any Loan Document, (ii) the
preparation, negotiation, execution or interpretation of this Agreement (including the satisfaction
or attempted satisfaction of any condition set forth in Article III), any Loan Document or any
proposal letter or commitment letter issued in connection therewith, or the making of the Loans
hereunder, (iii) the creation, perfection or protection of the Liens under any Loan Document
(including any reasonable and documented fees, disbursements and expenses for local counsel in
various jurisdictions), (iv) the ongoing administration of this Agreement and the Loans, including
consultation with attorneys in connection therewith and with respect to the Administrative Agent’s
rights and responsibilities hereunder and under the other Loan Documents, (v) the protection,
collection or enforcement of any Obligation or the enforcement of any Loan Document, (vi) the
commencement, defense or intervention in any court proceeding relating in any way to the
Obligations, any Loan Party, any of the Borrowers’ Subsidiaries, the Acquisition, the Related
Documents, this Agreement or any other Loan Document, (vii) the response to, and preparation for,
any subpoena or request for document production with which the Administrative Agent is served or
deposition or other proceeding in which the Administrative Agent is called to testify, in each
case, relating in any way to the Obligations, any Loan Party, any of the Borrowers’ Subsidiaries,
the Acquisition, the Related Documents, this Agreement or any other Loan Document or (viii) any
amendment, consent, waiver, assignment, restatement, or supplement to any Loan Document or the
preparation, negotiation and execution of the same; provided that with respect to the costs and
expenses set forth in this clause (a) in connection with the Term Loan, the Administrative Agent
shall not seek reimbursement for such costs and expenses in excess of $300,000.




65









 








          (b) Each Borrower further agrees to pay or reimburse the Administrative Agent and each of the
Lenders upon demand for all out-of-pocket costs and expenses, including reasonable and documented
attorneys’ fees, incurred by the Administrative Agent, such Lenders in connection with any of the
following: (i) in enforcing any Loan Document or Obligation or any security therefor or exercising
or enforcing any other right or remedy available by reason of an Event of Default and (ii) in
connection with any refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a “work-out” or in any insolvency or bankruptcy proceeding.




          Section 11.4 Indemnities




          (a) Each Borrower agrees to indemnify and hold harmless the Administrative Agent, each Lender
and each of their respective Affiliates, and each of the directors, officers, employees, agents,
trustees, representatives, attorneys, consultants and advisors of or to any of the foregoing
(including those retained in connection with the satisfaction or attempted satisfaction of any
condition set forth in Article III (each such Person being an “Indemnitee”) from and against any
and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits,
costs, disbursements and expenses, joint or several, of any kind or nature (including fees,
disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be
imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out
of any investigation, litigation or proceeding, whether or not such investigation, litigation or
proceeding is brought by any such indemnitee or any of its directors, security holders or creditors
or any such Indemnitee, director, security holder or creditor is a party thereto, whether direct,
indirect, or consequential and whether based on any federal, state or local law or other statutory
regulation, securities or commercial law or regulation, or under common law or in equity, or on
contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other
Loan Document, any Obligation, any Related Document, or any act, event or transaction related or
attendant to any thereof, or the use or intended use of the proceeds of the Loans or in connection
with any investigation of any potential matter covered hereby (collectively, the “Indemnified
Matters”); provided, however, that the Borrowers shall not have any liability under this Section
11.4 to an Indemnitee with respect to any Indemnified Matter (i) to the extent resulting from the
gross negligence or willful misconduct of that Indemnitee or any of its Affiliates as determined by
a court of competent jurisdiction in a final non-appealable judgment or order or (ii) to the extent
resulting from a claim brought against such Indemnitee by a Borrower for breach in bad faith of
such Indemnitee’s obligations under any Loan Document, if such Loan Party has obtained a final
non-appealable judgment or order in its favor on such claim from a court of competent jurisdiction.
Without limiting the foregoing, “Indemnified Matters” include (i) all Environmental Liabilities
and Costs arising from or connected with the past, present or future operations of the Group
Members involving any property subject to a Collateral Document, or damage to real or personal
property or natural resources or harm or injury alleged to have resulted from any Release of
Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or
liabilities incurred in connection with any Remedial Action concerning the Group Members, (iii) any
costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or
liabilities incurred in connection with any other matter under any Environmental Law, including the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (49 U.S.C. § 9601 et
seq.) and applicable state property transfer laws, whether, with respect to any such matter, such
Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the
successor in interest to a Group Member, or the owner, lessee or operator of any property of the
Group Members by virtue of foreclosure, except, with respect to those matters referred to in
clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by the
Administrative Agent, any Lender or the Administrative Agent, any Lender having become the
successor in interest to a Group Member and (y) attributable solely to acts of the Administrative
Agent, such Lender or any agent on behalf of the Administrative Agent, such Lender.




66









 








          (b) Each Borrower, at the request of any Indemnitee, shall have the obligation to defend
against any investigation, litigation or proceeding or requested Remedial Action, in each case
contemplated in clause (a) above, and such Borrower, in any event, may participate in the defense
thereof with legal counsel of its choice. In the event that such indemnitee requests the Borrower
to defend against such investigation, litigation or proceeding or requested Remedial Action, the
Borrower shall promptly do so and such Indemnitee shall have the right to have legal counsel of its
choice participate in such defense.




          (c) The Borrower agrees that any indemnification or other protection provided to any
Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan
Document shall (i) survive payment in full of the Obligations and (ii) inure to the benefit of any
Person that was at any time an Indemnitee under this Agreement or any other Loan Document.




          Section 11.5 Limitation of Liability




          (a) Each Borrower agrees that no Indemnitee shall have any liability (whether in contract,
tort or otherwise) to any Loan Party or any of their respective Subsidiaries or any of their
respective equity holders or creditors for or in connection with the transactions contemplated
hereby and in the other Loan Documents and Related Documents, except to the extent such liability
is determined in a final non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnitee’s or its Affiliate’s gross negligence or willful misconduct. In no
event, however, shall any Indemnitee be liable on any theory of liability for any special,
indirect, consequential or punitive damages (including any loss of profits, business or anticipated
savings). Each Borrower hereby waives, releases and agrees (each for itself and on behalf of its
Subsidiaries) not to sue upon any such claim for any special, indirect, consequential or punitive
damages, whether or not accrued and whether or not known or suspected to exist in its favor.




          (b) IN NO EVENT SHALL ANY AGENT AFFILIATE HAVE ANY LIABILITY TO ANY LOAN PARTY, LENDER OR ANY
OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT OR CONTRACT OR OTHERWISE) ARISING OUT OF
ANY LOAN PARTY OR ANY AGENT AFFILIATE’S TRANSMISSION OF APPROVED ELECTRONIC COMMUNICATIONS THROUGH
THE INTERNET OR ANY USE OF THE APPROVED ELECTRONIC PLATFORM, EXCEPT TO THE EXTENT SUCH LIABILITY OF
ANY AGENT AFFILIATE IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED FROM SUCH AGENT AFFILIATE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.




          Section 11.6 Right of Set-off




          Upon the occurrence and during the continuance of any Event of Default each Lender and each
Affiliate of a Lender is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other Indebtedness at any time owing by such Lender or
its Affiliates to or for the credit or the account of each Borrower against any and all of the
Obligations now or hereafter existing whether or not such Lender shall have made any demand under
this Agreement or any other Loan Document and even though such Obligations may be unmatured. Each
Lender agrees promptly to notify the Borrowers (or after the Conversion Date, the Term Borrower)
after any such set-off and application made by such Lender or its Affiliates; provided, however,
that the failure to give such notice shall not affect the validity of such set-off and application.
The rights of each Lender under this

67









 








Section 11.6 are in addition to the other rights and remedies (including other rights of
set-off) that such Lender may have.




          Section 11.7 Sharing of Payments, Etc.




          (a) If any Lender (directly or through an Affiliate thereof) obtains any payment (whether
voluntary, involuntary, through the exercise of any right of set-off (including pursuant to Section
11.6) or otherwise) of the Loans owing to it, any interest thereon, fees in respect thereof or
amounts due pursuant to Section 11.3 or 11.4 (other than payments pursuant to Section 2.14, 2.15
or 2.16 or otherwise receives any Collateral or any Proceeds of Collateral (other than payments
pursuant to Section 2.14, 2.15 or 2.16) (in each case, whether voluntary, involuntary, through the
exercise of any right of set-off (including pursuant to Section 11.6) or otherwise) in excess of
its Ratable Portion of all payments of such Obligations obtained by all the Lenders, such Lender (a
“Purchasing Lender”) shall forthwith purchase from the other Lenders (each, a “Selling Lender”)
such participations in their Loans or other Obligations as shall be necessary to cause such
Purchasing Lender to share the excess payment ratably with each of them.




          (b) If all or any portion of any payment received by a Purchasing Lender is thereafter
recovered from such Purchasing Lender, such purchase from each Selling Lender shall be rescinded
and such Selling Lender shall repay to the Purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Selling Lender’s ratable share (according to
the proportion of (i) the amount of such Selling Lender’s required repayment in relation to (ii)
the total amount so recovered from the Purchasing Lender) of any interest or other amount paid or
payable by the Purchasing Lender in respect of the total amount so recovered.




          (c) Each Borrower agrees that any Purchasing Lender so purchasing a participation from a
Selling Lender pursuant to this Section 11.7 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect to such participation as
fully as if such Lender were the direct creditor of such Borrower in the amount of such
participation.




          Section 11.8 Notices, Etc.




          (a) Addresses for Notices. All notices, demands, requests, consents and other communications
provided for in this Agreement shall be given in writing, or by any telecommunication device
capable of creating a written record (including electronic mail), and addressed to the party to be
notified as follows:




	 	 	 	 	 
	 

	 	(i)
	 	if to the Borrowers:
	 
	 	 	 	 
	 

	 	 	 	c/o ProLogis North American Closed-End Industrial Fund REIT LLC
	 

	 	 	 	4545 Airport Way
	 

	 	 	 	Denver, Colorado 80239
	 

	 	 	 	Attention: Philip D. Joseph, Jr.
	 

	 	 	 	Telecopy no: (303) 567-5902
	 
	 	 	 	 
	 

	 	 	 	          with a copy to:
	 
	 	 	 	 
	 

	 	 	 	Mayer, Brown, Rowe & Maw, LLP
	 

	 	 	 	71 South Wacker Drive
	 

	 	 	 	Chicago, Illinois 60606
	 

	 	 	 	Attention: Robert C. Baptista, Jr.






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	 	 	 	Telecopy no: (312) 701-7711
	 

	 	 	 	E-Mail Address: rbaptista@mayerbrown.com
	 
	 	 	 	 
	 	 	(ii)       if to any Lender, at its Domestic Lending Office specified opposite its name on Schedule II or on the signature
	page of any applicable Assignment and Acceptance;
	 
	 	 	 	 
	 

	 	(iii)
	 	if to the Administrative Agent:
	 
	 	 	 	 
	 

	 	 	 	Citicorp North America, Inc.
	 

	 	 	 	Niraj R. Shah
	 

	 	 	 	388 Greenwich St, 19th Floor
	 

	 	 	 	NY, NY 10013
	 

	 	 	 	Ph: 212-816-5478
	 

	 	 	 	Fax: 646-291-1622
	 

	 	 	 	Email: niraj.r.shah@citi.com
	 

	 	 	 	          with a copy to:
	 
	 	 	 	 
	 

	 	 	 	Weil, Gotshal & Manges, LLP
	 

	 	 	 	767 Fifth Avenue,
	 

	 	 	 	New York, New York 10153-0119
	 

	 	 	 	Attention: Marsha E. Simms, Esq.
	 

	 	 	 	Telecopy no: (212) 310-8007
	 

	 	 	 	E-Mail Address: marsha.simms@weil.com





or at such other address as shall be notified in writing (x) in the case of the Borrowers, the
Administrative Agent, to the other parties and (y) in the case of all other parties, to the
Borrowers and the Administrative Agent.




          (b) Effectiveness of Notices. All notices, demands, requests, consents and other
communications described in clause (a) above shall be effective (i) if delivered by hand, including
any overnight courier service, upon personal delivery, (ii) if delivered by United States mail,
five days after deposit in the United States mails, (iii) if delivered by posting to an Approved
Electronic Platform (to the extent permitted by Section 10.3 to be delivered thereunder), an
Internet website or a similar telecommunication device requiring a user prior access to such
Approved Electronic Platform, website or other device (to the extent permitted by Section 10.3 to
be delivered thereunder), when such notice, demand, request, consent and other communication shall
have been made generally available on such Approved Electronic Platform, Internet website or
similar device to the class of Person being notified (regardless of whether any such Person must
accomplish, and whether or not any such Person shall have accomplished, any action prior to
obtaining access to such items, including registration, disclosure of contact information,
compliance with a standard user agreement or undertaking a duty of confidentiality) and such Person
has been notified that such communication has been posted to the Approved Electronic Platform and
(iv) if delivered by electronic mail or any other telecommunications device, when transmitted to an
electronic mail address (or by another means of electronic delivery) as provided in clause (a)
above; provided, however, that notices and communications to the Administrative Agent pursuant to
Article II or Article X shall not be effective until received by the Administrative Agent.




          (c) Use of Electronic Platform. Notwithstanding clause (a) and (b) above (unless the
Administrative Agent requests that the provisions of clause (a) and (b) above be followed) and any
other provision in this Agreement or any other Loan Document providing for the delivery of any
Approved Electronic Communication by any other means the Loan Parties shall deliver all Approved
Electronic Communications to the Administrative Agent by properly transmitting such Approved
Electronic

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Communications in an electronic/soft medium in a format reasonably acceptable to the
Administrative Agent to oploanswebadmin@citigroup.com or such other electronic mail address (or
similar means of electronic delivery) as the Administrative Agent may notify the Borrowers (or
after the Conversion Date, the Term Borrower). Nothing in this clause (c) shall prejudice the
right of the Administrative Agent or any Lender to deliver any Approved Electronic Communication to
any Loan Party in any manner authorized in this Agreement or to request that the Borrowers effect
delivery in such manner.




          Section 11.9 No Waiver; Remedies




          No failure on the part of any Lender or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.




          Section 11.10 Binding Effect




          This Agreement shall become effective when it shall have been executed by the Borrowers and
the Administrative Agent and when the Administrative Agent shall have been notified by each Lender
that such Lender has executed it and thereafter shall be binding upon and inure solely to the
benefit of the Borrowers, the Administrative Agent and each Lender and, in each case, their
respective successors and assigns; provided, however, that the Borrowers shall not have the right
to assign its rights hereunder or any interest herein without the prior written consent of the
Lenders.




          Section 11.11 Governing Law




          This Agreement and the rights and obligations of the parties hereto shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.




          Section 11.12 Submission to Jurisdiction; Service of Process




          (a) Any legal action or proceeding with respect to this Agreement or any other Loan Document
may be brought in the courts of the State of New York located in the City 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, each Borrower hereby accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. The parties hereto hereby
irrevocably waive any objection, including any objection to the laying of venue or based on the
grounds of forum non conveniens, that any of them may now or hereafter have to the bringing of any
such action or proceeding in such respective jurisdictions.




          (b) Each Borrower hereby irrevocably consents to the service of any and all process in any
such action or proceeding by the mailing (by registered or certified mail, postage prepaid) of
copies of such process to the Process Agent or such Borrower at its address specified in Section
11.8. Each Borrower agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.




          (c) Nothing contained in this Section 11.12 shall affect the right of the Administrative Agent
or any Lender to serve process in any other manner permitted by law or commence legal proceedings
or otherwise proceed against the Borrowers or any other Loan Party in any other jurisdiction.




70









 








          Section 11.13 Waiver of Jury Trial




          Each of the Administrative Agent, the Lenders and Each Borrower irrevocably waives trial
by jury in any action or proceeding with respect to this Agreement or any other Loan Document.




          Section 11.14 Marshaling; Payments Set Aside




          None of the Administrative Agent or any Lender shall be under any obligation to marshal any
assets in favor of either Borrower or any other party or against or in payment of any or all of the
Obligations. To the extent that either Borrower makes a payment or payments to the Administrative
Agent or the Lenders or any such Person receives payment from the proceeds of the Collateral or
exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement
or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any other party, then to
the extent of such recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, right and remedies therefor, shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not occurred.




          Section 11.15 Section Titles




          The section titles contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the parties hereto,
except when used to reference a section. Any reference to the number of a clause, sub-clause or
subsection hereof is a reference to such clause, sub-clause or subsection and not to the entire
Section.




          Section 11.16 Execution in Counterparts




          This Agreement may be executed in any number of counterparts and by different parties in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so that all signature
pages are attached to the same document. Delivery of an executed signature page of this Agreement
by facsimile transmission, electronic mail or by posting on the Approved Electronic Platform shall
be as effective as delivery of a manually executed counterpart hereof. A set of the copies of this
Agreement signed by all parties shall be lodged with the Borrowers (or after the Conversion Date,
the Term Borrower) and the Administrative Agent.




          Section 11.17 Entire Agreement




          This Agreement, together with all of the other Loan Documents and all certificates and
documents delivered hereunder or thereunder, embodies the entire agreement of the parties and
supersedes all prior agreements and understandings relating to the subject matter hereof. In the
event of any conflict between the terms of this Agreement and any other Loan Document, the terms of
this Agreement shall govern.




          Section 11.18 Confidentiality




          Each Lender and the Administrative Agent agree to maintain the confidentiality of all
Information (as defined below), except that Information may be disclosed (a) to its Affiliates and
to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors
and representatives




71









 







(it being understood that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information confidential), (b)
to the extent requested by any regulatory authority purporting to have jurisdiction over it
(including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable law or regulation or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any actual or prospective assignee of or participant in any of its rights or obligations under
this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrowers and its obligations, (g) with the consent of the
Borrowers or (h) to the extent such Information becomes publicly available other than as a result
of a breach of this Section.




          For purposes of this Section, “Information” means all information received from ProLogis, any
Group Member relating to ProLogis, any Group Member or any of their respective businesses, other
than any such information that is available to the Administrative Agent or the applicable Lender on
a nonconfidential basis from a source other than ProLogis or any Group Member.




          Section 11.19 Patriot Act Notice.




          Each Lender subject to the Patriot Act hereby notifies each Borrower that, pursuant to Section
326 of the Patriot Act, it is required to obtain, verify and record information that identifies
each Borrower, including the name and address of each Borrower and other information that will
allow such Lender to identify each Borrower in accordance with the Patriot Act.




          Section 11.20 Several Obligations.




          The Obligations of the Borrowers hereunder are several and not joint.





72









 








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




	 	 	 	 	 	 	 
	 	 	PROLOGIS NORTH AMERICAN CLOSED-END
INDUSTRIAL FUND REIT II LLC,
as Term Borrower
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis North American Closed-End 

Industrial Fund Sub, LP, a Delaware limited 

partnership, its sole member
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis North American Closed-End
Industrial 

Fund Sub GP LLC, a Delaware limited liability 

company, its general partner
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis North American Closed-End Industrial 

Fund REIT LLC, a Delaware limited liability 

company, its sole member
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis North American Closed-End Industrial 

Fund, LP, a Delaware limited partnership, its 

sole member
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis North American Closed-End Industrial 

Fund GP LLC, a Delaware limited liability 

company, its
general partner
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis Logistics Services Incorporated, a 

Delaware corporation, its sole member
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Phillip D. Joseph, Jr.
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Phillip D. Joseph, Jr.
	 

	 	 	 	Title:
	 	First Vice President






[Signature page to Credit Agreement]




 









 





	 	 	 	 	 	 	 
	 	 	PROLOGIS NORTH AMERICAN CLOSED-END
INDUSTRIAL FUND SUB, LP,
as Convertible Borrower
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis North American Closed-End Industrial 

Fund Sub GP LLC, a Delaware limited liability 

company, its general partner
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis North American Closed-End Industrial 

Fund REIT LLC, a Delaware limited liability 

company, its sole member
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis North American Closed-End Industrial 

Fund, LP, a Delaware limited partnership, its 

sole member
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis North American Closed-End Industrial 

Fund GP LLC, a Delaware limited liability 

company, its general partner
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis Logistics Services Incorporated, a 

Delaware corporation, its sole member
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Phillip D. Joseph, Jr. 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Phillip D. Joseph, Jr.
	 

	 	 	 	Title:
	 	First Vice President






[Signature page to Credit Agreement]




 









 





	 	 	 	 	 	 	 
	 	 	PROLOGIS NORTH AMERICAN CLOSED-END
INDUSTRIAL FUND, LP,
as Holdings
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis North American Closed-End Industrial 

Fund GP LLC, a Delaware limited liability 

company, its general partner
	 
	 	 	 	 	 	 
	 	 	By:	 	ProLogis Logistics Services Incorporated, a 

Delaware corporation, its sole member
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Phillip D. Joseph, Jr.
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Phillip D. Joseph, Jr.
	 

	 	 	 	Title:
	 	First Vice President






[Signature page to Credit Agreement]




 









 





	 	 	 	 	 
	 	 	CITICORP NORTH AMERICA, INC.,
as Administrative Agent
and Term Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ David Bouton
	 

	 	 	 	 
	 	 	Name: David Bouton
	 	 	Title:






[Signature page to Credit Agreement]




 









 





	 	 	 	 	 
	 	 	CITIGROUP FINANCIAL PRODUCTS INC.,
as Convertible Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ David Bouton
	 

	 	 	 	 
	 	 	Name: David Bouton
	 	 	Title:






[Signature page to Credit Agreement]