10-Q

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

þ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2005

OR

o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from ___to ___

Commission File Number: 001-32385

Macquarie Infrastructure Company Trust

(Exact name of registrant as specified in its charter)

Delaware
(State or Other Jurisdiction of Incorporation or Organization) 20-6196808
(I.R.S. Employer Identification No.)

Commission File Number: 001-32384

Macquarie Infrastructure Company LLC

(Exact name of registrant as specified in its charter)

Delaware
(State or Other Jurisdiction of Incorporation or Organization) 43-2052503
(I.R.S. Employer Identification No.)

125 West 55^th Street, 22^nd Floor
New York, New York
(Address of principal executive offices) 10019
(Zip Code) 

(212) 231-1800
(Registrants’ Telephone Number, Including Area Code)

600 Fifth Avenue, 21^st Floor
New York, NY 10020
(212) 548-6538
(Former Name, Former Address and Former Fiscal Year if Changed Since Last Report)

     Indicate by check mark whether the registrants (1) have filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrants were required to file such reports), and (2) have been subject to such filing requirements for the past 90 days. Yes þ No o

     Indicate by check mark whether the registrants are collectively an accelerated filer (as defined in Rule 12b-2 of the Exchange Act).
Yes o No þ

     Indicate by check mark whether the registrants are collectively a shell company (as defined by Rule 12b-2 of the Exchange Act).
Yes o No þ

     There were 27,050,745 shares of trust stock without par value outstanding at November 1, 2005.

TABLE OF CONTENTS

PART I. FINANCIAL INFORMATION
ITEM 1. Financial Statements
MACQUARIE INFRASTRUCTURE COMPANY TRUST
Consolidated Condensed Balance Sheets as of September 30, 2005 (Unaudited) and December 31, 2004	3
Consolidated Condensed Statement of Operations for the Quarter and Nine Months Ended September 30, 2005, the Quarter Ended September 30, 2004, and the Period from April 13, 2004 (inception) to September 30, 2004 (Unaudited)	4
Consolidated Condensed Statement of Cash Flows for the Nine Months Ended September 30, 2005 and the Period from April 13, 2004 (inception) to September 30, 2004 (Unaudited)	5
Notes to Consolidated Condensed Financial Statements (Unaudited)	6
NORTH AMERICA CAPITAL HOLDING COMPANY
Consolidated Condensed Statement of Operations for the Periods January 1, 2004 through July 29, 2004 and July 30, 2004 through September 30, 2004 (Unaudited)	17
Consolidated Condensed Statement of Cash Flows for the Periods January 1, 2004 through July 29, 2004 and July 30, 2004 through September 30, 2004 (Unaudited)	18
Note to Consolidated Condensed Financial Statements (Unaudited)	19
ITEM 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations	20
ITEM 3. Quantitative and Qualitative Disclosure About Market Risk	42
ITEM 4. Controls and Procedures	43
PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings	44
ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds	44
ITEM 3. Defaults Upon Senior Securities	45
ITEM 4. Submission of Matters to a Vote of Security Holders	45
ITEM 5. Other Information	45
ITEM 6. Exhibits	45
EX-2.2: SECOND AMENDMENT TO PURCHASE AGREEMENT
EX-2.3: JOINDER AGREEMENT
EX-2.4: ASSIGNMENT AGREEMENT
EX-10.1: COMMITMENT LETTER
EX-10.2: LOAN AGREEMENT
EX-10.3: CREDIT AGREEMENT
EX-31.1: CERTIFICATION
EX-31.2: CERTIFICATION
EX-32.1: CERTIFICATION
EX-32.2: CERTIFICATION
EX-99.2: EARNINGS RELEASE

Australian banking regulations that govern the operations of Macquarie Bank Limited and all of its subsidiaries, including Macquarie Infrastructure Management (USA) Inc. (“MIMUSA” or our “Manager”), require the following statements: Investments in Macquarie Infrastructure Company Trust are not deposits with or other liabilities of Macquarie Bank Limited or of any Macquarie Group company and are subject to investment risk, including possible delays in repayment and loss of income and principal invested. Neither Macquarie Bank Limited nor any other member company of the Macquarie Group guarantees the performance of Macquarie Infrastructure Company Trust or the repayment of capital from Macquarie Infrastructure Company Trust.

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PART I. FINANCIAL INFORMATION

ITEM 1. FINANCIAL STATEMENTS

MACQUARIE INFRASTRUCTURE COMPANY TRUST

CONSOLIDATED CONDENSED BALANCE SHEETS
As of September 30, 2005 and December 31, 2004
($ in thousands, except share amounts)

	September 30,			December 31,
	2005			2004
	(unaudited)
Assets
Current assets:
Cash and cash equivalents	$	43,497			140,050
Restricted cash		1,113			1,155
Accounts receivable, less allowance for doubtful accounts of $845 and $1,359		21,228			12,312
Dividend receivable		—			1,743
Inventories		2,104			1,563
Prepaid expenses		4,946			4,186
Deferred income taxes		1,622			1,452
Other		3,981			5,308
Total current assets		78,491			167,769
Property, equipment, land and leasehold improvements, net		311,296			284,744
Other assets:
Restricted cash		17,293			16,790
Equipment lease receivables		44,092			45,395
Investment in unconsolidated business		70,039			79,065
Investment, cost		36,338			39,369
Securities, available for sale		74,862			71,263
Related party subordinated loan		20,043			21,748
Goodwill		234,931			217,576
Intangible assets, net		310,509			254,530
Deposits and deferred costs on acquisition		15,429			—
Fair value of derivative instruments		4,923			724
Other		9,971			9,514
Total assets	$	1,228,217			1,208,487
Liabilities and stockholders’ equity
Current liabilities:
Due to manager	$	2,644			12,306
Accounts payable		13,203			10,912
Accrued expenses		13,603			11,980
Current portion of capital leases and notes payable		2,067			1,242
Current portion of long-term debt		97			94
Other		4,063			2,991
Total current liabilities		35,677			39,525
Capital leases and notes payable, net of current portion		2,104			1,755
Long-term debt, net of current portion		449,244			415,074
Related party long-term debt		18,533			19,278
Deferred income taxes		123,204			123,429
Fair value of derivative instruments		1,325			286
Other		5,616			4,329
Total liabilities		635,703			603,676
Minority interests		9,107			8,515
Stockholders’ equity:
Trust stock, no par value; 500,000,000 shares authorized; 27,050,745 shares issued and outstanding, at September 30, 2005, 26,610,100 shares issued and outstanding at December 31, 2004		596,548			613,265
Accumulated other comprehensive (loss) income		(2,412	)		619
Accumulated deficit		(10,729	)		(17,588	)
Total stockholders’ equity		583,407			596,296
Total liabilities and stockholders’ equity	$	1,228,217		$	1,208,487

See accompanying notes to the consolidated condensed financial statements.

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MACQUARIE INFRASTRUCTURE COMPANY TRUST

CONSOLIDATED CONDENSED STATEMENT OF OPERATIONS
For the Quarter and Nine Months Ended September 30, 2005, the Quarter Ended September 30, 2004
And the Period from April 13, 2004 (inception) — September 30, 2004
(Unaudited)
($ in thousands, except per share amounts)

										Period From
							Nine Months			April 13, 2004
	Quarter Ended			Quarter Ended			Ended			(inception) –
	September 30,			September 30,			September 30,			September 30,
	2005			2004			2005			2004
Revenue
Revenue from fuel sales	$	36,298		$	—		$	100,928		$	—
Service revenue		42,317			—			113,268			—
Financing and equipment lease income		1,320			—			3,993			—
		79,935			—			218,189			—
Costs and expenses
Cost of fuel sales		21,631			—			58,434			—
Cost of services		22,997			—			59,973			—
Selling, general and administrative expenses		21,243			2,023			59,147			4,604
Fees to manager		2,609			—			6,761			—
Depreciation		1,506			—			4,253			—
Amortization of intangibles		3,498			—			9,818			—
Operating income (loss)		6,451			(2,023	)		19,803			(4,604	)
Other income (expense)
Dividend income		116			—			6,300			—
Interest income		893			—			3,252			—
Interest expense		(8,034	)		—			(23,303	)		—
Equity in earnings and amortization charges of investee		1,954			—			2,468			—
Other income (expense), net		122			—			(533	)		—
Net income (loss) before income taxes and minority interests		1,502			(2,023	)		7,987			(4,604	)
Income tax expense		220			—			799			—
Net income (loss) before minority interests		1,282			(2,023	)		7,188			(4,604	)
Minority interests		(24	)		—			329			—
Net income (loss)	$	1,306		$	(2,023	)	$	6,859		$	(4,604	)
Basic earnings (loss) per share:	$	0.05		$	(20,230	)	$	0.26		$	(46,040	)
Weighted average number of shares of trust stock outstanding: basic		27,050,745			100			26,875,416			100
Diluted earnings (loss) per share:	$	0.05		$	(20,230	)	$	0.25		$	(46,040	)
Weighted average number of shares of trust stock outstanding: diluted		27,108,789			100			26,902,843			100
Cash dividends declared per share	$	0.50		$	—		$	1.0877		$	—

See accompanying notes to the consolidated condensed financial statements.

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MACQUARIE INFRASTRUCTURE COMPANY TRUST

CONSOLIDATED CONDENSED STATEMENT OF CASH FLOWS
For the Nine Months Ended September 30, 2005
And the Period from April 13, 2004 (inception) — September 30, 2004
(Unaudited)
($ in thousands)

				Period From April 13,
	Nine Months Ended			2004 (inception) –
	September 30, 2005			September 30, 2004
Operating activities
Net income (loss)	$	6,859		$	(4,604	)
Adjustments to reconcile net income (loss) to net cash provided by operating activities:					—
Depreciation and amortization of property and equipment		10,123			—
Amortization of intangible assets		9,818			—
Loss on disposal of equipment		16
Equity in earnings and amortization charges of investee		2,970			—
Amortization of finance costs		851			—
Deferred rent		1,742			—
Deferred revenue		93			—
Equipment lease receivable		1,256			—
Minority interests		329			—
Noncash compensation		266			—
Other noncash expenses, net		108			—
Accrued interest expense on subordinated debt-related party		757			—
Accrued interest income on subordinated debt-related party		—			—
Changes in current assets and liabilities, net of acquisition:
Accounts receivable		(6,713	)		—
Inventories		(302	)		—
Prepaid expenses and other current assets		530			—
Accounts payable and accrued expenses		3,486			—
Due to manager		2,426			985
Due to Parent		—			3,619
Other		2,078			—
Net cash provided by operating activities		36,693			—
Investing activities
Acquisition of businesses and investments, net of cash acquired		(109,746	)		—
Deposits and deferred costs on future acquisitions		(15,429	)
Goodwill adjustment		694			—
Purchases of property and equipment		(7,502	)		—
Principal proceeds from subordinated loan		914			—
Net cash used in investing activities		(131,069	)		—
Financing activities
Proceeds from debt		32,000			—
Proceeds from line of credit facility		700			—
Contributions received from minority shareholders		1,553			—
Distributions paid to shareholders		(29,423	)		—
Debt financing costs		(1,674	)		—
Distributions paid to minority shareholders		(1,289	)		—
Payment of long-term debt		(81	)		—
Offering costs paid		(1,934	)		—
Change in restricted cash		(551	)		—
Payment of notes and capital lease obligations		(1,105	)		—
Net cash used in financing activities		(1,804	)		—
Effect of exchange rate changes on cash		(373	)		—
Net change in cash and cash equivalents		(96,553	)		—
Cash and cash equivalents at beginning of period		140,050			—
Cash and cash equivalents at end of period	$	43,497		$
Supplemental disclosures of cash flow information:
Income taxes paid	$	2,060		$	—
Interest paid	$	21,757		$	—
Acquisition of property and equipment under capital leases	$	1,699		$	—

See accompanying notes to the consolidated condensed financial statements.

5

MACQUARIE INFRASTRUCTURE COMPANY TRUST

NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Unaudited)

1. Organization and Description of Business

Macquarie Infrastructure Company Trust (the “Trust”), a Delaware statutory trust, was formed on April 13, 2004. Macquarie Infrastructure Company LLC (the “Company”), a Delaware limited liability company, was also formed on April 13, 2004. Prior to December 21, 2004, the Trust was a wholly-owned subsidiary of Macquarie Infrastructure Management (USA) Inc., (“MIMUSA”). MIMUSA is a subsidiary of the Macquarie Group of companies, which is comprised of Macquarie Bank Limited and its subsidiaries and affiliates worldwide. Macquarie Bank Limited is headquartered in Australia and is listed on the Australian Stock Exchange.

The Trust and the Company were formed to own, operate and invest in a diversified group of infrastructure businesses in the United States and other developed countries. In accordance with the Trust Agreement, the Trust is the sole holder of 100% of the LLC interests of the Company and, pursuant to the LLC Agreement, the Company will have outstanding the identical number of LLC interests as the number of outstanding shares of trust stock. The Company is the operating entity with a Board of Directors and other corporate governance responsibilities generally consistent with that of a Delaware corporation.

On December 21, 2004, the Trust and the Company completed an initial public offering (“IPO”), and concurrent private placement, issuing a total of 26,610,000 shares of trust stock at a price of $25.00 per share. Total gross proceeds were $665.3 million, before offering costs and underwriting fees of $51.6 million. MIMUSA purchased two million shares ($50 million) of the total shares issued, through the private placement offering. The majority of the proceeds were used to acquire the Company’s initial infrastructure businesses and investments.

In December 2004, subsequent to the IPO, the Company purchased the following companies:

1)	North America Capital Holding Company (“NACH”) — an airport service business that is an operator of 13 fixed-based operations or FBOs (10 FBOs at acquisition date) which provide fuel, de-icing, aircraft parking, hangar and other services. The FBOs are located in various locations in the United States and the corporate headquarters are in Plano, Texas.
2)	Macquarie Airports North America, Inc. (“MANA”) — an airport service business that is an operator of 5 FBOs and 1 heliport which provides fuel, de-icing, aircraft parking and hangar services, airport management, and other aviation services. The FBOs are located in the northeast and southern regions of the United States and the corporate headquarters are in Baltimore, Maryland.
3)	Macquarie Americas Parking Corporation (“MAPC”) — an airport parking business that provides off-airport parking services as well as ground transportation to and from the parking facilities and the airport terminals. MAPC operates 30 off-airport parking facilities located at 15 major airports throughout the United States and maintains its headquarters in Downey, California.
4)	Macquarie District Energy Holdings, LLC (“MDEH”) — a business that provides district cooling to 98 customers in Chicago, Illinois and provides district heating and cooling to a single customer outside of downtown Chicago and to the Aladdin Resort & Casino located in Las Vegas, Nevada. MDEH maintains its headquarters in Chicago, Illinois.
5)	Macquarie Yorkshire Limited (“MYL”) — an entity that owns a 50% interest in a shadow toll road located in the United Kingdom, pursuant to a concession agreement with the U.K. government.

In December 2004, the Company also purchased an interest in Macquarie Communications Infrastructure Group (“MCG”), an investment vehicle managed by a member of the Macquarie Group that operates an Australian broadcast transmission provider and a provider of broadcast transmission and site leasing infrastructure operated in the U.K. and Republic of Ireland. The Company also purchased an indirect interest in South East Water (“SEW”), a utility company that provides water to households and industrial customers in south-eastern England.

6

On January 14, 2005, NACH acquired all of the membership interests in General Aviation Holdings, LLC (“GAH”), an entity that operates two FBOs in California. On August 12, 2005, Macquarie FBO Holdings LLC, a wholly owned subsidiary of Macquarie Infrastructure Company Inc. (“MIC Inc.” ), acquired all of the membership interests in Eagle Aviation Resources, Ltd. (“EAR”), a company doing business as Las Vegas Executive Air Terminal.

The airport services, airport parking and district energy businesses are owned by the Company’s wholly-owned subsidiary, MIC Inc. The investments and the business that operates a toll road are owned by the Company through separate Delaware limited liability companies.

2. Basis of Presentation

The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States and in accordance with the instructions to Form 10-Q and Article 10 of Regulation S-X for interim financial information. Accordingly, they do not include all of the information and footnotes required by accounting principles generally accepted in the United States for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring adjustments) considered necessary for a fair presentation have been included. Operating results for the quarter and nine months ended September 30, 2005 are not necessarily indicative of the results that may be expected for the year ending December 31, 2005.

The consolidated balance sheet at December 31, 2004 has been derived from audited financial statements but does not include all of the information and footnotes required by accounting principles generally accepted in the United States for complete financial statements.

The interim financial information contained herein should be read in conjunction with the consolidated financial statements and notes thereto for the year ended December 31, 2004 included in the Company’s Annual Report on Form 10-K.

3. Earnings Per Share

Following is a reconciliation of the basic and diluted number of shares used in computing earnings per share:

							Period from
			Quarter		Nine Months		April 13, 2004
	Quarter Ended		Ended		Ended		(inception) –
	September 30,		September 30,		September 30,		September 30,
	2005		2004		2005		2004
Weighted average number of shares of trust stock outstanding: basic		27,050,745		100		26,875,416		100
Dilutive effect of restricted stock unit grants		58,044		—		27,427		—
Weighted average number of shares of trust stock outstanding: diluted		27,108,789		100		26,902,843		100

The effect of potentially dilutive shares is calculated by assuming that the restricted stock unit grants issued to our independent directors on May 25, 2005 had been fully converted to shares on that date.

4. Acquisitions

     General Aviation Holdings, LLC

On January 14, 2005, NACH acquired all of the membership interests in GAH, which, through its subsidiaries, operates two FBOs in California, for $50.3 million (including transaction costs and working capital adjustments). The acquisition was paid for in cash through additional long-term debt borrowings of $32.0 million under NACH’s existing debt facility with the remainder funded by proceeds from the IPO.

NACH paid fees to the Macquarie Group for advisory services of $1.1 million, debt arranging services of $160,000 and equity and debt underwriting services of $913,000 provided in connection with the acquisition. The advisory fees have been capitalized and are included as part of the purchase price of the acquisition. The debt arranging fees have been deferred and amortized over the life of the relevant debt facility. The equity and debt underwriting fees have been expensed.

The acquisition has been accounted for under the purchase method of accounting. The results of operations of GAH are included in

7

the accompanying consolidated condensed statement of operations since January 15, 2005.

The allocation of the purchase price, including transaction costs, was as follows (in thousands):

Current assets	$	1,976
Property, equipment, and leasehold improvements		12,680
Intangible assets:
Customer relationships		1,100
Airport contract rights		18,800
Non-compete agreements		1,100
Goodwill		15,519
Total assets acquired		51,175
Current liabilities		882
Net assets acquired	$	50,293

The Company paid more than the fair value of the underlying net assets as a result of the expectation of its ability to earn a higher rate of return from the acquired business than would be expected if those net assets had to be acquired or developed separately. The value of the acquired intangible assets was determined by taking into account risks related to the characteristics and applications of the assets, existing and future markets and analyses of expected future cash flows to be generated by the business. The airport contract rights are being amortized on a straight-line basis over their estimated useful lives ranging from 20 to 30 years.

The Company allocated $1.1 million of the purchase price to customer relationships in accordance with EITF 02-17, “Recognition of Customer Relationship Intangible Assets Acquired in a Business Combination.” The Company will amortize the amount allocated to customer relationships over a 9 year period.

The pro forma impact of GAH on the consolidated results is not significant and, therefore, this pro forma impact has not been presented.

     Eagle Aviation Resources, Ltd.

On August 12, 2005, Macquarie FBO Holdings LLC, a wholly owned subsidiary of MIC Inc., acquired all of the membership interests in EAR, a Nevada limited liability company doing business as Las Vegas Executive Air Terminal, for $59.8 million (including transaction costs and working capital adjustments). The acquisition was paid for in cash, funded by proceeds from the IPO.

Macquarie FBO Holdings LLC paid fees to the Macquarie Group for advisory services of $1.0 million in connection with the acquisition. The advisory fees have been capitalized and are included as part of the purchase price of the acquisition.

The acquisition has been accounted for under the purchase method of accounting. The results of operations of EAR are included in the accompanying consolidated condensed statement of operations since August 13, 2005.

The preliminary allocation of the purchase price, including transaction costs, was as follows (in thousands):

Current assets	$	2,264
Property, equipment, and leasehold improvements		14,465
Intangible assets:
Airport contract rights		45,047
Total assets acquired		61,776
Current liabilities		1,936
Net assets acquired	$	59,840

The value of the acquired intangible assets was determined by taking into account risks related to the characteristics and applications of the assets, existing and future markets and analyses of expected future cash flows to be generated by the business. The airport contract rights are being amortized on a straight-line basis over an estimated useful life of 20 years.

The pro forma effect of EAR on the consolidated results, had the transaction occurred on January 1, 2005, would have been to increase net income by $239,000 and $3.4 million, respectively, for the quarter and nine months ended September 30, 2005.

8

     The Gas Company

On August 17, 2005, the Company, through a wholly-owned subsidiary, entered into a joinder agreement with k1 Ventures Limited, K-1 HGC Investment, L.L.C. (together with k1 Ventures, the “K1 Parties”), and Macquarie Investment Holdings Inc. (“MIHI”) and a related assignment agreement with MIHI. Under these agreements, the Company’s wholly-owned subsidiary assumed all of MIHI’s rights and obligations as a Buyer under a purchase agreement between MIHI and the K1 Parties for no additional consideration other than providing MIHI with an indemnification for the liabilities, cost and expenses it has incurred as “Buyer” under the purchase agreement. The purchase agreement provides for the acquisition by the Buyer of, at the option of k1 Ventures, either 100% of the interests in HGC Investment or 100% of the membership interests of HGC Holdings, L.L.C.

HGC Investment owns a 99.9% non-managing membership interest in HGC Holdings, a Hawaii limited liability company, and has the right to acquire the remaining membership interest in HGC Holdings. HGC Holdings is the sole member of The Gas Company, L.L.C., a Hawaii limited liability company which owns and operates the sole regulated gas distribution business in Hawaii as well as a propane sales and distribution business in Hawaii.

The purchase agreement provides for the payment in cash of a base purchase price of $238 million (subject to working capital and capital expenditure adjustments) with no assumed interest-bearing debt. The Company currently expects working capital and capital expenditure adjustments to add approximately $12 million to the total purchase price. In addition to the purchase price, it is anticipated that approximately a further $9 million will be paid to cover transaction costs. The Company expects to finance the acquisition, including an initial up-front deposit of $12.2 million, with $160 million of future subsidiary level debt and the remainder from proceeds from a refinancing of the airport services segment currently underway or other sources of available cash. Absent an intervening use for the proceeds from the refinancing of the Company’s airport services segment, the Company does not intend to issue equity in the public markets to complete the acquisition of The Gas Company.

Due to the regulatory and other approvals required to complete the transaction, the Company does not expect to be able to close the transaction prior to late in the second quarter or third quarter of 2006.

Macquarie Securities (USA) Inc. (“MSUSA”) is acting as financial advisor to the Company on the transaction, including in connection with the debt financing arrangements. MIHI and MSUSA are both subsidiaries of Macquarie Bank Limited, the parent company of the Company’s Manager.

5. Property, Equipment, Land and Leasehold Improvements

Property, equipment, land and leasehold improvements consists of the following (in thousands):

	September 30, 2005
	(unaudited)			December 31, 2004
Land	$	50,080		$	47,017
Easements		5,624			5,624
Buildings		31,049			30,337
Leasehold and land improvements		88,657			61,187
Machinery and equipment		129,338			125,679
Furniture and fixtures		1,811			1,247
Construction in progress		13,161			12,178
Property held for future use		1,197			1,317
Other		830			528
		321,747			285,114
Less: Accumulated depreciation		(10,451	)		(370	)
Property, equipment, land and leasehold improvements, net	$	311,296		$	284,744

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6. Intangible Assets

Intangible assets consists of the following (in thousands):

			September 30, 2005
			(unaudited)				December 31, 2004
	Weighted
	Average Life		Gross Carrying		Accumulated		Gross Carrying		Accumulated
	(Years)		Value		Amortization		Value		Amortization
Contractual arrangements		35.7	$	244,335	$	5,101	$	180,491	$	179
Non-compete agreements		2.5		7,166		2,248		6,066		49
Customer relationships		10.3		25,591		2,133		24,490		34
Leasehold rights		16.3		6,510		546		6,758		17
Trade names	Indefinite			28,559		—		28,559		—
Domain names	Indefinite			7,987		—		7,987		—
Technology		5.0		460		71		460		2
			$	320,608	$	10,099	$	254,811	$	281

Amortization expense for the quarter and nine months ended September 30, 2005 totaled $3.5 million and $9.8 million, respectively.

7. Long Term Debt

The Company capitalizes its operating businesses separately using non-recourse, project finance style debt. The Company currently has no indebtedness at the MIC LLC, Trust or MIC Inc. level.

Long-term debt consisted of the following (in thousands):

	September 30, 2005
	(unaudited)		December 31, 2004
MDE senior notes (1)	$	120,000	$	120,000
NACH class A notes		29,623		23,500
NACH class B notes		130,877		105,000
MANA senior debt		36,000		36,000
MAPC loan payable		125,976		126,000
MAPC loan payable		4,622		4,668
MAPC loan payable		2,243		—
		449,341		415,168
Less: current portion		97		94
Long-term portion	$	449,244	$	415,074

(1) Macquarie District Energy, Inc. (“MDE”) is a wholly owned subsidiary of MDEH.

Macquarie Bank Limited provided $51.4 million of term loan financing to NACH. On June 30, 2005, Macquarie Bank Limited sold down a portion of this loan to other banks and as a result, as of September 30, 2005, Macquarie Bank Limited’s term loan to NACH was $25.4 million, which is included in NACH’s long-term debt. Interest paid on Macquarie Bank Limited’s portion of this loan for the quarter and nine months ended September 30, 2005 was $423,000 and $1.9 million, respectively, and has been included in interest expense in the accompanying consolidated condensed statement of operations.

On January 14, 2005, NACH borrowed an additional $32.0 million from its credit facility, in connection with the acquisition of GAH. Financing costs of $244,000 were paid by NACH in January 2005 to Macquarie Bank Limited in relation to these additional borrowings. These financing costs are included in Other assets – other, in the accompanying consolidated condensed balance sheet and are amortized over the life of the long-term debt.

8. Comprehensive Income

The Company follows the requirements of FASB Statement No. 130, Reporting Comprehensive Income, for the reporting and display of comprehensive income and its components. FASB Statement No. 130 requires unrealized gains or losses on the Company’s available for sale securities, foreign currency translation adjustments and change in fair value of derivatives to be included in other comprehensive (loss) income.

Total comprehensive (loss) income for the quarter and nine months ended September 30, 2005 was $(3.9) million and $3.8 million, respectively. These amounts are included in the accumulated other comprehensive (loss) income on the Company’s consolidated

10

condensed balance sheet as of September 30, 2005. The difference between net income of $1.3 million for the quarter ended September 30, 2005 and comprehensive loss is primarily attributable to an increase in the fair value of derivatives of $300,000, offset by both an unrealized loss on marketable securities of $4.7 million and foreign currency translation adjustments of $800,000. The difference between net income of $6.9 million for the nine months ended September 30, 2005 and comprehensive income is primarily attributable to an unrealized gain on marketable securities of $5.1 million and an increase in fair value of derivatives of $2.0 million, offset by foreign currency translation adjustments of $10.2 million.

9. Stockholders’ Equity

The Trust is authorized to issue 500,000,000 shares of trust stock, and the Company is authorized to issue a corresponding number of LLC interests. Unless the Trust is dissolved, it must remain the sole holder of 100% of the Company’s LLC interests and, at all times, the Company will have the identical number of LLC interests outstanding as shares of trust stock. Each share of trust stock represents an undivided beneficial interest in the Trust, and each share of trust stock corresponds to one underlying LLC interest in the Company. Each outstanding share of the trust stock is entitled to one vote for each share on any matter with respect to which members of the Company are entitled to vote.

10. Reportable Segments

The Company’s operations are now classified into three reportable business segments: airport services business, airport parking business, and district energy business. All of the business segments are managed separately. Prior to the current quarter, the airport services business consisted of two reportable segments, Atlantic and AvPorts. These businesses are currently being integrated and managed together. Therefore, they are now combined into a single reportable segment. Results for prior periods have been restated to reflect the new combined segment.

The airport services business reportable segment principally derives income from fuel sales and from airport services. Airport services revenue includes fuel, de-icing, aircraft parking, airport management and other aviation services. All of the revenue of the airport services business is derived in the United States. The airport services business operated 18 FBOs and one heliport and managed six airports under management contracts as of September 30, 2005.

The revenue from the airport parking business reportable segment is included in service revenue and primarily consists of off-airport parking and ground transportation to and from the parking facilities and the airport terminals. At September 30, 2005, the airport parking business operated 25 off-airport parking facilities located in California, Arizona, Colorado, Texas, Georgia, Tennessee, Missouri, Pennsylvania, Connecticut, New York, New Jersey and Illinois.

The revenue from the District Energy Business reportable segment is included in service revenue and financing and equipment lease income. Included in service revenue is capacity charge revenue, which relates to monthly fixed contract charges, and consumption revenue, which relates to contractual rates applied to actual usage. Financing and equipment lease income relates to direct financing lease transactions and equipment leases to the Company’s various customers. The Company provides such services to buildings throughout the greater Chicago area and to the Aladdin Resort and Casino and shopping mall located in Las Vegas, Nevada.

Selected information by reportable segment is presented in the following tables (in thousands):

	Quarter Ended September 30, 2005
	(unaudited)
	Airport Services		Airport Parking		District Energy		Total
Revenue from Product Sales
Fuel sales	$	36,298	$	—	$	—	$	36,298
		36,298		—		—		36,298
Service Revenue
Other services		13,416		—		500		13,916
Cooling capacity revenue		—		—		4,179		4,179
Cooling consumption revenue		—		—		9,762		9,762
Parking services		—		14,460		—		14,460
		13,416		14,460		14,441		42,317
Financing and Lease Income
Financing and equipment lease		—		—		1,320		1,320
		—		—		1,320		1,320
Total Revenue	$	49,714	$	14,460	$	15,761	$	79,935

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									At September 30, 2005
									(unaudited)
	Quarter Ended September 30, 2005								Property,
	(unaudited)								Equipment, Land
	Segment		Interest		Depreciation/		Capital		and Leasehold		Total
	Profit (1)		Expense		Amortization(2)		Expenditures(3)		Improvements		Assets
Airport Services	$	26,286	$	3,357	$	4,050	$	1,214	$	91,538	$	522,581
Airport Parking		3,666		2,303		1,164		3,115		71,605		230,550
District Energy		5,355		2,127		1,775		127		148,153		251,625
Total	$	35,307	$	7,787	$	6,989	$	4,456	$	311,296	$	1,004,756

The above table does not include financial data for our equity and cost investments.

(1)	Segment profit includes revenue less cost of sales. For the airport parking and district energy businesses, depreciation expense of $555,000 and $1.4 million, respectively, are included in cost of sales for the quarter ended September 30, 2005.
(2)	Includes depreciation expense of property, equipment and leasehold improvements and amortization of intangible assets. Includes depreciation expense for the airport parking and district energy businesses which has also been included in segment profit.
(3)	Includes acquisition of property and equipment under capital leases of $300,000.

Reconciliation of total reportable segment assets to total consolidated assets at September 30, 2005 (in thousands):

Total assets of reportable segments	$	1,004,756
Equity and cost investments:
Investment in Yorkshire Link		70,039
Investment in SEW		36,338
Investment in MCG		74,862
Corporate and other		277,194
Less: Consolidation entries		(234,972	)
Total consolidated assets	$	1,228,217

Reconciliation of total reportable segment profit to total consolidated income before income taxes and minority interests for the periods ended September 30, 2005 (in thousands):

	Quarter Ended			Nine Months Ended
	September 30, 2005			September 30, 2005
Total reportable segment profit	$	35,307		$	99,782
Selling, general and administrative expenses		(21,243	)		(59,147	)
Fees to manager		(2,609	)		(6,761	)
Depreciation and amortization (1)		(5,004	)		(14,071	)
		6,451			19,803
Other expense, net		(4,949	)		(11,816	)
Total consolidated income before income taxes and minority interests		1,502			7,987

(1) Does not include depreciation expense for the airport parking and district energy businesses which are included in total reportable segment profit.

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	Nine Months Ended September 30, 2005
	(unaudited)
			Airport		District
	Airport Services		Parking		Energy		Total
Revenue from Product Sales
Fuel sales	$	100,928	$	—	$	—	$	100,928
		100,928		—		—		100,928
Service Revenue
Other services		40,509		—		1,552		42,061
Cooling capacity revenue		—		—		12,365		12,365
Cooling consumption revenue		—		—		16,798		16,798
Parking services		—		42,044		—		42,044
		40,509		42,044		30,715		113,268
Financing and Lease Income
Financing and equipment lease		—		—		3,993		3,993
		—		—		3,993		3,993
Total Revenue	$	141,437	$	42,044	$	34,708	$	218,189

Financial data by reportable business segments (in thousands):

	Nine Months Ended September 30, 2005
	(unaudited)
	Segment		Interest		Depreciation/		Capital
	Profit(1)		Expense		Amortization(2)		Expenditures(3)
Airport Services	$	77,103	$	10,183	$	11,221	$	3,592
Airport Parking		10,956		6,722		3,431		4,827
District Energy		11,723		6,399		5,289		782
Total	$	99,782	$	23,304	$	19,941	$	9,201

The above table does not include financial data for our equity and cost investments.

(1)	Segment profit includes revenue less cost of sales. For the airport parking and district energy businesses, depreciation expense of $1.6 million and $4.2 million, respectively, are included in cost of sales.
(2)	Includes depreciation expense of property, equipment and leasehold improvements and amortization of intangible assets. Includes depreciation expense for the airport parking and district energy businesses which has also been included in segment profit.
(3)	Includes acquisition of property and equipment under capital leases of $1.7 million.

11. Related Party Transactions

Management Services Agreement with Macquarie Infrastructure Management (USA) Inc. (“MIMUSA”)

The Company entered into a management services agreement (“Management Agreement”) with MIMUSA dated December 21, 2004 pursuant to which MIMUSA manages the Company’s day-to-day operations and oversees the management teams of the Company’s operating businesses. In addition, MIMUSA has seconded a Chief Executive Officer and a Chief Financial Officer to the Company and makes other personnel available as required.

In accordance with the Management Agreement, MIMUSA is entitled to a quarterly base management fee based primarily on the Trust’s market capitalization and a performance fee, as defined, based on the performance of the trust stock relative to a weighted average of two benchmarks, a U.S. utilities index and a European utilities index, weighted in proportion to the Company’s equity investments. For the quarter and nine months ended September 30, 2005, base management fees of $2.6 million and $6.7 million, respectively, were payable to MIMUSA. There were no performance fees payable to MIMUSA for these periods.

On April 19, 2005, the Company issued 433,001 shares of trust stock to MIMUSA as consideration for the $12.1 million performance fee due for the fiscal quarter ended December 31, 2004.

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During the nine months ended September 30, 2005, MIMUSA has charged the Company $298,000 for reimbursement of out of pocket expenses.

Advisory and Other Services from the Macquarie Group and its Affiliates

During the nine months ended September 30, 2005, the Macquarie Group, through its wholly-owned group company, Macquarie Securities (USA) Inc., provided various advisory services and incurred expenses in connection with the acquisitions of GAH (and the associated debt required for this acquisition) and EAR. Details on the amounts paid to the Macquarie Group in connection with these services are disclosed in Note 4. Macquarie Securities (USA) Inc. has also been engaged by the Company and its subsidiaries in connection with various on-going transactions for which no fees had been paid as of September 30, 2005. Fees paid to the Macquarie Group subsequent to September 30, 2005, have been disclosed in Note 15.

The Company and its airport services and airport parking businesses pay fees for employee consulting services to the Detroit and Canada Tunnel Corporation, which is owned by an entity managed by the Macquarie Group. Fees paid for the quarter and nine months ended September 30, 2005 were $50,000 and $147,000, respectively.

Related Party Loans

Macquarie Bank Limited has extended a loan to a subsidiary within our group. Details on this loan are disclosed in Note 7.

Derivative Instruments and Hedging Activities

The Company, through its limited liability subsidiaries, has entered into foreign-exchange related derivative instruments with Macquarie Bank Limited to manage its exchange rate exposure on its future cash flows from its non-US investments.

During the nine months ended September 30, 2005, South East Water LLC paid £1.4 million to Macquarie Bank Limited and received $2.7 million which closed out a forward contract between the parties. As of September 30, 2005, South East Water LLC has three other forward contracts with Macquarie Bank Limited.

During the same period, Macquarie Yorkshire LLC paid £1.5 million to Macquarie Bank Limited and received $2.8 million which closed out a forward contract between the parties. As of September 30, 2005 Macquarie Yorkshire LLC has four other forward contracts with Macquarie Bank Limited.

On August 18, 2005, MIC Inc. entered into two interest rate swaps with Macquarie Bank Limited to manage its future interest rate exposure. The effective date of the swaps are August 31, 2006 and no payments or receipts have arisen in relation to these swaps, during the nine months ended September 30, 2005.

12. Income Taxes

Macquarie Infrastructure Company Trust is classified as a grantor trust for U.S. federal income tax purposes, and therefore is not subject to income taxes. The Company is treated as a partnership for U.S. federal income tax purposes and is also not subject to income taxes. MIC Inc. and its wholly-owned subsidiaries are subject to income taxes.

Consolidated pre-tax income for the nine months ended September 30, 2005 was $8.0 million. The Company accounted for $7.4 million of total pre-tax income. As a partnership for U.S. federal income tax purposes, this income is not subject to income taxes.

The remaining $623,000 of pre-tax income was generated by MIC Inc. and its subsidiaries and is subject to income taxes. The Company records its income taxes in accordance with SFAS 109 “Accounting for Income Taxes.”

The Company expects to incur a net operating loss for federal consolidated return purposes, as well as certain states that provide for consolidated returns, for the year ended December 31, 2005. Due to the uncertainty of being able to utilize the projected federal and state consolidated 2005 losses, the Company has provided a full valuation allowance against all net operating losses. However, the Company has two subsidiaries that expect to generate taxable income for the year ended December 31, 2005, on a separate company basis. As such, a state tax provision of approximately $799,000 has been recorded for separate company state taxes, on a separate company pre-tax income of $8.0 million for the nine months ended September 30, 2005. The Company’s net effective rate of 10.0% for the nine months ended September 30, 2005 is primarily due to the benefit of the Company’s pre-tax income of $7.4 million not being subject to income taxes less the state tax provision on separate company book income of certain separate entities within MIC Inc.

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13. Legal Proceedings and Contingencies

Please see the legal proceedings described for the quarterly period ended June 30, 2005 and in our Annual Report on Form 10-K for the fiscal year ended December 31, 2004. There were no material changes during the quarter ended September 30, 2005.

14. Dividends

On May 14, 2005, our board of directors declared a dividend of $0.50 per share for the quarter ended March 31, 2005 and an additional dividend of $0.0877 per share for the period ended December 31, 2004. The dividend payments were made on June 7, 2005 to holders of record on June 2, 2005. On August 8, 2005, our board of directors declared a dividend of $0.50 per share for the quarter ended June 30, 2005. The dividend payment was made on September 9, 2005 to holders of record on September 6, 2005.

15. Subsequent Events

Dividends

On November 7, 2005, our board of directors declared a dividend of $0.50 per share for the quarter ended September 30, 2005, payable on December 9, 2005 to holders of record on December 6, 2005.

Acquisitions

On October 3, 2005, the Company, through a majority-owned subsidiary, completed the acquisition of real property and personal and intangible assets related to six off-airport parking facilities. The acquisition was completed pursuant to two agreements for sale and purchase of property executed on August 2, 2005, the first with Airport Properties LLC, SunPark, Inc., SunPark Houston Acquisition Corp., SunPark Oklahoma Acquisition Corp., Airpark St. Louis Corp. and St. Louis Airport Property, LLC and the second with CSFB 1999-C1 Edmundson Parking, LLC. These six off-airport parking facilities are collectively referred to as SunPark.

The total cash purchase price for SunPark was $64.9 million, plus approximately $4 million of acquisition costs (including pre-funded reserves) and $1.0 million of pre-funded capital expenditures. The transaction was financed through $48.8 million of new non-recourse debt facility at the subsidiary level, $19.1 million of cash contributed by the Company, $1.0 million of cash contributed by minority shareholders in the Company’s parking business and $1.0 million cash from the business.

In addition, on October 26, 2005, the Company acquired certain real property at a facility located in Maricopa, Arizona. The property had been leased by the Company’s off-airport parking business in 2004 with an option to buy. The total cash purchase price of $4.2 million was financed through $2.8 million of additional borrowings under the non-recourse debt facility referred to above, $1.3 million of cash contributed by the Company and $70,000 of cash contributed by minority shareholders in the Company’s parking business.

The minority shareholders did not contribute their full pro rata share of capital related to the acquisitions. As a result, the Company’s ownership interest in the off-airport parking business increased from 87.1% to 87.9%.

The Company’s off-airport parking business established a non-recourse debt facility on October 3, 2005 under a credit agreement between GMAC Commercial Mortgage Corporation and a subsidiary within the Company’s off-airport parking business to fund the SunPark acquisition. The SunPark debt facility provided funding in the form of term loans with a three year term and two additional one year extensions at the borrower’s option subject to meeting certain covenants. Amounts outstanding under the facility bear interest at the rate of 2.75% over LIBOR per annum during the first three years, increasing by 0.20% per annum in connection with each one-year extension. An additional $10.0 million of borrowings were initially available under the facility to fund the acquisition of additional airport parking facilities. Of this additional availability, $2.8 million was drawn on October 26, 2005 to fund the acquisition of the Maricopa facility. The SunPark debt facility is secured by all of the real property and other assets of SunPark and the Maricopa facility.

The Company entered into an interest rate cap agreement which effectively caps the LIBOR portion of the interest rate on the SunPark facility at 4.48% for any amounts borrowed under the facility.

The credit facility contains various provisions customary for credit facilities of this size and type, including representations, warranties and covenants with respect to the business. In particular, the borrower is required to maintain a net worth of $20.0 million and liquidity of $1.0 million. In addition, the borrower is required to maintain various reserves totaling $522,000, which were fully funded at closing. The agreement provides for a cash lock-up in an event of default.

Macquarie Securities (USA) Inc. acted as financial advisor to the Company in connection with the SunPark acquisition and debt

15

financing for which it received a fee of $1.0 million plus nominal expenses.

Revolving Credit Facility

On November 11, 2005, MIC Inc. entered into a $250 million revolving credit facility with Citicorp North America Inc (as lender and administrative agent), Citibank NA, Merrill Lynch Capital Corporation, Credit Suisse, Cayman Islands Branch and Macquarie Bank Limited. MIC Inc.’s obligations under the revolving facility are guaranteed by the Company and secured by a pledge of the equity of all current and future direct subsidiaries of MIC Inc. and the Company. No amounts have been borrowed under this facility to date. The terms and conditions for the revolving facility include events of default and representations and warranties that are generally customary for a facility of this type. In addition, the revolving facility includes an event of default should the Manager or another affiliate of Macquarie Bank Limited cease to act as manager. The Company intends to use the revolving facility to fund acquisitions, capital expenditures and to a limited extent working capital.

Macquarie Securities (USA) Inc, an affiliate of our Manager, advised us in relation to the establishment of the revolving facility and will receive fees of $625,000. Macquarie Bank Limited, also an affiliate of the Manager, has provided a commitment for $100 million of the revolving facility on the same terms as the non-affiliated participants. Each of Citicorp North America Inc, Merrill Lynch Capital Corporation and Credit Suisse, Cayman Islands Branch provided commitments of $50 million.

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NORTH AMERICA CAPITAL HOLDING COMPANY
(Predecessor to Macquarie Infrastructure Company Trust and Successor to Executive Air Support, Inc.)

CONSOLIDATED CONDENSED STATEMENT OF OPERATIONS
For the periods January 1, 2004 through July 29, 2004 and July 30, 2004 through September 30, 2004
(Unaudited)
($ in thousands)

				Predecessor
	Successor			Executive Air
	North America Capital			Support,
	Holding Company			Inc.
	July 30, 2004 through			January 1, 2004
	September 30, 2004			through July 29, 2004
Revenue
Fuel revenue	$	12,690		$	41,146
Service revenue		3,646			14,616
Total revenue		16,336			55,762
Cost of revenue — fuel		6,830			21,068
Cost of revenue — service		358			1,428
Gross profit		9,148			33,266
Selling, general, and administrative expenses		5,871			22,378
Depreciation and amortization		1,448			2,226
Operating profit		1,829			8,662
Other expense:
Other expense		1,288			5,135
Interest expense, net		1,070			4,638
Loss before income taxes		(529	)		(1,111	)
Benefit for income taxes		(176	)		(597	)
Loss from operations		(353	)		(514	)
Income from discontinued operations		—			159
Net loss		(353	)		(355	)
Net loss applicable to common stockholders:
Net loss	$	(353	)	$	(355	)
Less: Preferred stock dividends		—			(3,102	)
Net loss applicable to common stockholders	$	(353	)	$	(3,457	)

See accompanying note to the consolidated condensed financial statements.

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NORTH AMERICA CAPITAL HOLDING COMPANY
(Predecessor to Macquarie Infrastructure Company Trust and Successor to Executive Air Support, Inc.)

CONSOLIDATED CONDENSED STATEMENT OF CASH FLOWS
For the periods January 1, 2004 through July 29, 2004 and July 30, 2004 through September 30, 2004
(Unaudited)
($ in thousands)

	Successor
	North America			Predecessor
	Capital Holding			Executive Air
	Company			Support, Inc.
	July 30, 2004			January 1, 2004
	through September			through July 29,
	30, 2004			2004
Cash flows from operating activities:
Net loss	$	(353	)	$	(355	)
Adjustments to reconcile net loss to net cash provided by operating activities:
Fair value adjustment for outstanding warrant liability		—			5,280
Depreciation and amortization		1,448			2,226
Non-cash interest expense and other		—			2,761
Deferred taxes		(263	)		(953	)
Changes in assets and liabilities:
Accounts receivable		(295	)		(127	)
Inventories		(73	)		3
Prepaid expenses and other		108			1,048
Liabilities from discontinued operations		10			(131	)
Accounts payable		(129	)		572
Accrued payroll, environmental liabilities, interest, and other		(346	)		191
Customer deposits and deferred hanger rent		(40	)		24
Intercompany receivable from parent company		—			(734	)
Income tax receivable/payable		89			(2,048	)
Net cash provided by operating activities		156			7,757
Cash flows from investing activities:
Purchase of Executive Air Support		(213,758	)		—
Funds received on July 29, 2004 for option and warrant payments made on July 30, 2004		(6,015	)		6,015
Capital expenditures		(1,081	)		(3,049	)
Collections on note receivable from sale of division		24			45
Net cash (used in) provided by investing activities		(220,830	)		3,011
Cash flows from financing activities:
Proceeds from issuance of common stock		90,855			—
Proceeds from issuance of preferred stock		918			—
Borrowing on short-term debt		131,270			—
Net advances to related parties		54			—
Deferred financing costs		(20	)		—
Repayment of short-term note		—			(2,354	)
Payment on capital lease obligations		(60	)		(325	)
Payments under revolving credit agreement		—			(1,000	)
Repayment on subordinated debt		—			(17,850	)
Repayments of borrowings under bank term loans		—			(17,753	)
Purchase of common stock warrants		—			(7,525	)
Termination of interest rate swap		—			(670	)
Deemed capital contribution from parent company for debt and warrant payments		—			41,736
Net cash provided by (used in) financing activities		223,017			(5,741	)
Net increase in cash and cash equivalents		2,343			5,027
Cash and cash equivalents, beginning of period		—			2,438
Cash and cash equivalents, end of period	$	2,343		$	7,465
Supplementary disclosure of cash flow information:
Cash paid during the period for:
Interest		10			2,550
Income taxes		—			2,601
Acquisition costs paid by related party		1,500			—

See accompanying note to the consolidated condensed financial statements.

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NOTE TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Unaudited)

North America Capital Holding Company is the predecessor company to Macquarie Infrastructure Company Trust and is the successor to Executive Air Support, Inc. In accordance with SEC disclosure requirements we have included a consolidated condensed statement of operations and a consolidated condensed statement of cash flows for the periods January 1, 2004 through July 29, 2004 (Executive Air Support, Inc.) and July 30, 2004 through September 30, 2004 (North America Capital Holding Company). We have omitted all financial notes relating to these accompanying statements, as such information can be found in the previously filed Annual Report on Form 10-K for the fiscal year ended December 31, 2004.

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following discussion of our financial condition and results of operations should be read in conjunction with the consolidated condensed financial statements and the notes to those statements included elsewhere herein. This discussion contains forward looking statements that involve risks and uncertainties and are made under the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Words such as “anticipates,” “expects,” “intends,” “plans,” “believes,” “seeks,” “estimates,” and similar expressions identify such forward-looking statements. Our actual results and timing of certain events could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including, but not limited to, those set forth under “Risk Factors” in Part I, Item 1A of our Annual Report on Form 10-K for the fiscal year ended December 31, 2004. Unless required by law, we can undertake no obligation to update forward-looking statements. Readers should also carefully review the risk factors set forth in other reports and documents filed from time to time with the SEC.

Except as otherwise specified, “Macquarie Infrastructure Company,” “we,” “us,” and “our” refer to both the Trust and the Company and its subsidiaries together. Macquarie Infrastructure Management (USA) Inc., which we refer to as our Manager or MIMUSA, is part of the Macquarie group of companies, which we refer to as the Macquarie Group, which comprises Macquarie Bank Limited and its subsidiaries and affiliates worldwide. Macquarie Bank Limited is headquartered in Australia and is listed on the Australian Stock Exchange.

GENERAL

Macquarie Infrastructure Company Trust (the “Trust”), a Delaware statutory trust, was formed on April 13, 2004. Macquarie Infrastructure Company LLC (the “Company”), a Delaware limited liability company, was also formed on April 13, 2004. The Trust is the sole holder of 100% of the LLC interests of the Company. Prior to December 21, 2004, the Trust was a wholly-owned subsidiary of MIMUSA.

We own, operate and invest in a diversified group of infrastructure businesses, which are businesses that provide basic, everyday services, such as parking, roads and water, through long-life physical assets. These infrastructure businesses generally operate in sectors with limited competition and high barriers to entry. As a result, they have sustainable and growing long-term cash flows. We operate and finance our businesses in a manner that maximizes these cash flows.

We are dependent upon cash distributions from our businesses and investments to meet our corporate overhead and management fee expenses and to pay dividends. We expect to receive dividends from our airport services business, airport parking business and district energy business through our directly owned holding company Macquarie Infrastructure Company Inc. (“MIC Inc.”) for all of our businesses based in the United States. We will receive interest and principal on our subordinated loans to, and dividends from, our toll road business and dividends from our investments in Macquarie Communications Infrastructure Group (“MCG”) and South East Water (“SEW”) through directly owned holding companies that we have formed to hold our interest in each business and investment.

Distributions received from our businesses and investments net of taxes, are available first to meet management fees and corporate overhead expenses then to fund dividend payments by the Company to the Trust for payment to holders of trust stock. Base and performance management fees payable to our Manager are allocated between the Company and the directly owned subsidiaries based on the Company’s internal allocation policy.

On May 14, 2005 our Board of Directors declared a dividend of $0.50 per share for the quarter ended March 31, 2005, and an additional dividend of $0.0877 per share for the period ended December 31, 2004. The dividend payments were made on June 7, 2005 to holders of record on June 2, 2005. On August 8, 2005, our Board of Directors declared a dividend of $0.50 per share for the quarter ended June 30, 2005. The dividend payments were made on September 9, 2005 to holders of record on September 6, 2005. Additionally, on November 7, 2005, our Board of Directors declared a dividend of $0.50 per share for the quarter ended September 30, 2005, payable on December 9, 2005 to holders of record on December 6, 2005.

Tax Treatment of Distributions

At the time of our initial public offering (“IPO”), we anticipated that substantially all of the portion of our regular distributions that are treated as dividends for US federal income tax purposes should qualify for taxation at the lower US federal income tax rate currently applicable to qualified dividend income (currently a maximum of 15%). We now anticipate that in 2005 substantially all of the distributions from MIC Inc. to the Company, the Trust and ultimately the holders of our trust stock are likely to be treated as return of capital for US federal income tax purposes rather than as qualified dividend income. Distributions to holders of our trust stock that are treated as return of capital for US federal income tax purposes are generally not taxable in the hands of holders to the extent that the total amount of such distributions received does not exceed the holders tax basis in the trust stock. Instead such distributions that are not in excess of the holder’s tax basis in the trust stock will reduce such holder’s tax basis in the trust stock resulting in more capital

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gain or less capital loss upon ultimate disposal of the trust stock. We currently estimate that distributions from MIC Inc. will be between $20 million and $30 million in 2005, representing from 45% to 55% of the total distributions expected to be received by the Company from our businesses and investments in calendar year 2005. In addition, we expect that the dividends we have received from SEW in 2005 amounting to $8.5 million, estimated to be between 15% and 20% of these total distributions, will not qualify for the reduced tax rates applicable to qualified dividend income. As a consequence, we anticipate that the portion of our distributions for 2005 that are treated as dividends for US federal income tax purposes will be lower than expected, and that the portion of our distributions that will be treated as return of capital for US federal income tax purposes will be higher than expected. We further expect that the portion of our distributions that are treated as dividends for US federal income tax purposes and characterized as qualified dividend income will be lower than expected (while still comprising a majority of the portion of our distributions treated as dividends for US federal income tax purposes).

Beyond 2005, the portion of our distributions that will be treated as dividends or return of capital for US federal income tax purposes is subject to a number of uncertainties. We currently anticipate that substantially all of the portion of our regular distributions that are treated as dividends for US federal income tax purposes should be characterized as qualified dividend income.

The IPO and Completed Acquisitions

On December 21, 2004, we completed our IPO and concurrent private placement, issuing a total of 26,610,000 shares of trust stock at a price of $25.00 per share. Total gross proceeds were $665.3 million before offering costs and underwriting fees of $51.6 million. MIMUSA purchased two million shares ($50 million) of the total shares outstanding, through a private placement. The majority of the proceeds were used to acquire our initial infrastructure businesses and investment.

We acquired our airport services, district energy and toll road businesses and made our investments in SEW and MCG on December 22, 2004 and acquired our airport parking business on December 23, 2004. These acquisitions were effected by purchasing the shares of North America Capital Holding Company (“NACH”), Macquarie Airports North America, Inc. (“MANA”), Macquarie District Energy Holdings, LLC (“MDEH”), Macquarie Americas Parking Corporation (“MAPC”), Macquarie Yorkshire Limited (“MYL”), stapled securities in MCG and ordinary shares and Preferred Equity Certificates, or PECs, in Macquarie Luxembourg. On January 14, 2005 we acquired General Aviation Holdings, LLC (“GAH”), which became a subsidiary of NACH. Consequently, the results of GAH from the date of its acquisition are reflected in NACH’s results of operations for the quarter and nine months ended September 30, 2005. On August 12, 2005, Macquarie FBO Holdings, LLC , a wholly owned subsidiary of MIC Inc., acquired all of the membership interests in Eagle Aviation Resources, Ltd. (“EAR”), a Nevada limited liability company doing business as Las Vegas Executive Air Terminal. Consequently, the results of EAR from the date of its acquisition are reflected in the airport services business’ results of operations for the quarter and nine months ended September 30, 2005.

The purchases of our airport services, airport parking and district energy businesses were recorded by us using the purchase method of accounting, due to our ability to control each business. MCG is accounted for as an available for sale investment and SEW is recorded under the cost method of accounting. Macquarie Yorkshire, through its 50% ownership of Connect M1-A1 Holdings Limited, or CHL, effectively owns 50% of Connect M1-A1 Limited. Our investment in CHL is accounted for under the equity method of accounting.

Pending Acquisitions

On August 17, 2005, we entered into a joinder agreement with k1 Ventures Limited, K-1 HGC Investment, L.L.C. (together with k1 Ventures, the “K1 Parties”), and Macquarie Investment Holdings Inc. (“MIHI”) and a related assignment agreement with MIHI. Under these agreements, we assumed all of MIHI’s rights and obligations as a Buyer under a purchase agreement between MIHI and the K1 Parties for no additional consideration other than providing MIHI with an indemnification for the liabilities, cost and expenses it has incurred as “Buyer” under the purchase agreement. The purchase agreement provides for the acquisition by the Buyer of, at the option of k1 Ventures, either 100% of the interests in HGC Investment or 100% of the membership interests of HGC Holdings, L.L.C.

HGC Investment owns a 99.9% non-managing membership interest in HGC Holdings, a Hawaii limited liability company, and has the right to acquire the remaining membership interest in HGC Holdings. HGC Holdings is the sole member of The Gas Company, L.L.C., a Hawaii limited liability company which owns and operates the sole regulated gas distribution business in Hawaii as well as a propane sales and distribution business in Hawaii.

The purchase agreement provides for the payment in cash of a base purchase price of $238 million (subject to working capital and capital expenditure adjustments) with no assumed interest-bearing debt. The Company currently expects working capital and capital expenditure adjustments to add approximately $12 million to the total purchase price. In addition to the purchase price, it is anticipated that approximately a further $9 million will be paid to cover transaction costs. We expect to finance the acquisition, including an initial up-front deposit of $12.2 million, with $160 million of future subsidiary level debt and the remainder from proceeds from the proposed refinancing of our airport services segment discussed below or other sources of available cash. Absent an intervening use for the

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proceeds from this refinancing, the Company does not intend to issue equity in the public markets to complete the acquisition of The Gas Company.

Due to the regulatory and other approvals required to complete the transaction, we do not expect to be able to close the transaction prior to late in the second quarter or third quarter of 2006. If consummated, we expect that the acquisition would be immediately yield accretive.

The Gas Company has filed an Annual Report of its financial condition for the year ended December 31, 2004 with the Hawaii Public Utilities Commission, or HPUC, which included the following unaudited financial information. We are including this publicly available information because we believe it provides a general understanding of the historical results of The Gas Company. However, we have not independently verified this information. Furthermore, according to the filing this information was produced in conformity with accounting standards for regulated utilities, which may not be consistent with U.S. Generally Accepted Accounting Principles applicable to non-utility businesses.

According to the filing with the HPUC, the regulated gas utility business of The Gas Company produced pre-tax, pre-interest net income of $11.3 million and EBITDA of $15.0 million for the year ended December 31, 2004. The non-utility gas distribution business produced pre-tax, pre-interest net income of $9.5 million for the same period. EBITDA for the non-utility gas distribution business is not presented in the HPUC filing. EBITDA for the gas utility business should not be viewed as an indication of the performance of the non-utility business. Net asset value of the non-regulated gas distribution business was $27.7 million at December 31, 2004, compared to net asset value of the gas utility business of $99.5 million at that date. The above historical financial information should not be taken as an indication of future performance. In particular, we would expect interest expense to increase significantly following our acquisition.

The purchase agreement contains various provisions customary for transactions of this size and type, including representations, warranties and covenants with respect to the business that are subject to customary limitations. Completion of the acquisition depends on a number of conditions being satisfied by October 31, 2006, including approval by the Hawaii Public Utilities Commission of the transaction and the subsidiary level debt financing, numerous contractual consents and the expiration or early termination of any waiting period under the Hart-Scott-Rodino Antitrust Act of 1976, as amended, as well as other customary closing conditions. Failure to obtain financing would not permit us to terminate the purchase agreement. Therefore, if we do not obtain sufficient funding for the transaction, it would be required to pay liquidated damages to the seller as described below.

The purchase agreement provides for the payment of liquidated damages equal to 5% of the base purchase price if the transaction is terminated for breach prior to receipt of regulatory approvals and 10% of the base purchase price if terminated for breach thereafter. In addition, the Company would be obligated to pay a liquidated damages amount equal to 5% of the base purchase price if approval from the Hawaii Public Utilities Commission were not obtained due in whole or substantial part to the Hawaii Public Utilities Commission’s findings regarding the Company’s financial, legal or operational qualifications.

The maximum amount of indemnification payable by either party under the purchase agreement is 75% of the base purchase price, with some exceptions.

Macquarie Securities (USA) Inc. (“MSUSA”) is acting as financial advisor to us on the transaction, including in connection with the debt financing arrangements. MIHI and MSUSA are both subsidiaries of Macquarie Bank Limited, the parent company of the our Manager.

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RESULTS OF OPERATIONS

Because we acquired all of our businesses and investments in December, 2004 and thereafter, we cannot provide a comparison between our consolidated results for the quarter and nine months ended September 30, 2005 with any prior period. We have provided a comparison of the results of our operations by business segment for the quarter and nine months ended September 30, 2005 with the results of those businesses and investments (unconsolidated) for the quarter and nine months ended September 30, 2004.

Our consolidated results of operations are summarized below (in thousands):

										Period From
							Nine Months			April 13, 2004
	Quarter Ended			Quarter Ended			Ended			(inception) –
	September 30,			September 30,			September 30,			September 30,
	2005			2004			2005			2004
	(unaudited)
Revenue
Revenue from fuel sales	$	36,298		$	—		$	100,928		$	—
Service revenue		42,317			—			113,268			—
Financing and equipment lease income		1,320			—			3,993			—
		79,935			—			218,189			—
Costs and expenses
Cost of fuel sales		21,631			—			58,434			—
Cost of services		22,997			—			59,973			—
Selling, general and administrative expenses		21,243			2,023			59,147			4,604
Fees to manager		2,609			—			6,761			—
Depreciation expense		1,506			—			4,253			—
Amortization of intangibles		3,498			—			9,818			—
Operating income (loss)		6,451			(2,023	)		19,803			(4,604	)
Other income (expense)
Dividend income		116			—			6,300			—
Interest income		893			—			3,252			—
Interest expense		(8,034	)		—			(23,303	)		—
Equity in earnings and amortization charges of investee		1,954			—			2,468			—
Other income (expense), net		122			—			(533	)		—
Net income (loss) before income taxes and minority interests		1,502			(2,023	)		7,987			(4,604	)
Provision for income taxes		220			—			799			—
Net income (loss) before minority interests		1,282			(2,023	)		7,188			(4,604	)
Minority interests		(24	)		—			329			—
Net income (loss)	$	1,306		$	(2,023	)	$	6,859		$	(4,604	)

We recognized net income of $1.3 million and $6.9 million, respectively, for the quarter and nine months ended September 30, 2005. Our airport services business contributed $1.8 million and $5.0 million, respectively, of net income. We recorded net income of $2.0 million and $2.5 million for the quarter and nine months ended September 30, 2005, respectively, from our 50% equity investment in CHL, net of amortization of $1.2 million and $3.6 million for the same periods.

Our district energy business earned net income of $2.0 million and $1.7 million, respectively, in the quarter and nine months ended September 30, 2005.

Our airport parking business had net losses of approximately $284,000 and $739,000 for the quarter and nine months ended September 30, 2005, respectively.

We also recorded $2.6 million in base management fees earned by our Manager for the quarter ended September 30, 2005. Included in our results is an expense of $1.7 million in the quarter related to an unsuccessful acquisition bid. The cost will be funded from our general corporate reserves established at the IPO.

We have included EBITDA, a non-GAAP financial measure, on both a consolidated basis as well as for each segment as we consider it to be an important measure of our overall performance. We believe EBITDA provides additional insight into the performance of our operating companies and our ability to service our obligations and support our ongoing dividend policy.

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A reconciliation of net income (loss) to earnings before interest, taxes, depreciation and amortization (“EBITDA”) is provided below (in thousands):

						Nine Months		April 13, 2004
	Quarter Ended		Quarter Ended			Ended		(inception) –
	September 30,		September 30,			September 30,		September 30,
	2005		2004			2005		2004
	(unaudited)
Net income (loss)	$	1,306	$	(2,023	)	$	6,859	$	(4,604	)
Interest expense, net		7,141		—			20,051		—
Income taxes		220		—			799		—
Depreciation (1)		3,491		—			10,123		—
Amortization (2)		3,498		—			9,818		—
EBITDA	$	15,656	$	(2,023	)	$	47,650	$	(4,604	)

(1)	Includes depreciation expense of $2.0 million for the quarter ended September 30, 2005 and $5.9 million for the nine months ended September 30, 2005 for the airport parking business and the district energy business which is included in cost of services on our consolidated condensed statement of operations.
(2)	Does not include $1.2 million and $3.6 million of amortization expense related to intangible assets in connection with our acquisition of our toll road business for the quarter and the nine months ended September 30, 2005, respectively.

BUSINESS SEGMENT OPERATIONS

Airport Services Business

Prior to the current quarter, the airport services business consisted of two reportable segments, Atlantic and AvPorts. These businesses are currently being integrated and managed together. Therefore, they are now combined into a single reportable segment. Results for prior periods have been restated to reflect the new combined segment.

The following section summarizes the historical consolidated financial performance of our airport services business for the quarter and nine months ended September 30, 2005. Information relating to existing locations in 2005 represents the results of our airport services business excluding the results of GAH and EAR. The comparative information under existing locations and total for the quarter and nine months ended September 30, 2004 represent the results of operations of Executive Air Support, Inc., the holding company for our Atlantic business, and MANA, the holding company for our AvPorts business, prior to our acquisition on December 22, 2004. The acquisitions column below and total 2005 quarter and nine months results include the operating results of GAH from the acquisition date of January 14, 2005, and operating results of EAR from the acquisition date of August 12, 2005.

Key Factors Affecting Operating Results

• Contribution of positive operating results from two new FBOs (GAH) in California acquired in January 2005 and one FBO in Las Vegas acquired in August 2005

• Higher average dollar per gallon fuel margins at existing locations

• Continued increases in fuel prices

• Higher rental income from new hangers

• No significant effect on our result from recent hurricanes

• High 2005 first quarter de-icing revenues

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Quarter Ended September 30, 2005 Compared to Quarter Ended September 30, 2004

($ in thousands)	Existing Locations											Acquisitions		Total
(unaudited)	2005		2004			Change						2005		2005		2004			Change
	$		$			$			%			$		$		$			$			%
Fuel revenue		29,452		25,131			4,321			17.2			6,846		36,298		25,131			11,167			44.4
Non-fuel revenue		11,045		9,045			2,000			22.1			2,371		13,416		9,045			4,371			48.3
Total revenue		40,497		34,176			6,321			18.5			9,217		49,714		34,176			15,538			45.5
Cost of revenue—fuel		17,642		13,872			3,770			27.2			3,989		21,631		13,872			7,759			55.9
Cost of revenue—non-fuel		1,538		1,436			102			7.1			259		1,797		1,436			361			25.1
Total cost of revenue		19,180		15,308			3,872			25.3			4,248		23,428		15,308			8,120			53.0
Fuel gross profit		11,810		11,259			551			4.9			2,857		14,667		11,259			3,408			30.3
Non- fuel gross profit		9,507		7,609			1,898			24.9			2,112		11,619		7,609			4,010			52.7
Gross profit		21,317		18,868			2,449			13.0			4,969		26,286		18,868			7,418			39.3
Selling, general and administrative expenses		13,204		14,251			(1,047	)		(7.4	)		2,622		15,826		14,251			1,575			11.1
Depreciation and amortization		3,025		3,358			(333	)		(9.9	)		1,025		4,050		3,358			692			20.6
Operating income		5,088		1,259			3,829			304.1			1,322		6,410		1,259			5,151			409.1
Other expense		69		1,118			(1,049	)		(93.8	)		—		69		1,118			(1,049	)		(93.8	)
Interest expense, net		2,591		4,493			(1,902	)		(42.3	)		668		3,259		4,493			(1,234	)		(27.5	)
Provision (benefit) for income taxes		971		(1,331	)		2,302			(173.0	)		262		1,233		(1,331	)		2,564			(192.6	)
Income (loss) from continuing operations(1)		1,457		(3,021	)		4,478			148.2			392		1,849		(3,021	)		4,870			161.2
Reconciliation of income from continuing operations to EBITDA:
Income (loss) from continuing operations(1)		1,457		(3,021	)								392		1,849		(3,021	)
Interest expense, net		2,591		4,493									668		3,259		4,493
Provision (benefit) for income taxes		971		(1,331	)								262		1,233		(1,331	)
Depreciation and amortization		3,025		3,358									1,025		4,050		3,358
EBITDA		8,044		3,499			4,545			129.9			2,347		10,391		3,499			6,892			197.0

(1) Discontinued operations consist of income from Atlantic’s charter flight business which was sold in 2003.

     Revenue and Gross Profit

Most of our revenue and gross profit is generated through fueling general aviation aircraft at our 19 fixed base operations around the United States. This revenue is categorized according to who owns the fuel we use to service these aircraft. If we own the fuel, we record our cost to purchase that fuel as cost of revenue-fuel. Our corresponding fuel revenue is our cost to purchase that fuel plus a margin. We generally pursue a strategy of keeping dollar margins relatively steady, thereby passing any increase in fuel prices to the customer. We also have into-plane arrangements whereby we fuel aircraft with fuel owned by another party. We collect a fee for this service that is recorded as non-fuel revenue. Other non-fuel revenue includes various services such as hangar rentals, de-icing and airport services. Cost of revenue—non-fuel includes our cost, if any, to provide these services.

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The key factors for our revenue and gross profit are fuel volume and dollar margin per gallon. This applies to both fuel and into-plane revenue. Our customers will occasionally move from one category to the other. Therefore, we believe discussing our fuel and non-fuel revenue and gross profit and the related key metrics on a combined basis provides a more meaningful analysis of our airport services business.

Our total revenue and gross profit growth was due to several factors:

• Inclusion of the results of GAH and EAR from the respective dates of their acquisitions;

• Rising cost of fuel, which we pass on to customers. To date we have not seen any material negative impact on demand for fuel due to the increases in fuel costs;

• An increase in average dollar per gallon fuel margins at our existing locations, resulting largely from a higher proportion of transient customers, which generally pay higher margins; and

• Higher rental income due to new hangars at our Chicago and Burlington locations that opened in 2004 and 2005 respectively.

Our operations at New Orleans, LA and Gulfport, MS were impacted by hurricane Katrina. Some of our hangar and terminal facilities were damaged. However, our results for the quarter were not significantly affected by this or any other recent hurricane. We believe that we have an appropriate level of insurance coverage to repair or rebuild our facilities and to cover us for any business interruption we experience in the near term. We anticipate that combined traffic at these facilities in 2006 may be lower than in 2005 as travel to New Orleans and Gulfport has slowed. However, we believe that this will not have a significant effect on our results overall in 2006 and thereafter.

     Operating Expenses

The decrease in selling, general and administrative expenses for the existing locations is due to transaction costs of $1.2 million incurred by Executive Air Support associated with the sale of the company in July 2004.

The decrease in depreciation and amortization expense at existing locations is primarily due to the expiration in November 2004 of a two year non-compete agreement. This decrease was partially offset by higher amortization expense due to the increase of NACH’s and MANA’s net assets to fair value upon their acquisitions.

     Other Expense

The decrease in other expense is due to $981,000 incurred in 2004 in connection with financing required to partially fund NACH’s acquisition of Atlantic in 2004.

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     Interest Expense, Net

The decrease in interest expense was due to Atlantic expensing of unamortized prepaid financing costs and terminating a hedge instrument at the time of acquisition by NACH in July 2004 and the conversion of MANA’s subordinated debt to equity in June 2005. This was partially offset by an increase in overall debt levels approximately 75% of which is hedged as shown in the following table (in thousands).

Total Debt:

	As of September 30,
	2005		2004
Term debt		196,500		36,000
Bridge debt		—		130,000
Subordinated (intercompany) debt		—		12,000

Hedges at September 30, 2005:

	Hedge 1			Hedge 2			Hedge 3			Hedge 4			Hedge 5
Notional Amount		97,500			97,500			22,875			22,875			27,000
Fixed Rate		3.35	%		4.57	%		3.73	%		4.53	%		3.55	%
Effective Date	Oct 04			Sep 07			Jan 05			Sep 07			Nov 02
Expires	Sep 07			Oct 09			Sep 07			Oct 09			Nov 07

We intend to refinance our two existing debt facilities at our airport services business with a single debt facility. This new debt facility is currently expected to provide for aggregate term loan borrowings of $300 million and a $5 million revolver, of which we would expect to initially draw $301 million. The facility is expected to have a term of 5 years. Amounts borrowed under the facility are expected to bear interest at the rate of 1.75% per annum over LIBOR for the first three years and 2.00% per annum over LIBOR in the fourth and fifth years. Currently our existing debt facilities bear interest at a weighted average margin of 2.75% over LIBOR. We intend to have interest rate swap arrangements in place for a minimum of 75% of the aggregate term loan. See “Liquidity and Capital Resources¯Commitments and Contingencies” for more details on this proposed refinancing.

     EBITDA

The substantial increase in EBITDA from existing locations is due to increased dollar fuel margins combined with the operating and other expenses associated with the sale and financing of NACH’s acquisition of Atlantic in July 2004.

Excluding expenses associated with the sale and financing of NACH’s acquisition of Atlantic in July 2004, EBITDA at existing locations would have increased 41.8%.

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Nine Months Ended September 30, 2005 Compared to Nine Months Ended September 30, 2004

	Existing Locations											Acquisitions		Total
($ in thousands)	2005		2004			Change						2005		2005		2004			Change
(unaudited)	$		$			$			%					$		$			$			%
Fuel revenue		83,982		75,017			8,965			12.0			16,946		100,928		75,017			25,911			34.5
Non-fuel revenue		35,671		30,454			5,217			17.1			4,838		40,509		30,454			10,055			33.0
Total revenue		119,653		105,471			14,182			13.5			21,784		141,437		105,471			35,966			34.1
Cost of revenue-fuel		48,721		39,270			9,451			24.1			9,714		58,435		39,270			19,165			48.8
Cost of revenue non-fuel		5,333		5,019			314			6.3			566		5,899		5,019			880			17.5
Total cost of revenue		54,054		44,289			9,765			22.1			10,280		64,334		44,289			20,045			45.3
Fuel gross profit		35,261		35,747			(486	)		(1.4	)		7,232		42,493		35,747			6,746			18.9
Non- fuel gross profit		30,338		25,435			4,903			19.3			4,272		34,610		25,435			9,175			36.1
Gross profit		65,599		61,182			4,417			7.2			11,504		77,103		61,182			15,921			26.0
Selling, general and administrative expenses		40,451		40,882			(431	)		(1.1	)		5,907		46,358		40,882			5,476			13.4
Depreciation and amortization		9,075		8,459			616			7.3			2,146		11,221		8,459			2,762			32.7
Operating income		16,073		11,841			4,232			35.7			3,451		19,524		11,841			7,683			64.9
Other expense		1,015		6,441			(5,426	)		(84.2	)		—		1,015		6,441			(5,426	)		(84.2	)
Interest expense, net		8,038		8,453			(415	)		4.9			1,915		9,953		8,453			1,500			17.8
Provision (benefit) for income taxes		2,957		(506	)		3,463			(684.4	)		647		3,604		(506	)		4,110			(812.3	)
Income from continuing operations		4,063		(2,547	)		6,610			259.5			889		4,952		(2,547	)		7,499			294.4
Reconciliation of income from continuing operations to EBITDA
Income from continuing operations (1)		4,063		(2,547	)								889		4,952		(2,547	)
Interest expense, net		8,038		8,453									1,915		9,953		8,453
Provision for income taxes		2,957		(506	)								647		3,604		(506	)
Depreciation and
amortization		9,075		8,459									2,146		11,221		8,459
EBITDA		24,133		13,859			10,274			74.1			5,597		29,730		13,859			15,871			114.5

(1) Discontinued operations consist of income from Atlantic’s charter flight business which was sold in 2003.

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          Revenue and Gross Profit

Our total revenue and gross profit growth was due several factors:

•	Inclusion of the results of GAH and EAR from the respective dates of their acquisitions;
•	Rising cost of fuel, which we pass on to customers;
•	An increase in dollar per gallon fuel margins at our existing locations, resulting largely from a higher proportion of transient customers, which generally pay higher margins;
•	Higher rental income due to new hangars at our Chicago and Burlington locations; and
•	Increase in de-icing revenue in the northeastern locations during first quarter of 2005 due to colder weather conditions.
	Operating Expenses

Substantially all of the increase in selling, general and administrative expenses was due to new locations acquired. The decrease in operating expenses for the existing locations is due to transaction costs of $1.2 million incurred by Executive Air Support associated with the sale of the company in July 2004. This decrease was partially offset by increased professional fees and the implementation of a stock appreciation rights plan for certain employees.

The increase in depreciation and amortization was due to the recording of NACH’s and MANA’s net assets to fair value upon their acquisitions. This increase was partially offset by the expiration in November 2004 of a two year non-compete agreement.

          Other Expense

The decrease in other expense is primarily due to the recognition of expense attributable to outstanding warrants that were subsequently cancelled in connection with the acquisition of Atlantic by NACH in July 2004, prior to our acquisition of NACH. Also included in 2004 are $981,000 of costs associated with debt financing required to partially fund NACH’s acquisition of Atlantic. In 2005, NACH incurred underwriting fees of $913,000 in relation to the acquisition of GAH that were funded with proceeds from our IPO.

          Interest Expense, Net

The increase in net interest expense is due to the increase in debt level. Offsetting this increase, in 2004 NACH expensed unamortized prepaid financing costs and terminated a hedge instrument at the time of the acquisition of Atlantic by NACH.

          EBITDA

The substantial increase in EBITDA from existing locations is due to increased dollar fuel margins combined with the operating and other expenses associated with the sale and financing of the acquisition of Atlantic by NACH, in July 2004.

Excluding these expenses EBITDA at existing locations would have increased 13.3%.

Airport Parking Business

In the following discussion, new locations refer to locations in operation during the respective quarter and nine-month periods of 2005 but not in operation throughout the corresponding 2004 period. Comparable locations refer to locations in operation throughout the respective quarter or nine-month period in both 2004 and 2005. For the quarter ended September 30, 2005, the new locations were St. Louis and Priority-Philadelphia. These locations were also new locations for the nine-month period ended September 30, 2005, along with Newark — Haynes Avenue and Oakland Pardee, which were not in operation for the full nine months ended September 20, 2004.

In October 2005, we acquired a number of additional parking facilities, as described in Note 15 to our financial statements and under “Liquidity and Capital Resources¯Commitments and Contingencies” below, which will be reflected in the results of our airport parking business for the fourth quarter of 2005.

Key Factors Affecting Operating Results

Key factors influencing operating results were as follows:

• An increase in cars out at comparable locations plus revenue at new locations

• Reduced discounting and promotional activity contributed to the 1.5% increase in average revenue per car out for comparable locations during the quarter

29

• Higher EBITDA reflects better operating margins at our comparable locations and lower operating losses related to new locations

          Quarter Ended September 30, 2005 Compared to Quarter Ended September 30, 2004

Income Statement Data and EBITDA

	Quarter Ended September 30,						Change
($ in thousands) (unaudited)	2005			2004			$			%
Income Statement Data and EBITDA:
Revenue	$	14,460		$	12,927		$	1,533			11.9
Direct expenses		10,794			9,865			929			9.4
Gross profit		3,666			3,062			604			19.7
Selling, general and administrative expenses		1,183			1,109			74			6.7
Amortization of intangibles		609			852			(243	)		(28.5	)
Operating income		1,874			1,101			773			70.2
Interest expense, net		(2,289	)		(2,141	)		148			6.9
Other expense		(19	)		(24	)		5			(20.8	)
Minority interest in loss (income) of consolidated subsidiaries		150			331			(181	)		(54.7	)
Net (loss) income	$	(284	)	$	(733	)	$	449			(61.3	)
Reconciliation of net (loss) income to EBITDA
Interest expense, net		2,289			2,141			148			6.9
Depreciation		555			492			63			12.8
Amortization of intangibles		609			852			(243	)		(28.6	)
EBITDA	$	3,169		$	2,752		$	417			15.1
Operating Data:
Revenue:
New locations	$	515		$	—
Comparable locations	$	13,945		$	12,927
Comparable locations increase		9.4	%
Cars Out(1):
New locations		15,438			—
Comparable locations		358,317			328,546
Comparable locations increase		9.1	%
Average Revenue per Car Out:
New locations	$	34.66		$	—
Comparable locations	$	39.48		$	38.88
Comparable locations increase		1.5	%
Average Overnight Occupancy(2)
New locations		761			—
Comparable locations		15,654			15,752
Comparable locations decrease		(0.6	)%
Gross Profit Percentage:
New locations		17.7	%		—
Comparable locations		25.6	%		22.7	%

(1) Cars out refers to the total number of customers exiting during the period.

(2) Average overnight occupancy refers to aggregate average daily occupancy measured for all locations at the lowest point of the day, which does not reflect turnover and intra-day activity.

30

     Revenue

Revenue increased due to the addition of two new locations and growth from comparable locations. Revenue in the third quarter of 2004 included a cash settlement of $184,000 from an early contract termination.

The increase in cars out was driven by a greater mix of business travel resulting in fewer average days per visit. The increase in average revenue per car out was due to lower levels of discounting and price increases at certain locations. Although the number of cars using our facilities has increased over 2004 at the majority of our locations, our airport parking business as a whole has sufficient capacity to accommodate further growth. At locations where we are operating at peak capacity intra day, we continue to evaluate our available options to expand capacity of these locations, including the use of additional overflow facilities and car lifts. We have begun several of these capacity expansion projects.

In addition we have experienced some increased competition in several of our locations which may put short term pressure on pricing. We would expect to focus our promotional and service efforts in these markets to address this increased competition.

     Direct Expenses

Direct expenses for the quarter ended September 30, 2005 increased mainly due to additional costs associated with operating two new locations which totaled approximately $400,000 for the quarter. Direct expenses include rent in excess of lease, a non-cash item, in the amount of $495,000 and $316,000 for the quarters ended September 30, 2005 and 2004, respectively. Direct expenses were also affected by the following factors:

• Lower advertising expenses reflecting the cost of the grand opening of a new location in Oakland, California during the third quarter of 2004;

• Higher shuttle costs in the third quarter of 2005 due to the increased cost of fuel; and

• Higher insurance claim activity related to increased theft at certain of our locations. We have increased security measures at these locations which, at present, has reversed the increase in thefts.

Our national operations team is in the process of assessing the viability of fuel surcharges at selected locations and investigating additional security measures.

Selling, General and Administrative Expenses

Selling, general and administrative expenses increased as a result of higher professional fees, strategic planning initiatives and payroll costs associated with the creation of a national operations team to facilitate the sharing of ideas and solutions across locations.

     Amortization of Intangibles

Amortization decreased largely as a result of the accelerated amortization of customer contracts which expired in 2004, partially offset by an increase in the fair value of the assets acquired when MAPC was purchased by us on December 23, 2004.

     Interest Expense, Net

Interest expense in 2005 increased due to higher LIBOR rates, partially offset by the elimination of deferred finance cost amortization resulting from our acquisition. We have an interest rate hedge in place which effectively caps our interest rate when the 30-day LIBOR rate reaches 4.5%.

     EBITDA

Excluding the non-cash rent in excess of lease and the 2004 contract settlement discussed above, EBITDA would have increased by 27% in the third quarter of 2005, compared to the prior year period.

31

Nine Months Ended September 30, 2005 compared to the Nine Months Ended September 30, 2004

($ in thousands) (unaudited)	Nine Months Ended September 30,						Change
	2005			2004			$			%
Income Statement Data and EBITDA:
Revenue	$	42,044		$	38,046		$	3,998			10.5
Direct expenses		31,088			27,664			3,424			12.4
Gross profit		10,956			10,382			574			5.5
Selling, general and administrative expenses		3,418			3,229			189			5.9
Amortization of intangibles		1,827			2,692			(865	)		(32.1	)
Operating income		5,711			4,461			1,250			28.0
Interest expense, net		(6,692	)		(6,107	)		(585	)		9.6
Other expense		(22	)		(34	)		12			(35.3	)
Minority interest in loss (income) of consolidated subsidiaries		264			557			(293	)		(52.6	)
Net (loss) income	$	(739	)	$	(1,123	)	$	384			(34.2	)
Reconciliation of net (loss) income to EBITDA
Interest expense, net		6,692			6,107			585			9.6
Depreciation		1,604			1,638			(34	)		(2.1	)
Amortization of intangibles		1,827			2,692			(865	)		(32.1	)
EBITDA	$	9,384		$	9,314		$	70			0.8
Operating Data:
Revenue:
New locations	$	3,224		$	297
Comparable locations	$	38,820		$	37,749
Comparable locations increase		2.8	%
Cars Out:
New locations		93,852			5,014
Comparable locations		1,029,834			968,941
Comparable locations increase		6.3	%
Average Revenue per Car Out:
New locations	$	35.65		$	34.16
Comparable locations	$	38.55		$	39.26
Comparable locations increase		(1.8	)%
Average Overnight Occupancy:
New locations		1,553			1,317
Comparable locations		14,413			14,209
Comparable locations increase		1.4	%
Gross Profit Percentage:
New locations		(26.7	)%		(638.4	)%
Comparable locations		30.6	%		33.7	%
Location:
New locations		4			2
Comparable locations		21			21

     Revenue

Revenue increased due to the addition of four new locations in 2005 and growth from comparable locations. Revenue for the nine months of 2004 included a cash settlement of $686,000 from an early contract termination. Cars out at our four new locations were primarily responsible for our 15.4% increase in overall cars out for the nine months. Certain discounting and pricing strategies that had resulted in lower revenue per car out during the first half of the year were adjusted during the third quarter. These lower levels of discounting and higher prices in certain markets resulted in improved revenue per car out during the third quarter and resulted in revenue per car out for the nine month 2005 period being comparable to the 2004 period.

32

          Direct Expenses

Direct expenses for the nine months ended September 30, 2005 increased mainly due to additional costs associated with operating four new locations which totaled $4.1 million. Direct expenses include rent in excess of lease which is non cash in the amount of $1,540,000 and $680,000 for the nine months ended 2005 and 2004, respectively. The other factors affecting direct expenses are:

• Lower advertising expenses reflecting the cost of the grand opening of a new location in Oakland, California during the third quarter of 2004;

• Higher shuttle costs in the third quarter of 2005 due to the increased cost of fuel; and

• Higher insurance claim activity related to increased theft at certain of our locations.

          Selling, General and Administrative Expenses

Selling, general and administrative expenses increased as a result of higher professional fees, strategic planning initiatives and payroll costs associated with the creation of a national operations team.

          Amortization of Intangibles

Amortization decreased largely as a result of the accelerated amortization of customer contracts which expired in 2004, partially offset by an increase in the fair value of the assets acquired when MAPC was purchased by us on December 23, 2004.

          Interest Expense, Net

Interest expense in 2005 increased due to higher LIBOR rates, partially offset by the elimination of deferred finance cost amortization resulting from our acquisition. We have an interest rate hedge in place which effectively caps our interest rate when the 30-day LIBOR rate reaches 4.5%.

          EBITDA

Excluding the aforementioned non-cash deferred rent and the contract settlement, EBITDA would have increased by 17.4% in the nine months ended September 30, 2005 compared to the prior year period.

District Energy Business

The following table compares the historical consolidated financial performance of MDEH for the quarter and nine months ended September 30, 2005 to the quarter and nine months ended September 30, 2004.

We have combined the following results of operations:

• the predecessor Thermal Chicago Corporation from January 1, 2004 through June 30, 2004, prior to its acquisition by MDEH; and

• MDEH from January 1, 2004 through September 30, 2004.

For the quarter and nine months ended September 30, 2005, the results of operations includes ETT Nevada Inc. (“ETT Nevada”), the 75% owner of Northwind Aladdin LLC, which was indirectly acquired by MDEH on September 29, 2004. The results for ETT Nevada are not included for the quarter and nine months ended September 30, 2004.

     Key Factors Affecting Operating Results

Key factors affecting the quarter and nine months ended September 30, 2005 compared to the quarter and nine months ended September 30, 2004 were as follows:

• Capacity revenue generally increased in-line with inflation

• Consumption ton-hours sold were higher primarily due to above average temperature in Chicago from June to September

• EBITDA was higher due to the incremental margin from additional consumption ton-hours sold

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Quarter Ended September 30, 2005 Compared to Quarter Ended September 30, 2004

	Quarter Ended September 30,
	ETT
($ in thousands)	MDEH Excluding ETT Nevada												Nevada			Consolidated
	2005			2004			Change						2005			2005			2004			Change
(unaudited)	$			$			$			%			$			$			$			$			%
Cooling capacity revenue		4,179			4,099			80			2.0			—			4,179			4,099			80			2.0
Cooling consumption revenue		8,786			7,320			1,466			20.0			976			9,762			7,320			2,442			33.4
Other revenue		249			257			(8	)		(3.1	)		251			500			257			243			94.6
Finance lease revenue		320			332			(12	)		(3.6	)		1,000			1,320			332			988			297.6
Total revenue		13,534			12,008			1,526			12.7			2,227			15,761			12,008			3,753			31.3
Direct expenses — electricity		5,288			4,665			623			13.4			829			6,117			4,665			1,452			31.1
Direct expenses — other (1)		3,942			3,901			41			1.1			347			4,289			3,901			388			9.9
Direct expenses — total		9,230			8,566			664			7.8			1,176			10,406			8,566			1,840			21.5
Gross profit		4,304			3,442			862			25.0			1,051			5,355			3,442			1,913			55.6
Selling, general and administrative expenses		767			619			148			23.9			59			826			619			207			33.4
Amortization of intangibles		333			340			(7	)		(2.1	)		12			345			340			5			1.5
Operating income		3,204			2,483			721			29.0			980			4,184			2,483			1,701			68.5
Interest expense, net		(1,573	)		(3,782	)		2,209			(58.4	)		(490	)		(2,063	)		(3,782	)		1,719			(45.5	)
Other income		34			44			(10	)		(22.7	)		—			34			44			(10	)		(22.7	)
Benefit for income taxes		—			621			(621	)		(100.0	)		—			—			621			(621	)		(100.0	)
Minority interest		—			—			—			—			(125	)		(125	)		—			(125	)		—
Net income (loss)		1,665			(634	)		2,299			362.6			365			2,030			(634	)		2,664			420.2
Reconciliation of net income (loss) to EBITDA
Interest expense, net		1,573			3,782			(2,209	)		(58.4	)		490			2,063			3,782			(1,719	)		(45.5	)
Benefit for income taxes		—			(621	)		621			(100.0	)		—			—			(621	)		621			(100.0	)
Depreciation		1,430			1,288			142			11.0			—			1,430			1,288			142			11.0
Amortization of intangibles		333			340			(7	)		(2.1	)		12			345			340			5			1.5
EBITDA		5,001			4,155			846			20.4			867			5,868			4,155			1,713			41.2

(1) Includes depreciation expense of $1.4 million and $1.3 million for the quarters ended September 30, 2005 and 2004, respectively and $4.3 million and $2.7 million for the nine months ended September 30, 2005 and 2004, respectively.

          Gross Profit

Gross profit increased at Thermal Chicago primarily due to an increase in consumption ton-hours sold of 19.8% resulting from above average temperature in Chicago during the third quarter of 2005. Scheduled increases in contract consumption rates and annual inflation-related increases of contract capacity rates in accordance with the terms of existing customer contracts also increased revenue.

          Selling, General and Administrative Expenses

Selling, general and administrative expenses excluding ETT Nevada increased primarily due to the hiring of additional management personnel.

          Interest Expense, Net

The substantial decrease in net interest expense was due to payments in the third quarter of 2004 relating to financing the acquisition of Thermal Chicago by MDEH. Net interest expense for the quarter ended September 30, 2005 primarily relates to the interest expense associated with long term debt of $120 million outstanding on September 30, 2005. Net interest expense for the quarter ended September 30, 2004 consisted of $1.9 million related to the termination of an interest rate swap that was used to hedge MDE’s long term interest rate risk and $1.9 million related to a bridge loan utilized to fund a portion of the acquisition of Thermal Chicago by MDEH pending issuance of notes in the private placement.

34

          Benefit for income taxes

The tax benefit for 2004 relates directly to the loss created by the costs of financing the acquisition of Thermal Chicago.

          EBITDA

EBITDA excluding ETT Nevada increased in the third quarter of 2005 compared to the third quarter of 2004 primarily due to the incremental gross profit from additional consumption ton-hours sold.

Nine Months Ended September 30, 2005 compared to Nine Months Ended September 30, 2004

	Nine Months Ended September 30,
	ETT
	MDEH Excluding ETT												Nevada			Consolidated
($ in thousands)	2005			2004			Change						2005			2005			2004			Change
(unaudited)	$			$			$			%			$			$			$			$			%
Cooling capacity revenue		12,365			12,231			134			1.1			—			12,365			12,231			134			1.1
Cooling consumption revenue		14,872			12,555			2,317			18.5			1,926			16,798			12,555			4,243			33.8
Other revenue		804			996			(192	)		(19.3	)		748			1,552			996			556			55.8
Finance lease revenue		968			1,003			(35	)		(3.5	)		3,025			3,993			1,003			2,990			298.1
Total revenue		29,009			26,785			2,224			8.3			5,699			34,708			26,785			7,923			29.6
Direct expenses — electricity		8,920			7,765			1,155			14.9			1,478			10,398			7,765			2,633			33.9
Direct expenses — other (1)		11,585			9,800			1,785			18.2			1,002			12,587			9,800			2,787			28.4
Direct expenses — total		20,505			17,565			2,940			16.7			2,480			22,985			17,565			5,420			30.9
Gross profit		8,504			9,220			(716	)		(7.8	)		3,219			11,723			9,220			2,503			27.1
Selling, general and administrative expenses		2,310			2,751			(441	)		(16.0	)		231			2,541			2,751			(210	)		(7.6	)
Amortization of intangibles		988			360			628			174.4			35			1,023			360			663			184.2
Operating income		5,206			6,109			(903	)		(14.8	)		2,953			8,159			6,109			2,050			33.6
Interest expense, net		(4,678	)		(16,445	)		11,767			(71.6	)		(1,544	)		(6,222	)		(16,445	)		10,223			(62.2	)
Other income		100			1,438			(1,338	)		(93.0	)		231			331			1,438			(1,107	)		(77.0	)
Benefit for income taxes		—			2,987			(2,987	)		(100.0	)		—			—			2,987			(2,987	)		(100.0	)
Minority interest		—			—			—			—			(592	)		(592	)		—			(592	)		—
Net income (loss)		628			(5,911	)		6,539			110.6			1,048			1,676			(5,911	)		7,587			128.4
Reconciliation of net income (loss) to EBITDA
Interest expense, net		4,678			16,445			(11,767	)		(71.6	)		1,544			6,222			16,445			(10,223	)		(62.2	)
Benefit for income taxes		—			(2,987	)		2,987			(100.0	)		—			—			(2,987	)		2,987			(100.0	)
Depreciation		4,266			2,730			1,536			56.3			—			4,266			2,730			1,536			56.3
Amortization of intangibles		988			360			628			174.4			35			1,023			360			663			184.2
EBITDA		10,560			10,637			(77	)		(0.7	)		2,627			13,187			10,637			2,550			24.0

(1) Includes depreciation expense of $1.4 million and $1.3 million for the quarters ended September 30, 2005 and 2004, respectively and $4.3 million and $2.7 million for the nine months ended September 30, 2005 and 2004, respectively.

          Gross Profit

Gross profit at Thermal Chicago decreased primarily due to increased acquisition related depreciation expense which offset a 14.5% increase in consumption ton-hours sold as a result of above average temperature in Chicago from June to September 2005. Annual inflation-related increases of contract capacity and consumption rates in accordance with the terms of existing customer contracts offset by a credit to a customer accounted for the remaining increase. Other direct expenses increased from the nine months ended September 30, 2004 primarily due to $1.6 million of additional depreciation as a result of increase in the carrying value of assets to fair value resulting from the acquisition of Thermal Chicago by MDEH on June 30, 2004. Additionally, $239,000 relates to the timing of operations and maintenance expense for reliability and required corrective maintenance issues. We expect the timing difference in operations and maintenance expense to reverse over the remainder of the year.

35

          Selling, General and Administrative Expenses

Selling, general and administrative expenses excluding ETT Nevada decreased primarily due to the absence of 2004 expenses related to the sale of Thermal Chicago by Exelon in 2004.

          Amortization of Intangibles

Amortization of intangibles increased as a result of the increase in the carrying value of intangible assets to fair value resulting from the acquisition of Thermal Chicago by MDEH on June 30, 2004.

          Interest Expense, Net

The substantial decrease in net interest expense was due to a make-whole payment to redeem outstanding bonds prior to the acquisition of Thermal Chicago by MDEH on June 30, 2004 and other payments related to financing this acquisition. Net interest expense for the nine months ended September 30, 2005 primarily related to the interest expense associated with long term debt of $120 million outstanding at September 30, 2005. Net interest expense for the nine months ended September 30, 2004 included $10.3 million related to the make-whole payment, $2.2 million related to the termination of an interest rate swap that was used to hedge MDE long term interest rate risk pending issuance of notes in the private placement, and $1.9 million related to a bridge loan utilized to fund a portion of the acquisition of Thermal Chicago by MDEH pending issuance of the notes in the private placement, with the remainder relating to the average outstanding debt balance at June 30, 2004.

          Other income

The decrease in other income was largely due to a gain of $1.3 million from financial restructuring undertaken by Exelon prior to the sale of Thermal Chicago to MDEH in June 2004. The balance relates to a minority investor’s share of $925,000 settlement providing for the early release of escrow on the Aladdin bankruptcy. Our majority share of this amount is recorded as a purchase price adjustment.

          Benefit for income taxes

The tax benefit for 2004 was generated by the net loss incurred by Thermal Chicago prior to its sale to MDEH in June 2004 and the losses created by the costs of financing the acquisition on Thermal Chicago by MDEH.

          EBITDA

EBITDA excluding ETT Nevada decreased due to a $1.3 million financial restructuring gain in 2004. Exclusive of the gain, EBITDA would have been $1.2 million or 13.3% higher than the nine months ended September 30, 2004.

Toll Road Business

Our consolidated results related to the toll road business consist of three components:

• Our equity in the earnings of CHL, which we hold through MYL, less amortization charges, which reflect the amortization expense resulting from the increase to fair value of our investment upon our acquisition of 100% of MYL;

• Net interest income resulting from loans between us and a subsidiary of CHL; and

• Corporate selling, general and administrative expenses of MYL.

Quarter Ended September 30, 2005 Compared to Quarter Ended September30, 2004

For the quarter ended September 30, 2005, our share of the earnings of CHL less amortization expense was $2.0 million, consisting of our share of earnings of CHL of $3.2 million less amortization expense of $1.2 million. CHL recorded an increase in earnings in the third quarter primarily due to an increase in the fair value of interest rate swaps as discussed below.

Net interest income for the quarter ended September 30, 2005 was $177,000. MYL’s selling, general and administrative expense totaled $43,000 during the quarter ended September 30, 2005.

CHL, with a functional currency in pounds sterling had revenue for the quarter ended September 30, 2005 of £12.7 million, 2.4% higher than for the quarter ended September 30, 2004. This was due to a 1.25% increase in vehicle kilometers for the quarter ended September 30, 2005 compared to the quarter ended September 30, 2004 and a scheduled increase in toll bands and rates permitted

36

under concession agreement.

Direct expenses were £3.0 million, including £2.7 million of depreciation expense. Expenses for the quarter were 6.7% lower than the quarter ended September 30, 2004 due to the elimination of the technical services fee. Net income for the quarter ended September 30, 2005 was £3.5 million. This included a £400,000 increase in the value of the interest rate swaps held by CHL during the quarter due to higher interest rates.

Nine Months Ended September 30, 2005 Compared to Nine Months Ended September 30, 2004

          Net Income

For the nine months ended September 30, 2005, our share of the earnings of CHL less amortization was $2.5 million, consisting of our share of earnings of CHL of $6.1 million partially offset by amortization expense of $3.6 million.

Net interest income for the nine months ended September 30, 2005 was $592,000. MYL’s selling, general and administrative expense totaled $614,000 during the nine months ended September 30, 2005.

CHL’s revenue for the nine months ended September 30, 2005 was £36.6 million, 3.9% higher than for the nine months ended September 30, 2004. This was due to a 1.0% increase in vehicle kilometers for the nine months ended September 30, 2005 compared to the nine months ended September 30, 2004 and a scheduled increase in toll bands and rates permitted under concession agreement.

Direct expenses were £8.6 million, including £7.4 million of depreciation expense. Expenses for the nine months to September 30, 2005 were 7.5% lower than the nine months ended September 30, 2004 due to the elimination of a technical services fee. Net income for the nine months ended September 30, 2005 was £6.6 million. This included a £3.7 million decrease in the value of the interest rate swaps held by CHL during the nine month period due to lower interest rates.

Investments

          Macquarie Communications Infrastructure Group (MCG)

MCG paid a cash distribution of Australian dollar 14.4 cents per stapled security on February 14, 2005 for the six months ended December 31, 2004. We received $1.7 million net of withholding taxes. MCG paid its final distribution for the year ended June 30, 2005 of Australian dollar 14.6 cents per stapled security in August, 2005 from which we received $1.9 million. We have included $1.9 million in our net income for the nine months ended September 30, 2005.

          South East Water (SEW)

During the nine months ended September 30, 2005, we received $4.4 million in dividends from our investments in SEW. For the year ended December 31, 2005, we expect to receive total dividends from our investment in SEW of $8.5 million. Included in these expected dividends is a non-recurring component of approximately $2.6 million.

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LIQUIDITY AND CAPITAL RESOURCES

We do not intend to retain significant cash balances in excess of what is required as prudent reserves. We generally finance our businesses through subsidiary level financing arrangements. In addition, on November 11, 2005, MIC Inc., the holding company for our U.S. businesses, entered into a $250 million revolving credit facility with Citicorp North America Inc (as lender and administrative agent), Citibank NA, Merrill Lynch Capital Corporation, Credit Suisse, Cayman Islands Branch and Macquarie Bank Limited. We intend to use the revolving facility to fund acquisitions, capital expenditures and to a limited extent working capital.

MIC Inc.’s obligations under the revolving facility are guaranteed by the Company and secured by a pledge of the equity of all current and future direct subsidiaries of MIC Inc. and the Company. The terms and conditions for the revolving facility include events of default and representations and warranties that are generally customary for a facility of this type. In addition, the revolving facility includes an event of default should the Manager or another affiliate of Macquarie Bank Limited cease to act as manager.

Details of the revolving facility are as follows:

Facility size:	$250 million for loans and/or letters of credit
Term:	March 31, 2008
Interest and principal repayments:	Interest only during the term of the loan Repayment of principal at maturity, upon voluntary prepayment, or upon an event requiring mandatory prepayment.
Eurodollar rate:	LIBOR plus 1.25% per annum
Base rate:	Base rate plus 0.25% per annum
Commitment fees:	0.25% per annum on undrawn portion
Financial Covenants:	•	Ratio of MIC Inc plus MIC LLC Debt to Consolidated Adjusted Cash from Operations <5.6
	•	Ratio of MIC Inc plus MIC LLC Interest Expense to Consolidated Adjusted Cash from Operations >2

Macquarie Securities (USA) Inc, an affiliate of our Manager, advised us in relation to the establishment of the revolving facility and will receive fees of $625,000. Macquarie Bank Limited, also an affiliate of the Manager, has provided a commitment for $100 million of the revolving facility on the same terms as the non-affiliated participants. Each of Citicorp North America Inc, Merrill Lynch Capital Corporation and Credit Suisse, Cayman Islands Branch provided commitments of $50 million.

We believe that we will have sufficient liquidity and capital resources to meet our future liquidity requirements and make regular distributions to our shareholders. Specifically, we believe that our cash from operations and investments, plus $14.3 million of cash in our acquired businesses (net of reserves), will be sufficient to meet our expected dividend payments in 2005. Included in cash in acquired businesses is a working capital adjustment of $3.8 million to the Atlantic purchase price. The section below discusses the consolidated sources and uses of cash.

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Our Consolidated Cash Flow

Our financial statements include a consolidated condensed statement of cash flows from operating, financing and investing activities for the nine months ended September 30, 2005. Since we acquired our businesses and investments in late December 2004 and thereafter, our consolidated cash flows would not be comparable to any prior period.

	Nine Months Ended
	September 30, 2005
	($ in thousands)
	(unaudited)
Net cash provided by operating activities	$	36,693
Acquisition of businesses and investments, net of cash acquired		(109,746	)
Deposits and deferred costs on future acquisitions		(15,429	)
Goodwill adjustment		694
Purchases of property and equipment		(7,502	)
Principal proceeds from subordinated loan		914
Net cash used in investing activities	$	(131,069	)
Proceeds from debt		32,700
Debt financing and offering costs		(3,608	)
Other investing activities		(287	)
Distribution paid to shareholders		(29,423	)
Payments of notes, capital lease obligations and long term debt		(1,186	)
Net cash used in financing activities	$	(1,804	)

On a consolidated basis, cash flows provided by operating activities totaled $36.7 million for the nine months ended September 30, 2005. This is primarily comprised of the operating income of our business segments and income earned from our investments. Cash provided by operating activities is significantly higher than net income primarily due to non-cash expenses, including depreciation and amortization expense of $19.9 million, deferred rent expense of $1.7 million, and receipts of equipment lease receivables from our district energy business of $1.3 million. Operating assets and liabilities remained consistent with year-end levels in total, with an increase in accounts receivable of $6.7 million offset by increases in accounts payable and accrued expenses and due to Manager, and a decrease in prepaid expenses and current assets.

Cash flow used in investing activities primarily reflects our acquisitions, deposits and deferred costs on future acquisitions, and capital expenditures. We received a bankruptcy settlement pertaining to our district energy business of $925,000, of which $694,000 was recorded as a purchase accounting adjustment to goodwill and the remaining $231,000 recorded as other income which was wholly allocated to minority interests. The terms of the settlement require the proceeds to be applied to debt reduction. As we are holders of the debt we are entitled to the entire settlement. The $15.4 million of deposits and deferred costs on future acquisitions consists primarily of our deposit of $12.2 million in connection with our pending acquisition of The Gas Company.

Cash flow used in financing activities reflects distributions paid to our shareholders and repayments of debt and lease obligations, mostly offset by proceeds.

Financing Activities

For further discussion of the debt and capital expenditures at our businesses, our liquidity and capital resources, see “Management’s Discussion and Analysis of Financial Condition and Results on Operations – Liquidity and Capital Resources – Cash Flows Provided from (Used in) Financing Activities by our Consolidated Businesses” and “– Capital Expenditures” in Item 7 of our Annual Report on Form 10-K for the fiscal year ended December 31, 2004.

With respect to our airport services business – Atlantic, we are required to maintain a Debt to EBITDA ratio of 6.00 or less in the first year. At December 31, 2004 the Debt to EBITDA ratio was 5.98. As of September 30, 2005, the Debt to EBITDA ratio improved to 5.54.

With respect to our airport services business – AvPorts, we are required to maintain a debt service coverage ratio of 1.625. At December 31, 2004 and September 30, 2005, the debt service coverage ratio was 4.92.

We intend to refinance the existing debt facilities at NACH and MANA with a single debt facility of $305 million. The facility will be made up of $300 million in term loan and $5 million in revolving loan. In November 2005 we received commitment letters from a group of financial institutions for this facility, including Macquarie Bank Limited, an affiliate of our Manager. The commitment letters are subject to documentation of agreed terms.

39

Based on agreed terms we believe that the debt facility will be secured by all of the assets of NACH and MANA. The debt facility will have a five year term. Amounts outstanding under the facility are expected to bear interest at the rate of 1.75% per annum over LIBOR in years 1 to 3 and 2.00% per annum over LIBOR in years 4 and 5. We intend to enter into interest rate swap arrangements for a minimum of 75% of the term loan potentially by utilizing our existing swaps described above.

The credit facility will contains various provisions customary for credit facilities of this size and type, including representations, warranties and covenants with respect to the business. In particular, the borrowers will be required to maintain the following ratios:

Minimum debt service coverage ratio	1.5 times – lock-up of distributions to equity 1.2 times – default
Maximum debt to earnings before interest, tax, depreciation and amortization	End of year 3: 5.5 times End of year 4: 5.0 times Six months prior to maturity: 4.5 times
Minimum EBITDA:	Year 1: $40.10 million Year 2: $43.45 million Year 3: $47.00 million

In addition, the borrowers will be required to maintain a debt service reserve equal to six months of debt service.

The proceeds of the facility will be used to repay the aggregate outstanding debt at our airport services business of $196.5 million, to fund a portion of the purchase price of our acquisition of The Gas Company as discussed above and the remainder for general corporate purposes.

With respect to our airport parking business – we are required to maintain various debt services reserves totaling $5.7 million. These reserves are currently, and as of September 30, 2005 were, fully funded.

With respect to our district energy business we are required to maintain a debt service ratio of 1.25:1. As of September 30, 2005, the debt service coverage ratio was 2.43:1.

Capital Expenditures

On a consolidated basis, we expect to incur $6.5 million of ongoing capital expenditures in fiscal 2005. We have revised our estimates for specific capital expenditures, deferring the majority of those scheduled in 2005 to 2006 due to logistical delays. We expect to incur these deferred expenditures in 2006. Additionally, we paid $2.3 million to purchase land previously leased by our parking business. This $2.3 million was funded out of our IPO proceeds. In addition to this $2.3 million, $5.4 million of capital expenditures has been and will be financed with proceeds from our IPO with the balance funded from cash acquired with the acquisitions of our businesses, cash from operations and available debt facilities. All ongoing and specific capital expenditures are incurred at the operating segment level. As of September 30, 2005, we had incurred $7.5 million in capital expenditures in the aggregate including the land purchase for $2.3 million.

We have detailed our capital expenditures on a segment-by-segment basis, which we believe is a more appropriate approach to explaining our capital expenditure requirements on a consolidated basis.

          Airport Services Business

          Ongoing Capital Expenditure

We expect to spend approximately $3.8 million per year on ongoing capital expenditure (including for our new facility at Las Vegas). This amount is spent on items such as repainting, replacing equipment as necessary and any ongoing environmental or required regulatory expenditure, such as installing safety equipment. This expenditure is funded from cash flow from operations. Through the first nine months of 2005 airport services has spent $2.0 million on such capital expenditures and we expect to spend up to $1.5 million in the fourth quarter of this year.

          Specific Capital Expenditure

We intend to incur approximately $13.3 million of specific capital expenditure over the rest of 2005 and 2006, primarily related to facility upgrades and new construction, including amounts deferred from 2005 for the ramp extension at Teterboro and renovation of the East 34th Street heliport. We intend to fund these capital expenditures either from the proceeds of our IPO from the cash that we acquired with our acquisitions of NACH and MANA or from proceeds of our planned debt refinancing. As of September 30, 2005 airport services spent $1.3 million on specific projects.

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          Airport Parking Business

          Ongoing Capital Expenditure

We expect to commit to ongoing capital expenditures with a contracted value of approximately $2.6 million in 2005 relating to the regular replacement of shuttle buses, information technology enhancements and other property improvements. During the nine months ended September 30 2005, our airport parking business committed to ongoing capital expenditures totaling $2.2 million, of which $1.4 million were financed with capital leases and $727,000 were paid in cash. For the remainder of the year, we expect to commit to additional ongoing capital expenditures with a contracted value of approximately $400,000, substantially all of which will be financed through capital leases.

Our airport parking business has made additional capital expenditures of $870,000 during the nine months ended September 30, 2005, representing principal payments on capital lease obligations and further expects to make approximately $350,000 of these expenditures in the fourth quarter of 2005. Accordingly, total ongoing capital expenditures for the nine months ended September 30, 2005 were $1.6 million and total ongoing capital expenditures are expected to be approximately $2.0 million for 2005.

          Specific Capital Expenditure

We plan to make specific capital expenditures with a contracted value of approximately $1.5 million in 2005 to enhance revenue in selected markets. These revenue enhancing projects include a vehicle lift system to manage additional demand at one location and covered parking solutions at two locations. Our airport parking business paid $337,000 for these projects during the nine months ended September 30, 2005 and intends to finance the remaining $1.2 million of specific capital expenditures using capital leases.

          District Energy Business

          Ongoing Capital Expenditure

We expect to spend approximately $1.0 million per year on capital expenditures relating to the replacement of parts and minor system modifications. We have made modifications that have increased capacity by 3,000 tons over last year’s capacity. Ongoing capital expenditures will be funded from available debt facilities through 2007 and thereafter are expected to be funded from cash flow from operations.

          Specific Capital Expenditure

We anticipate that Thermal Chicago will spend up to approximately $7.0 million over two years starting in 2007 which, in conjunction with their operational strategy, will add approximately 13,000 tons of additional saleable capacity to the Chicago downtown cooling system. Previously, this $7.0 million expansion was contemplated to start in 2006, however, due to timing of new customer building completion and increased capacity achieved with existing plants, this expenditure can be delayed at least until 2007. As a result of improved efficiency at our existing plants, existing capacity is currently expected to be able to accommodate four customers who will convert from interruptible to continuous service in 2006. We anticipate that the expanded capacity resulting from our specific capital expenditures would be sold to new or existing customers, either under a contract or subject to letters of intent, prior to our committing to the capital expenditure. A permit revision from environmental agencies will be required in order to undertake this expansion and approval from the City of Chicago would be required. Based on recent contract experience, we anticipate that each ton sold under contract will add approximately $375 to annual revenue with approximately 50% of this increased revenue in the form of cooling capacity revenue and the balance as cooling consumption revenue.

We expect to fund this capital expenditure by drawing on available debt facilities.

Commitments and Contingencies

For a discussion of the future obligations of MIC Inc., the U.S. holding company for our consolidated businesses, due by period, under their various contractual obligations, off-balance sheet arrangements and commitments, please see “Liquidity and Capital Resources — Commitments and Contingencies” in Part II, Item 7 of our Annual Report on Form 10-K for the fiscal year ended December 31, 2004. We have not had any material changes to our commitments since March 22, 2005, our 10-K filing date, except as discussed below.

For critical accounting policies, see “Critical Accounting Policies” in Part II, Item 7 of our Annual Report on Form 10-K for the fiscal year ended December 31, 2004. Our critical accounting policies have not changed materially since March 22, 2005, our 10-K filing date.

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          The Gas Company

On August 17, 2005, we entered into a joinder agreement with the K1 Parties, and MIHI and a related assignment agreement with MIHI. Under these agreements, we assumed all of MIHI’s rights and obligations as a Buyer under a purchase agreement between MIHI and the K1 Parties in connection with the acquisition of The Gas Company, as described under “Management’s Discussion and Analysis of Financial Condition and Results of Operation¯General¯Pending Acquisitions”.

The purchase agreement provides for the payment in cash of a base purchase price of $238 million (subject to working capital and capital expenditure adjustments) with no assumed interest-bearing debt. The Company currently expects working capital and capital expenditure adjustments to add approximately $12 million to the total purchase price. In addition to the purchase price, it is anticipated that approximately a further $9 million will be paid to cover transaction costs. We expect to finance the acquisition, including an initial up-front deposit of $12.2 million, with $160 million of future subsidiary level debt and the remainder from proceeds from the refinancing of our airport services segment discussed below or other sources of available cash.

Due to the regulatory and other approvals required to complete the transaction, we do not expect to be able to close the transaction prior to late in the second quarter or third quarter of 2006. Completion of the acquisition depends on a number of conditions being satisfied by October 31, 2006, including approval by the Hawaii Public Utilities Commission of the transaction and the subsidiary level debt financing, numerous contractual consents and the expiration or early termination of any waiting period under the Hart-Scott-Rodino Antitrust Act of 1976, as amended, as well as other customary closing conditions.

The purchase agreement provides for the payment of liquidated damages equal to 5% of the base purchase price if the transaction is terminated for breach prior to receipt of regulatory approvals and 10% of the base purchase price if terminated for breach thereafter. In addition, the Company would be obligated to pay a liquidated damages amount equal to 5% of the base purchase price if approval from the Hawaii Public Utilities Commission were not obtained due in whole or substantial part to the Hawaii Public Utilities Commission’s findings regarding the Company’s financial, legal or operational qualifications.

          SunPark

On October 3, 2005, we, through a majority-owned subsidiary, completed the acquisition of real property and personal and intangible assets related to the SunPark facilities and on October 26, 2005, our parking business acquired an additional property in Maricopa, Arizona.

The total cash purchase price for SunPark was $64.9 million, plus approximately $4 million of acquisition costs (including pre-funded reserves) and $1.0 million of pre-funded capital expenditures. The transaction was financed through $48.8 million of new non-recourse debt facility at the subsidiary level, described in the following paragraph, $19.1 million of cash contributed by us and $1.0 million of cash contributed by minority shareholders in our parking business. The total cash purchase price of the Maricopa facility was $4.2 million and was financed through $2.8 million of additional borrowings under the non-recourse debt facility described below, $1.3 million of cash contributed by us and $70,000 of cash contributed by minority shareholders in our parking business.

Our parking business established a non-recourse debt facility on October 3, 2005 under a credit agreement between GMAC Commercial Mortgage Corporation and a subsidiary within our airport parking business to fund the SunPark acquisition. The SunPark debt facility provided funding in the form of term loans with a three year term and two additional one year extensions at the borrower’s option subject to meeting certain covenants. Amounts outstanding under the facility bear interest at the rate of 2.75% per annum over LIBOR during the first three years, increasing by 0.20% per annum in connection with each one-year extension. An additional $10.0 million of borrowings were initially available under the facility to fund the acquisition of additional airport parking facilities. Of this additional availability, $2.8 million was drawn on October 26, 2005 to fund the acquisition of the Maricopa facility. The SunPark debt facility is secured by all of the real property and other assets of SunPark and the Maricopa facility.

We entered into an interest rate cap agreement which effectively caps the LIBOR portion of the interest rate on the SunPark facility to 4.48% for any amounts borrowed under the facility.

          Airport Services Refinancing

We intend to refinance the existing debt facilities at NACH and MANA with a single debt facility of $305 million, as described under “¯Financing Activities” above.

ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK

For quantitative and qualitative disclosures about market risk, see Item 7A “Quantitative and Qualitative Disclosures about Market

42

Risk” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2004. Our exposure to market risk have not changed materially since March 22, 2005, our 10-K filing date.

ITEM 4. CONTROLS AND PROCEDURES

In accordance with Exchange Act Rules 13a-15 and 15d-15, we carried out an evaluation, under the supervision and with the participation of management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of our disclosure controls and procedures as of the end of the period covered by this report. Based on that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective as of September 30, 2005.

There has been no change in our internal controls over financial reporting that occurred during the quarter ended September 30, 2005 that has materially affected, or is reasonably likely to materially affect, our internal controls over financial reporting.

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PART II. OTHER INFORMATION

ITEM 1. LEGAL PROCEEDINGS

Please see the legal proceedings described in our Quarterly Report on Form 10-Q for the quarterly periods ended March 31, 2005 and June 30, 2005 and in our Annual Report on Form 10-K for the fiscal year ended December 31, 2004. There were no material changes to legal proceedings during the quarter ended September 30. 2005.

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

Unregistered Sales of Equity Securities

None.

Use of Proceeds from Initial Public Offering

On December 21, 2004, we sold 26,610,000 shares of trust stock in our initial public offering and a concurrent private placement for a purchase price of $25.00 per share and an aggregate offering price of $665.3 million following which the offering terminated. Our initial public offering was effected through a Registration Statement on Form S-1 (File No. 333-116244) that was declared effective by the SEC on December 16, 2004.

The following table describes the source and use of proceeds from our initial public offering from December 21, 2004 to September 30, 2005 (in thousands):

Initial Public Offering
Proceeds from shares of trust stock sold in initial public offering and concurrent private placement	$	665,250
Underwriters’ discount and commissions		(38,465	)
All other offering costs		(13,093	)
Net offering proceeds to us		613,692
Acquisition Financing
Purchase of Equity (including related expenses):
Atlantic		(118,277	)
GAH		(21,496	)
AvPorts		(42,680	)
EAR		(59,840	)
Macquarie Parking		(63,856	)
Thermal Chicago and Northwind Aladdin		(67,016	)
CHL		(84,668	)
Purchase of Interest in (including related expenses):
MCG		(70,000	)
SEW		(39,610	)
Other
Additional contribution to Atlantic		(1,500	)
Additional contribution to Macquarie Parking		(2,400	)
Payments for deposits and acquisition costs, for future investments		(12,224	)
Reserves for working capital and Sarbanes-Oxley compliance costs		(12,308	)
Remaining Cash on Hand	$	17,817

Note: Subsequent to September 30, 2005, we completed the acquisition of the SunPark assets, through a majority-owned subsidiary, for a cash contribution of $19.1 million.

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ITEM 3. DEFAULTS UPON SENIOR SECURITIES

None.

ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS

None.

ITEM 5. OTHER INFORMATION

None.

ITEM 6. EXHIBITS

An exhibit index has been filed as part of this Report on page E-1.

45

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

	Macquarie Infrastructure Company Trust
Dated: November 14, 2005	By: /s/ Peter Stokes
	Name: Peter Stokes
	Title: Regular Trustee

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

	Macquarie Infrastructure Company LLC
Dated: November 14, 2005	By: /s/ Peter Stokes
	Name: Peter Stokes
	Title: Chief Executive Officer
	Macquarie Infrastructure Company LLC
Dated: November 14, 2005	By: /s/ David Mitchell
	Name: David Mitchell
	Title: Chief Financial Officer

46

EXHIBIT INDEX

Exhibit
Number	Description
2.1	Purchase Agreement dated August 2, 2005, as amended August 17, 2005, among k1 Ventures Limited, K-1 HGC Investment, L.L.C. and Macquarie Investment Holdings Inc, and related joinder agreement and assignment agreement (incorporated by reference to Exhibits 2.1, 2.2 and 2.3 to the Registrants’ Current Report on Form 8-K filed with the SEC on August 19, 2005)
2.2	Second Amendment to Purchase Agreement dated October 21, 2005 among k1 Ventures Limited, K-1 HGC Investment, L.L.C. and Macquarie Gas Holdings LLC
2.3	Joinder Agreement dated September 16, 2005 between Macquarie Infrastructure Company Inc., k1 Ventures Limited, K-1 HGC Investment, L.L.C. and Macquarie Gas Holdings LLC
2.4	Assignment Agreement dated September 16, 2005 between Macquarie Infrastructure Company Inc. and Macquarie Gas Holdings LLC
3.1	Second Amended and Restated Trust Agreement dated as of September 1, 2005 of Macquarie Infrastructure Company Trust (incorporated by reference to Exhibit 3.1 of the Registrants’ Current Report on Form 8-K, filed with the SEC on September 7, 2005 (the “September Current Report”))
3.2	Second Amended and Restated Operating Agreement dated as of September 1, 2005 of Macquarie Infrastructure Company LLC (incorporated by reference to Exhibit 3.2 of the September Current Report)
3.3	Amended and Restated Certificate of Trust (incorporated by reference to Exhibit 3.7 of Amendment No. 2 to the Registrant’s Registration Statement on Form S-1 (Registration No. 333-116244) (“Amendment No. 2”))
3.4	Amended and Restated Certificate of Formation (incorporated by reference to Exhibit 3.8 of Amendment No. 2)
4.1	Specimen certificate evidencing share of trust stock of Macquarie Infrastructure Company Trust (incorporated by reference to Exhibit 4.1 of the Registrants’ Annual Report Form 10-K (the “Annual Report”))
4.2	Specimen certificate evidencing LLC interest of Macquarie Infrastructure Company LLC (incorporated by reference to Exhibit 4.2 of the Annual Report)
10.1	Commitment letter dated August 17, 2005, between Macquarie Infrastructure Company Inc. and Dresdner Kleinwort Wasserstein Limited
10.2	Loan Agreement between PCAA SP, LLC, as borrower, and GMAC Commercial Mortgage Bank, as lender, dated as of October 3, 2005
10.3	Credit Agreement dated as of November 11, 2005 among Macquarie Infrastructure Company Inc.(d/b/a Macquarie Infrastructure Company (US)) as Borrower, Macquarie Infrastructure Company LLC, the Lenders and Issuers party thereto and Citicorp North America, Inc., as Administrative Agent.
31.1	Rule 13a-14(a)/15d-14(a) Certification of the Chief Executive Officer
31.2	Rule 13a-14(a)/15d-14(a) Certification of the Chief Financial Officer
32.1	Section 1350 Certification of the Chief Executive Officer
32.2	Section 1350 Certification of the Chief Financial Officer
99.1	Selected pages of the Annual Report which are incorporated by reference into this Quarterly Report on Form 10-Q (incorporated by reference to Exhibit 99.1 of the Registrants’ Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2005)
99.2	Earnings release related to the quarter ended September 30, 2005

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EX-2.2

EXHIBIT 2.2

SECOND AMENDMENT
TO
PURCHASE AGREEMENT

     This Second Amendment is made this 21st day of October, 2005 by and among k1 Ventures Limited, a Singapore company (“Seller”), K-1 HGC Investment, L.L.C., a Hawaii limited liability company (“HGC Investment”), and Macquarie Gas Holdings LLC, a Delaware limited liability company (“Buyer”).

Recitals

     Seller, HGC Investment and Macquarie Investment Holdings Inc., a Delaware corporation (“MIHI”) entered into a Purchase Agreement dated as of August 2, 2005, as amended by the First Amendment to Purchase Agreement dated August 17, 2005 (as amended, the “Purchase Agreement”). MIHI assigned its rights and obligations under the Purchase Agreement to Macquarie Infrastructure Company Inc. (“MIC”) pursuant to the Assignment Agreement dated as of August 17, 2005 by and between MIHI and MIC, and MIC subsequently assigned its rights and obligations under the Purchase Agreement to Buyer pursuant to the Assignment Agreement dated as of September 16, 2005 by and between MIC and Buyer.

     Seller, HGC Investment and Buyer desire to further amend the Purchase Agreement as hereinafter set forth.

     NOW THEREFORE, in consideration of the premises and the mutual promises herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:

     1. Section 1.1 of the Purchase Agreement is hereby further amended by adding the following new definitions thereto:

     “HGC Investment Subsidiary” shall mean a corporation which will be formed in Delaware or Hawaii as a wholly owned subsidiary of HGC Investment, to which HGC Investment will contribute sufficient cash for the sole purpose of acquiring and holding prior to the Closing the Managing Member Interest from the current managing member of HGC Holdings.

     “Managing Member Interest” shall mean the 0.1% managing member interest of HGC Holdings.

     2. Section 4.25(a) of the Purchase Agreement is hereby further amended to read in its entirety as follows:

     “(a) Does not own and has never owned any assets other than its membership interests in HGC Holdings and K-1 Knowledge, LLC, a Delaware limited liability company, and its share ownership of HGC Investment Subsidiary, and does not engage and has never engaged in any trade or business other than the passive ownership of its

membership interests in HGC Holdings and K-1 Knowledge, LLC and its share ownership of HGC Investment Subsidiary. HGC Investment does not have and has never had any employees and does not and has not ever contributed to or sponsored any Benefit Plan.”

     3. Section 6.14 of the Purchase Agreement is hereby further amended to read in its entirety as follows:

     “Acquisition of Remaining Membership Interests in HGC Holdings. After the receipt by Seller of the approval of the HPUC for the transfer of the Managing Member Interest to HGC Investment or HGC Investment Subsidiary, but on or prior to the Closing Date, HGC Investment shall cause HGC Investment Subsidiary to purchase the Managing Member Interest from the current managing member of HGC Holdings, such that HGC Investment owns (directly and indirectly through HGC Investment Subsidiary) the HGC Holdings Membership Interest at the Closing. At the Closing, Buyer shall have the option to direct that either (a) HGC Investment convey to Buyer 100% of the equity interests of HGC Investment Subsidiary, (b) HGC Investment Subsidiary convey the Managing Member Interest to Buyer, or (c) HGC Investment Subsidiary liquidate and transfer the Managing Member Interest to HGC Investment. Upon the exercise of any of the foregoing options (a), (b) or (c), and the purchase by Buyer at the Closing of the HGC Investment Membership Interest, Buyer shall own (directly or indirectly through HGC Investment) the HGC Holdings Membership Interest following the Closing.

     4. Except as specifically amended hereby, the Purchase Agreement shall remain in full force and effect.

     5. This Second Amendment shall be governed by and construed in accordance with the laws of the State of New York (without giving effect to conflict of law principles).

     6. This Second Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

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

k1 Ventures Limited
By	/s/ Jeffrey Safchik
	Its Chief Operating Officer
K-1 HGC Investment, L.L.C.
By	/s/ Jeffrey Safchik
	Its Chief Operating Officer
Macquarie Gas Holdings LLC
By	/s/ Peter Stokes
	Its Chief Executive Officer

EX-2.3

EXHIBIT 2.3

JOINDER AGREEMENT

     This Joinder Agreement is executed this 16th day of September, 2005, by Macquarie Gas Holdings LLC (“Assignee”). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Purchase Agreement (defined below).

Recitals

     k1 Ventures Limited (“Seller”), K-1 HGC Investment, L.L.C. (“Investment”) and Macquarie Investment Holdings Inc. (“MIHI”) are parties to a Purchase Agreement dated August 2, 2005, as amended by a First Amendment to Purchase Agreement dated as of August 17, 2005 (the “Purchase Agreement”).

     Section 11.4 of the Purchase Agreement allows Buyer to assign its interests in the Purchase Agreement to one or more assignees provided that such assignee or assignees execute a Joinder Agreement to become a party to the Purchase Agreement.

     MIHI assigned its rights and obligations under the Purchase Agreement to Macquarie Infrastructure Company Inc., a Delaware corporation (“Assignor”) pursuant to that certain Assignment Agreement dated as of August 17, 2005, and Assignor became a party to the Purchase Agreement by executing that certain Joinder Agreement executed August 17, 2005.

     Assignor has assigned its rights and obligations under the Purchase Agreement to Assignee and Assignee desires to become a party to the Purchase Agreement by executing this Joinder Agreement.

     NOW THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which Assignee hereby acknowledges, Assignee agrees as follows:

1.

Effective as of the date of this Joinder Agreement, Assignee shall become a party to the Purchase Agreement with a proportionate interest in the rights and obligations of Buyer under the Purchase Agreement.

2.

By executing this Joinder Agreement, Assignee confirms that the representations and warranties of Buyer set out in Article 5 of the Purchase Agreement would be true and correct as of the date of this Joinder Agreement if made with respect to Assignee, and agrees that from and after the date of this Joinder Agreement: (i) Assignee makes with respect to itself all representations and warranties of Buyer under the Purchase Agreement, (ii) is bound by and agrees to perform all covenants of Buyer under the Purchase Agreement, and (iii) is the beneficiary of all representations, warranties and covenants of Seller and Investment under the Purchase Agreement, including, without limitation, is entitled to receive all notices to Buyer under the Purchase Agreement.

3. Assignee’s address for notices is as follows:

125 West 55^th Street
New York, NY 10019
Attention: Peter Stokes

     By its execution hereof, in accordance with Section 11.4 of the Purchase Agreement, Assignor agrees and acknowledges that it (i) shall remain liable for the satisfaction of all the obligations of Buyer pursuant to the Purchase Agreement and (ii) shall not be released from any liability under the Purchase Agreement pursuant to its assignment of its rights under the Purchase Agreement to Assignee.

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     In Witness Whereof, Assignee has caused this Joinder Agreement to be duly executed as of the date first above written.

Macquarie Gas Holdings LLC
By	/s/ Peter Stokes
	Its Chief Executive Officer

     Acknowledged and agreed as of the date first above written.

k1 Ventures Limited
By	/s/ Jeffrey Safchik
	Its Chief Operating Officer
K-1 HGC Investment, L.L.C.
By	/s/ Jeffrey Safchik
	Its Chief Operating Officer
Macquarie Infrastructure Company Inc. (d/b/a Macquarie Infrastructure Company (US))
By	/s/ Peter Stokes
	Its Chief Executive Officer

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EX-2.4

EXHIBIT 2.4

ASSIGNMENT AGREEMENT

     This Assignment (this “Assignment”) is entered into effective as of September 16, 2005 (the “Effective Date”), by and between Macquarie Infrastructure Company Inc., a Delaware corporation (“Assignor”) and Macquarie Gas Holdings LLC, a Delaware limited liability company (“Assignee”).

Recitals

     Macquarie Investment Holdings Inc. (“MIHI”) entered into a Purchase Agreement (the “Purchase Agreement”) dated as of August 2, 2005, as amended by a First Amendment to Purchase Agreement dated as of August 17, 2005, by and between k1 Ventures Limited, K-1 HGC Investment, L.L.C. and MIHI; and

     MIHI assigned its rights and obligations under the Purchase Agreement to Assignor pursuant to that certain Assignment Agreement dated as of August 17, 2005 by and between MIHI and Assignor; and

     Assignor has agreed to assign its rights and obligations under the Purchase Agreement to Assignee and Assignee has agreed to acquire such rights and obligations.

     NOW THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor and Assignee hereby agree as follows:

     (1) Assignment. Effective as of the Effective Date, Assignor does hereby transfer and assign to Assignee all of Assignor’s rights and obligations under the Purchase Agreement.

     (2) Assumption. Effective as of the Effective Date, Assignee hereby assumes all of the obligations of Assignor as “Buyer” under the Purchase Agreement and agrees to be bound by the terms of the Purchase Agreement.

     (3) Indemnification. Assignee agrees to indemnify and hold harmless Assignor, its affiliates and each of their respective officers, directors and employees, from and against any costs, judgments, claims, liabilities, damages, losses, penalties and expenses of any kind (including reasonable attorneys’ fees and expenses of investigation) arising out of or relating to Assignee’s rights and obligations as “Buyer” under the Purchase Agreement.

     (4) Joinder Agreement. To evidence its acceptance of the assignment of all of Assignees rights and obligations under the Purchase Agreement, and to become a party to the Purchase Agreement, Assignee agrees to execute a Joinder Agreement in the form attached to the Purchase Agreement as Exhibit E.

     (5) CHOICE OF LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

     (6) Further assurances. Assignor and Assignee will promptly, upon reasonable request and at the sole expense of the requesting party, execute and deliver all such other documents and take such other actions as may be reasonably necessary to effectuate the intent and provisions of this Assignment.

     IN WITNESS WHEREOF, Assignor and Assignee each respectively has caused this Assignment to be executed by its undersigned officers.

ASSIGNOR:
MACQUARIE INFRASTRUCTURE COMPANY INC.
(d/b/a	Macquarie Infrastructure Company (US))
By:	/s/ Peter Stokes
Name: Peter Stokes
Title: Chief Executive Officer
ASSIGNEE:
MACQUARIE GAS HOLDINGS LLC
By:	/s/ Peter Stokes
Name: Peter Stokes
Title: Chief Executive Officer

EX-10.1

August 17, 2005

Macquarie Infrastructure Company Inc.
600 Fifth Avenue, 21st Floor
New York, NY 10020

Attention: Peter Stokes

Re: Project Kiani

Ladies and Gentlemen:

You have advised Dresdner Kleinwort Wasserstein Limited (“DrKW”) that one of your affiliates, Macquarie Investment Holdings Inc., a Delaware corporation (“Holdings”) has entered into a Purchase Agreement with k1 Ventures Limited, a Singapore company (“Seller”) and K-1 HGC Investment L.L.C., a Hawaii limited liability company (“HGC Investment”), under which it or its assignee intends to acquire (the “Acquisition”) all of the direct or indirect equity interests of HGC Investment, L.L.C. from Seller or, at the election of Seller, all of the direct or indirect equity interests of HGC Holdings, L.L.C., a Hawaii limited liability company (“HoldCo”) from HGC Investment. At the closing of the Acquisition, HGC Investment will own 100% of the equity interests in HoldCo, which in turn owns 100% of the equity interests of The Gas Company L.L.C., a Hawaii limited liability company (the “Company”) and together with HGC Investment and HoldCo, the “Target Group”). The base purchase price for the Acquisition is $238,000,000.

You have also advised DrKW that Holdings intends to assign the Purchase Agreement to Macquarie Infrastructure Company Inc., a Delaware corporation (“MIC”, collectively with certain of its affiliates, the “Equity Investors”). After the Acquisition, MIC will own, through one or more affiliates, 100% of the equity interests in HoldCo and the Company.

You have also advised DrKW that you intend to finance the Acquisition, costs and expenses related to the Transaction (as hereinafter defined) and the ongoing working capital and other general corporate purposes of the Company and its subsidiaries after consummation of the Acquisition from the following sources (and that no financing other than the financing described herein will be required in connection with the Transaction): (a) at least $102 million of common equity will be contributed (the “Equity Contribution”) to Holdings, through the Equity Investors (such Equity Contribution may be raised by the Equity Investors through debt financing), (b) up to $80 million in a senior term loan facility of HoldCo (“Facility A”), and (c) up to $100 million in senior secured credit facilities of the Company, comprised of (i) a term loan facility aggregating up to $80 million (“Facility B”) and (ii) a revolving credit facility of up to $20 million (“Facility C”; and together with Facility A and Facility B, the “Senior Credit Facilities”). The Acquisition, the Equity Contribution, the entering into and funding of the Senior Credit Facilities and all related transactions are hereinafter collectively referred to as the “Transaction.”

In connection with the foregoing, DrKW is pleased to advise you of its commitment to provide 100% of the full principal amount of the Senior Credit Facilities and to act as the sole and exclusive Facility Agent and Security Trustee (in such capacity, the “Administrative Agent”) for the Senior Credit Facilities, all upon and subject to the terms and conditions set forth in this letter and in the Loan Facilities Term Sheet attached as Exhibit A hereto and incorporated herein by this reference (the “Term Sheet” and, together with this letter agreement, the “Commitment Letter”). DrKW is further pleased to advise you of its willingness, as the sole and exclusive lead arranger and sole book manager (in such capacities, the “Lead Arranger”) for the Senior Credit Facilities, to form a syndicate of financial institutions and institutional lenders (including DrKW) (collectively, the “Lenders”) in consultation with you and with your prior written consent (not to be unreasonably withheld) for the Senior Credit Facilities. All capitalized terms used and not otherwise defined herein shall have the same meanings as specified therefor in the Term Sheet.

The commitment of DrKW hereunder and the undertaking of DrKW to provide the services described herein are subject to the satisfaction of each of the conditions precedent specified in the Term Sheet in a manner acceptable to DrKW, receipt of final due diligence reports from the report providers identified in the Term Sheet consistent in all material respects with the draft reports previously delivered, your compliance with the Fee Letter (as hereafter defined) and the negotiation, execution and delivery of definitive documentation (the “Credit Documentation”) for the Senior Credit Facilities consistent with the Term Sheet and otherwise satisfactory to DrKW.

DrKW intends to commence syndication of the Senior Credit Facilities promptly upon your acceptance of this Commitment Letter and the Fee Letter, and the commitment of DrKW hereunder shall be reduced dollar-for-dollar as and when corresponding commitments are received from the Lenders, and you agree to cooperate with DrKW to enable DrKW to launch syndication as quickly as practicable. You agree to actively assist, and to cause the Company to actively assist, DrKW in achieving a syndication of the Senior Credit Facilities that is satisfactory to DrKW and you. Such assistance shall include (a) your providing and causing your advisors to provide DrKW and the other Lenders upon request with all information reasonably deemed necessary by DrKW to complete syndication, including, but not limited to, information and evaluations prepared by you, the Company and your and their advisors, or on your or their behalf, relating to the Transaction, (b) your assistance in the preparation of an Information Memorandum to be used in connection with the syndication of the Senior Credit Facilities, (c) using your commercially reasonable efforts to ensure that the syndication efforts of DrKW benefit materially from your existing lending relationships and the existing banking relationships of the Company, (d) if DrKW so requests (which it may do in its reasonable discretion in consultation with you if it considers it necessary or desirable to do so in order to achieve successful syndication of the Senior Credit Facilities), your providing DrKW with all information and other assistance that DrKW may require in order instruct a ratings agency to conduct a formal ratings process in connection with the Transaction (at DrKW’s cost) and (e) otherwise assisting DrKW in its syndication efforts, including by making your officers and advisors and the officers and advisors of the Company available from time to time to attend and make presentations regarding the business and prospects of the Company at one or more meetings of prospective Lenders.

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It is understood and agreed that DrKW will manage and control all aspects of the syndication in consultation with you, including decisions as to the selection of prospective Lenders (with your consent, not to be unreasonably withheld) and any titles offered to proposed Lenders, when commitments will be accepted and the final allocations of the commitments among the Lenders. It is understood that no Lender participating in the Senior Credit Facilities will receive compensation from you in order to obtain its commitment, except on the terms contained herein and in the Term Sheet. It is also understood and agreed that the amount and distribution of the fees among the Lenders will be at the sole and absolute discretion of DrKW.

Prior to your announcing, arranging or awarding any mandate for any financing in the European syndicated loan market for the acquisition of any gas utility operations at any time from the date of this letter until the earlier of (1) the date on which general syndication of the Facility has been completed (and DKW has reached a maximum final hold of $55,000,000) or (2) the date which is 3 months after the launch of syndication, you shall consult in good faith with DKW and, as part of such good faith consultations, you shall use reasonable endeavors to ensure any syndication referred to above is coordinated with the syndication of this Facility to ensure there is no competition between the respective marketing of the financings.

You hereby represent, warrant and covenant that (a) all information, other than Projections (as defined below), which has been or is hereafter made available to DrKW or the Lenders by you or any of your representatives (or on your or their behalf) or by the Company or any of its subsidiaries or representatives (or on their behalf) in connection with any aspect of the Transaction (the “Information”) is and will be complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading in light of the circumstances under which they were made and (b) all financial projections concerning the Company that have been or are hereafter made available to DrKW or the Lenders by you or any of your representatives (or on your or their behalf) or by the Company or any of its subsidiaries or representatives (or on their behalf) (the “Projections”) have been or will be prepared in good faith based upon reasonable assumptions (it is understood and acknowledged, however, that such Projections are based upon a number of estimates and assumptions and are subject to significant business, economic and competitive uncertainties and contingencies and that, accordingly, no assurances are given and no representations, warranties or covenants are made that any of the assumptions are correct, that such Projections will be achieved or that the forward-looking statements expressed in such Projections will correspond to actual results). You agree to furnish us with such Information and Projections as we may reasonably request and to supplement the Information and the Projections from time to time until the date of the initial borrowing under the Senior Credit Facilities (the “Closing Date”) so that the representation, warranty and covenant in the immediately preceding sentence is correct on the Closing Date. In issuing this commitment and in arranging and syndicating the Senior Credit Facilities, DrKW is and will be using and relying on the Information without independent verification thereof.

By executing this Commitment Letter, you agree to reimburse DrKW on demand for all reasonable out-of-pocket fees and expenses (including, but not limited to the reasonable fees, disbursements and other charges of Orrick, Herrington & Sutcliffe LLP, as counsel to the Lead Arranger and the Administrative Agent, and of any local counsel to the Lenders retained by the Lead Arranger or the Administrative Agent incurred in connection with this Commitment Letter

3

and the Senior Credit Facilities, the syndication thereof, the preparation of the definitive documentation therefor and the other transactions contemplated hereby. You also agree to pay the Arrangement Fee and Agency Fee as set out in the Term Sheet.

You agree to indemnify and hold harmless DrKW, each Lender and each of their affiliates and their respective officers, directors, employees, agents, advisors and other representatives (each an “Indemnified Party”) from and against (and will reimburse each Indemnified Party as the same are incurred for) any and all claims, damages, losses, liabilities and expenses (including, without limitation, the reasonable fees, disbursements and other charges of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (a) any aspect of the Transaction or any similar transaction and any of the other transactions contemplated thereby or (b) the Senior Credit Facilities and any other financings, or any use made or proposed to be made with the proceeds thereof, except to the extent such claim, damage, loss, liability or expense is found in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, bad faith or willful misconduct. You also agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or your subsidiaries or affiliates or to your or their respective equity holders or creditors arising out of, related to or in connection with any aspect of the Transaction, except to the extent of direct, as opposed to special, indirect, consequential or punitive, damages determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, bad faith or willful misconduct. It is further agreed that DrKW shall only have liability to you (as opposed to any other person), that DrKW shall be liable solely in respect of its own commitment to the Senior Credit Facilities on a several, and not joint, basis with any other Lender and that such liability shall only arise to the extent damages have been caused by a breach of DrKW’s obligations hereunder to negotiate in good faith definitive documentation for the Senior Credit Facilities on the terms set forth herein as determined in a final non-appealable judgment by a court of competent jurisdiction. In the event that any claim or demand by a third party for which you may be required to indemnify an Indemnified Party hereunder (a “Claim”) is asserted against or sought to be collected from any Indemnified Party by a third party, such Indemnified Party shall as promptly as practicable notify you in writing of such Claim, and such notice shall specify (to the extent known) in reasonable detail the amount of such Claim and any relevant facts and circumstances relating thereto; provided, however, that any failure to give such prompt notice or to provide any such facts and circumstances shall not constitute a waiver of any rights of the Indemnified Party, except to the extent that the rights of the Indemnifying Party are actually prejudiced thereby.

You shall be entitled to appoint counsel of your choice at your expense to represent an Indemnified Party in any action for which indemnification is sought (in which case you shall not thereafter be responsible for the fees and expenses of any separate counsel retained by that Indemnified Party except as set forth below); provided, however, that such counsel shall be satisfactory to such Indemnified Party. Notwithstanding your election to appoint counsel to represent an Indemnified Party in any action, such Indemnified Party shall have the right to employ separate counsel (including local counsel, but only one such counsel in any jurisdiction in connection with any action), and you shall bear the reasonable fees, costs and expenses of

4

such separate counsel if (i) the use of counsel chosen by you to represent the Indemnified Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnified Party and you and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it and/or other Indemnified Parties which are different from or additional to those available to you; (iii) you shall not have employed counsel to represent the Indemnified Party within a reasonable time after notice of the institution of such action; or (iv) you shall authorize the Indemnified Party to employ separate counsel at your expense. You shall not be liable for any settlement or compromise of any action or claim by an Indemnified Party affected without your prior written consent, which consent shall not be unreasonably withheld.

All payments to be made under the Commitment Letter and the Fee Letter (as defined below) shall be paid in the currency of invoice and in immediately available, freely transferable cleared funds to such account with such bank as the Lead Arranger notifies to the Company, and shall be paid without (and free and clear of any deduction for) set-off or counter-claim and without any deduction or withholding for or on account of tax (a “Tax Deduction”) unless a Tax Deduction is required by law. If a Tax Deduction is required by law to be made, the amount of the payment due shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

This Commitment Letter and the Term Sheet and the fee letter among you and DrKW of even date herewith (the “Fee Letter”) and the contents hereof and thereof are confidential and, except for the disclosure hereof or thereof on a confidential basis to your accountants, attorneys and other professional advisors retained by you in connection with the Transaction or as otherwise required by law, may not be disclosed in whole or in part to any person or entity without our prior written consent; provided, however, it is understood and agreed that you may disclose this Commitment Letter (including the Term Sheet) but not the Fee Letter after your acceptance of this Commitment Letter, in filings with the Securities and Exchange Commission and other applicable regulatory authorities and stock exchanges. DrKW shall be permitted to use information related to the syndication and arrangement of the Senior Credit Facilities in connection with marketing, press releases or other transactional announcements or updates provided to investor or trade publications; provided, that any press release or public announcement shall not be made without your prior written consent, not to be unreasonably withheld. DrKW hereby notify you that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Act”), it is required to obtain, verify and record information that identifies you, which information includes your name and address and other information that will allow DrKW to identify you in accordance with the Act.

You acknowledge that DrKW or its affiliates may be providing financing or other services to parties whose interests may conflict with yours. DrKW agrees that it will not furnish confidential information obtained from you to any of its other customers and that it will treat confidential information relating to you, the Company and your and their respective affiliates with the same degree of care as its treat its own confidential information. DrKW further advises you that it will not make available to you confidential information that it has obtained or may

5

obtain from any other customer. In connection with the services and transactions contemplated hereby, you agree that DrKW is permitted to access, use and share with any of its bank or non-bank affiliates, agents, advisors (legal or otherwise) or representatives any information concerning you, Holdings, the Company or any of your or its respective affiliates that is or may come into the possession of DrKW or any of such affiliates.

The provisions of the immediately preceding five paragraphs shall remain in full force and effect regardless of whether any definitive documentation for the Senior Credit Facilities shall be executed and delivered, and notwithstanding the termination of this Commitment Letter or any commitment or undertaking of DrKW hereunder; provided, however, that you shall be deemed released of your reimbursement and indemnification obligations hereunder upon the execution of all definitive documentation for the Senior Credit Facilities and the initial extension of credit thereunder.

This Commitment Letter and the Fee Letter may be executed in counterparts which, taken together, shall constitute an original. Delivery of an executed counterpart of this Commitment Letter and the Fee Letter by telecopier or facsimile shall be effective as delivery of a manually executed counterpart thereof.

This Commitment Letter and the Fee Letter shall be governed by, and construed in accordance with, the laws of the State of New York. Each of you and DrKW hereby irrevocably waives any and all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Commitment Letter (including, without limitation, the Term Sheet), the Fee Letter, the Transaction and the other transactions contemplated hereby and thereby or the actions of DrKW in the negotiation, performance or enforcement hereof. The commitments and undertakings of DrKW may be terminated by us if you fail to perform your obligations under this Commitment Letter or the Fee Letter on a timely basis.

This Commitment Letter, together with the Term Sheet and the Fee Letter, embodies the entire agreement and understanding among DrKW, you, and your affiliates with respect to the Senior Credit Facilities and supersedes all prior agreements and understandings relating to the specific matters hereof. However, please note that the terms and conditions of the commitment and undertakings of DrKW hereunder are not limited to those set forth herein or in the Term Sheet and the Fee Letter. Those matters that are not covered or made clear herein or in the Term Sheet or the Fee Letter are subject to mutual agreement of the parties. No party has been authorized by DrKW to make any oral or written statements that are inconsistent with this Commitment Letter and the Fee Letter.

This Commitment Letter is not assignable by you without our prior written consent and is intended to be solely for the benefit of the parties hereto and the Indemnified Parties.

This Commitment Letter and all commitments and undertakings of DrKW hereunder will expire at 5:00 p.m. (New York City time) on August 17, 2005 unless you execute this Commitment Letter and the Fee Letter and return it to us prior to that time. Thereafter, all commitments and undertakings of DrKW hereunder will expire on the earliest of (a) November 17, 2005, unless the definitive documents for the financing of the Transaction have been executed and delivered,

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and (b) the acceptance by Holdings or any of its affiliates of an offer for all or any substantial part of the capital stock or property and assets of the Company and its subsidiaries other than as part of the Transaction. In consideration of the time and resources that DrKW will devote to the Senior Credit Facilities, you agree that, until such expiration, you will not, and will cause Holdings not to, solicit, initiate, entertain or permit, or enter into any discussions in respect of, any offering, placement or arrangement of any competing senior credit facilities for the Borrower and its subsidiaries with respect to the matters addressed in this letter.

[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

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     We are pleased to have the opportunity to work with you in connection with this important financing.

Very truly yours,
DRESDNER KLEINWORT WASSERSTEIN LIMITED.
By:	/s/ Jorge Rodriguez
	Name:	Jorge Rodriguez
	Title:	Director
By:	/s/ Stein Melsbo
	Name:	Stein Melsbo
	Title:	Managing Director

ACCEPTED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN:
MACQUARIE INFRASTRUCTURE COMPANY INC.
By:	/s/ Peter Stokes
	Name:	Peter Stokes
	Title:	Chief Executive Officer

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17 August 2005

PROJECT KIANI

STRICTLY PRIVATE & CONFIDENTIAL

OUTLINE TERMS AND CONDITIONS

LOAN FACILITIES TERM SHEET

August 2005

A structure chart is shown in Annex C — this is indicative only and will be revised subject to legal advice in the US and UK with appropriate changes to the termsheet following.

1. Facilities:	In total USD 180,000,000 comprising:
	Facility A: USD 80,000,000 term loan facility;
	Facility B: USD 80,000,000 term loan facility;
	Facility C: USD 20,000,000 revolving working capital facility;
2. Purpose:	Facility A will be available to part finance the Acquisition and costs (including finance fees, commissions, costs and expenses) incurred by the relevant Borrower in connection with Facility A and the Acquisition.
	Facility B will be available to part finance the Acquisition, and costs (including finance fees, commissions, costs and expenses) incurred by the relevant Borrower in connection with Facility B and the Acquisition.
	Facility C will be available to fund working capital and capital expenditures by the Borrower Group that are allowable for rate base calculations.
3. Borrower:	Subject to paragraph 4:
	Facility A: HGC Holdings, L.L.C., a Hawaii limited liability company (“HoldCo”)
	Facility B: The Gas Company, L.L.C., a Hawaii limited liability company (“OpCo”)
	Facility C: OpCo
4. Borrower Group:	Each of the Borrowers set out above
5. Shareholders and Ownership:	HGC Investment, L.L.C., a Delaware limited liability company (“ShareholderCo”) will own 100% of the issued

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17 August 2005

	shares in HoldCo, which in turn will own 100% of the issued shares in OpCo.
	ShareholderCo will be 100% owned by Macquarie Investment Holdings Inc. (“Macquarie”).
	The Acquisition will be funded by an amount of equity to be no less than 39% of the purchase price.
6. Acquisition:	The purchase of ShareholderCo by Macquarie.
7. Vendor:	K1 Ventures Limited
8. Mandated Lead Arranger:	DrKW
9. Bookrunner:	Mandated Lead Arranger.
10. Lenders:	Mandated Lead Arranger (through its affiliates) and one or more other banks or financial institutions to whom the Facilities may be syndicated.
11. Facility Agent and Security Trustee:	Mandated Lead Arranger.
12. Account Bank:	TBD
13. Lenders’ Counsel:	Orrick
14. Report Providers:	Technical & Regulatory: RJ Rudden/RW Beck
	Environmental: E3
	Legal: Le Boeuf, Lamb, Greene & MacRae
	Financial & Model Auditor: Ernst & Young
	Insurance: Willis
15. Signing Date:	The date of signing the finance documents (“Finance Documents”) reflecting the provisions of this Term Sheet, such documents to include, without limitation, a Facilities Agreement, an intercreditor agreement, a Hedging Strategy Letter and Security Documents.
16. Completion Date:	The date on which the Acquisition is completed.

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17 August 2005

17. Final Maturity Date:	All Facilities: 7 years from the date of first drawdown of Facility A or B (whichever is earlier).
18. Calculation Date:	Each 31st March, 30th June, 30th September and 31st December.
19. Availability Periods:	Facility A: from the Signing Date up to and including the earlier of the Completion Date and the date falling 14 months after the date of the Commitment Letter issued by DrKW. Amounts not drawn will be cancelled.
	Facility B: from the Signing Date up to and including the earlier of the Completion Date and the date falling 14 months after the date of the Commitment Letter issued by DrKW. Amounts not drawn will be cancelled.
	Facility C: from first drawdown of Facility A or B (whichever is earlier) until one month before the Final Maturity Date.
20. Arrangement Fee:	As set out in a separate fee letter.
21. Commitment Fees:	As set out in Annex B (Fee Schedule). Payable on the average daily unused portion of the Facilities calculated from the Signing Date. The Commitment Fees shall become due and payable on a pro-rata basis as Facilities A and B are funded. Commitment fees on Facility C will be payable on a pro-rata basis at the same time as each of Facility A and B are funded. Thereafter the Commitment Fees will be paid quarterly in arrears and on the earlier of full repayment or the last day of the applicable Availability Period.
22. Agency Fee:	As set out in a separate fee letter.
23. Interest Rate:	The aggregate of:
	1 the applicable Margin; and
	2 LIBOR.
24. Margin:	As set out in Annex B (Fee Schedule).
25. Default Interest Rate:	The maximum applicable Margin plus 1% per annum.
26. LIBOR:	LIBOR for selected Interest Period set by reference to the appropriate telerate page or, if this is not available, to be determined by the Senior Facility Agent by reference to

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17 August 2005

	rates quoted by Reference Banks.
27. Interest Periods:	Interest Periods will be 1, 2, 3 or 6 months (or such other periods as may be agreed) at the option of Borrower.
	No Interest Period may overrun the Final Maturity Date.
28. Interest Payments:	Interest will be payable in arrears at the end of each Interest Period provided that for any Interest Period in excess of 6 months, accrued interest will be payable on the last day of each 6 month period falling during such Interest Period and on the last day of such Interest Period.
29. Hedging Strategy:	Borrower will implement hedging of its floating interest rate risk so as to fix 90% of its projected debt outstanding for 3 years from first drawdown and 75% thereafter. The Mandated Lead Arranger will have a right of first refusal in respect of 70% of the hedging.
	Separate hedging arrangements will be put in place in respect of (i) Facility A and (ii) Facilities B and C.
30. Advances:	Drawdowns may be made on not less than 3 and not more than 7 business days notice
	Advances will be in cash, denominated in USD and will be in minimum amounts of USD 2,000,000 for Facilities A and B and USD 500,000 for Facility C.
	There will be a maximum of advances under each Facility as follows:
	Facility A: 1 drawing
	Facility B: 1 drawing
	Facility C: no more than 10 outstanding at any one time.
31. Conditions Precedent to Signing of Finance Documents:	The Finance Documents will not be signed until the Facility Agent has received and is satisfied with the following documents:
	(a) certified copies of the deed of incorporation and articles of association (or equivalent constitutive documents) of each member of the Borrower Group and each Guarantor (together the “Obligors”);
	(b) board resolutions of each relevant Obligor;

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17 August 2005

	(c) shareholders resolutions of each relevant Obligor;
	(d) specimen signatures for the person(s) authorised in the board resolutions referred to at (b) above;
	(e) a copy of the financial model showing financial projections up to December 2013 showing the ability of the Borrower Group to service the Facilities;
	(f) draft legal opinion(s) from the Mandated Lead Arranger’s counsel and/or Borrower Group’s legal counsel (as applicable);
	(g) the Hedging Strategy agreed by the Facility Agent;
	(h) Group structure chart showing the shareholding structure both pre- and post-Acquisition;
	(i) receipt of reports from each of the Report Providers and any other due diligence available to HoldCo which is material to the decision to lend, and any revisions, amendments or updates to the aforementioned due diligence [to be refined in documentation];
	(j) Copy of the Purchase Agreement relating to the Acquisition;
	(k) Such other documents, opinions and certificates as may be reasonably requested by the Facility Agent.
32. Conditions Precedent to Drawdown under Facilities A and B:	The Facilities may not be drawn until the Facility Agent has received and is satisfied with the following documents:
	(a) compliance certificate as to no breach of borrowing and/or guaranteeing limits from each relevant Obligor;
	(b) executed Finance Documents and fee letters;

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(c) receipt of all relevant corporate and shareholder consents;

(d) [certified] copies of all regulatory approvals required in respect of the Acquisition and the ability of OpCo to operate a gas distribution network;

(e) legal opinion(s) from the Mandated Lead Arranger’s Counsel and/or the Borrower’s legal counsel (as applicable);

(f) a letter of direction from HoldCo to pay the fees, costs and expenses due from the Borrower Group under the Finance Documents on first drawdown in accordance with the Fee Letters;

(g) receipt of a business plan and a budget for the first 12 months of operations of the Borrower Group;

(h) completion of the Acquisition on a basis consistent with the assumptions made in the business plan and the Share Purchase Agreement;

(i) evidence of prepayment/cancellation of existing debt of ShareholderCo, HoldCo and OpCo and discharge/release of any associated security interests, save as will be prepaid from the proceeds of drawdown of the relevant Facilities and except the following facilities which will remain: [to be agreed];

(j) evidence that ShareholderCo or a direct or indirect parent thereof has received shareholder funding in accordance with item 5 (Shareholders and Ownership) above;

(k) evidence that all necessary insurances are in or will promptly be in effect as set out in the Insurance Due Diligence Report;

(l) certification from an authorised signatory of the relevant Borrower that all conditions precedent have been satisfied and the Vendor is not entitled to refuse to complete

6

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	the relevant Acquisition;
	(m) “know your client"/money laundering documentation;
	(n) confirmation of the Sources and Uses;
	(o) confirmation that the relevant Acquisition is or will be completed in accordance with the acquisition agreements including that ShareholderCo has not waived any material condition to completion, including any MAC condition in the relevant SPA, which it would have been entitled to invoke;
	(p) delivery of Borrower Group financial statements;
	(q) evidence that each member of the Borrower Group is solvent;
	(r) evidence that Total debt / EBITDA measured for the Borrower Group on a consolidated basis does not exceed 6.6x (calculated on a 12 month forward looking basis based on the audited financial model);
	(s) satisfactory financial audit of the Target Group or waiver by the SEC of such audit requirement.
33. Conditions Precedent for each Drawdown:	Drawdown of any Facility may only be made if on the date of the drawdown request and on the drawdown date:
	1 in respect of rollover advances, no event of default is continuing or would result from the drawdown;
	2 in respect of any other advance, no event of default or potential event of default is continuing or would result from the proposed drawdown;
	3 no breach of any financial covenant would result from the drawdown; and
	4 all representations to be repeated on those dates are true.
34. Repayment:	All Facilities will be repaid in full on the Final Maturity Date.

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	Facility C is available on a fully revolving basis with each loan repaid at the end of each Interest Period provided that no Interest Period shall exceed the Final Maturity Date.
35. Voluntary Prepayment and Cancellation:	Any Facility may be prepaid and cancelled in whole or in part (if in part, in minimum amounts and multiples of USD 500,000) without penalty, but subject to any standard break costs if not repaid at the end of an Interest Period, upon five business days’ prior written notice to the Facility Agent.
	Any amount prepaid under Facilities A and B may not be redrawn.
36. Mandatory Prepayment:	Unless otherwise agreed by the Lenders, the Borrower will prepay and cancel the Facilities as follows:
	1 with the net proceeds of any disposal of assets by the Borrower Group, other than in the ordinary course of trading, above a de minimus level of disposals per financial year;
	2 in full, if more than 25% of the direct or indirect total ownership or control of a Borrower is held by any single party other than (a) Macquarie Bank Limited or any fund or other entity that is a subsidiary of (or managed by a subsidiary of) Macquarie Bank Limited or (b) any direct or indirect subsidiary of any or the foregoing;
	3 to the extent not applied in reinstatement of the relevant asset within an agreed period, with all insurance proceeds or condemnation or eminent domain proceeds excluding proceeds under business interruption insurance received in respect of the loss or destruction of assets to the extent that in aggregate they exceed USD 10 million in any financial year;
	4 In full upon the breach by OpCo of the terms of its regulatory approval to act as gas grid manager, which is likely to result in a Material Adverse Change (subject to a reasonable consultation period between the Borrower and the MLA);
	5 In full if OpCo ceases to be 100% owned and controlled by HoldCo or HoldCo ceases to be 100% owned and controlled by ShareholderCo;

8

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	6 In full upon regulatory consent being withdrawn or not renewed for the Acquisition (such consent being withdrawn or not renewed for a period of 18 months).
37. Security:	To the extent permitted by law and any licences held by the Borrower Group, the obligations will be secured as follows:
	Facility A:
	(a) a first ranking pledge over the entire issued share capital of OpCo;
	(b) first ranking security over all present and future assets of HoldCo
	(c) a first ranking pledge over the entire issued share capital of HoldCo
	Facilities B and C:
	(a) First ranking security over all present and future assets of OpCo;
	(b) A first ranking pledge over the entire issued share capital of OpCo;
	(c) A security assignment of all of Macquarie’s rights under the Share Purchase Agreement
	A full security package is expected. US advice is needed to determine exactly what security is available under US law and to remain incompliance with HPUC regulations,
38. Intercreditor arrangements	An intercreditor agreement will be entered into between all obligors, intra-group creditors, Macquarie, the finance parties and the hedging bank.
	For the avoidance of doubt, the rights of the Finance Parties in respect of Facility B and Facility C shall rank ahead of the rights of the Finance Parties in respect of Facility A.
39. Representations and Warranties:	The following representations and warranties in customary form for a facility of this nature and as appropriate to this transaction will be made, to include appropriate materiality tests, pre-agreed exceptions identified in due diligence reports or otherwise and knowledge threshold of the Borrower (and where relevant, each Obligor), such

9

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representations to be made on the Signing Date and thereafter as deemed repeated on a basis to be agreed:

1 Due incorporation of each Obligor;

2 binding obligations;

3 non-conflict with other obligations;

4 legal powers of each Obligor;

5 due authorisation by each Obligor of Finance Documents;

6 governing law, enforcement of judgments, validity and admissibility;

7 no filing or stamp taxes that have not been made/paid;

8 no default;

9 financial statements;

10 funding of pension plans and compliance with ERISA;

11 payment of taxes;

12 prior ranking status of security;

13 pari passu ranking of obligations;

14 no proceeding pending or threatened;

15 ownership of assets;

16 no breach of environmental or other laws;

17 no other business (other than that authorised by the relevant Licence(s) or those carried on as the Signing Date);

18 insurance coverage is in line with prudent market practice;

19 all consents, filings, and licences etc... required for conduct of business have been obtained and are in full force and effect;

20 no encumbrances other than permitted encumbrances;

21 no financial indebtedness other than permitted

10

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	indebtedness;
In relation to the Information memorandum this will be repeated when information is provided and on first syndication	22 accuracy of information provided to Lenders;
	23 confirmation that (i) HoldCo is owned and controlled by ShareholderCo in accordance with item 6 (Shareholders and Ownership); (ii) HoldCo is the 100% parent of OpCo;
	24 HoldCo is a holding company and is not carrying out any other business and have not incurred any liabilities other than directly relating to the ownership of the gas utility company;
	25 no Material Adverse Change since the date of the latest financial statements;
	26 no material litigation or outstanding claims;
	27 no insolvency
40. Material Adverse Change	Means a material adverse change in:
	(a) The business, operations, property, condition (financial or otherwise) or prospects of the Borrower Group taken as a whole;
	(b) The ability of a member of the Borrower Group to perform its obligations under any of the Finance Documents;
	(c) The validity or enforceability of any of the Finance Documents or the rights and remedies of any finance party under any of the Finance Documents;
	Provided, that, during the period commending on the Signing Date and ending on the date on which Facilities A and B are funded, no Material Adverse Effect shall exist so long as the Total debt / EBITDA test is satisfied as a condition precedent to such funding.
41. Information Covenants:	The Borrower to provide the following to the Facility Agent:
	1 audited financial statements for each Borrower within

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	90 days of financial year end;
	2 [un]audited financial statements and/or management accounts for each Borrower (as appropriate) for each financial quarter within 45 days;
	3 annual operating budget for the Borrower Group not less than 15 days prior to the beginning of each financial year updated as may be required and an agreed capex schedule initially for the life of the Facilities and updated on an annual basis thereafter;
	4 provision of financial and other information including annually updated business plan;
	5 other information regarding the Borrower Group as the Facility Agent may reasonably request;
	6 details of any actual or potential investigation or proceedings by any governmental authority which is likely to result in a Material Adverse Change;
	7 all material notices and material communications in connection with any material contract;
	8 details of any transfer of shares;
	9 details of any circumstances that could reasonably be expected to result in a Material Adverse Change;
	10 notification of any potential or actual Event of Default;
	11 details of any material litigation, arbitration or administrative proceedings;
	12 upon reasonable request by the Facility Agent or any Lender, such documentation or other evidence is necessary for the Senior Facility agent or Lender to carry out and be satisfied with the “know your customer” or other checks required to be carried out by local regulatory authorities.
42. Covenants:	Undertakings, applicable as appropriate to relevant members of the Borrower Group (and where relevant, each Obligor), on the following matters in customary form for transactions of this nature, to include appropriate materiality tests, permitted exceptions and, where appropriate, de minimis provisions. All undertakings are (save where indicated) to be subject to waiver or amendment with the consent of the Majority Lenders:

12

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1 procurement, compliance and maintenance of all authorisations, licences, consents;

2 compliance with legal obligations;

3 compliance with all relevant Licence(s) and any other necessary licences, permits and consents specific to any business conducted;

4 compliance with environmental laws;

5 maintain pari passu ranking of obligations;

6 negative pledge with permitted encumbrances to be agreed with the Mandated Lead Arranger;

7 restriction on the disposal and transfer of assets other than in the ordinary course of business, except for non-regulated businesses and non-regulated assets to be agreed with the Mandated Lead Arranger;

8 restriction on indebtedness;

9 restriction on acquisitions and mergers with certain exceptions (including the relevant Acquisitions) to be agreed with the Mandated Lead Arranger;

10 no change of business;

11 restriction on granting of loans [(other than inter-company loans, which shall be subordinated]);

12 no dealings other than on arms length terms;

13 insurance coverage in line with prudent industry practice;

14 adherence to the Hedging Strategy;

15 maintenance and funding of pension schemes in accordance with applicable law or regulation including ERISA;

16 restriction on guarantees and letters of credit;

17 restrictions on HoldCo acting as anything other than a holding company;

18 HoldCo to own 100% of the OpCo;

19 [restrictions on new joint ventures;]

13

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	20 no payments other than Permitted Payments;
	21 maintenance and protection of assets including material contracts, Licences, leases and intellectual property;
	22 payment of taxes;
	23 no breach of any material agreement;
	24 no change of accounting date, except as permitted;
	25 acquisition related covenants for each relevant Acquisition including prompt payment of all amounts payable to the Vendor and preservation and enforcement of rights under acquisition agreements and restriction on publicity;
	26 no abandonment of business;
	27 no amendment to constitutional documents which could reasonably be expected to result in a Material Adverse Change. Note: drafts of the constitutional documents that will apply following the completion of the Acquisition will be pre-approved by the finance parties prior to signing, if any changes are contemplated;
	28 adherence to the agreed capex schedule whilst any Lock-up is in existence;
	29 HoldCo, as the sole shareholder of OpCo, must procure that OpCo declares and pays sufficient dividends to HoldCo to enable HoldCo to meet its payment obligations to the Lenders under the Facility Agreement.
43. Financial covenants:	OpCo Test: FFO / OpCo Interest to be greater than 2.50x (calculated by reference to OpCo only)
	The above test to be calculated as described in Annex A
44. Lock-up:	OpCo Lock-up test: FFO / OpCo Interest to be greater than 3.50x (calculated by reference to OpCo only)
	The above test to be calculated as described in Annex A
	No Event of Default
	Both HoldCo and OpCo will be in Lock Up if OpCo fails the test above; provided that, so long as FFO/OpCo Interest was greater than 2.50x for the most recent period,

14

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	and no other Event of Default or potential Event of Default has occurred and is continuing, OpCo may distribute amounts sufficient to enable HGC to make any mandatory payment of interest or principal under the Facility A and with respect to the interest rate swaps entered into by HoldCo in accordance with the Hedging Strategy. Both entities will remain in Lock Up until OpCo passes two consecutive tests. Any cashflow generated whilst in Lock Up will be held in a secured account (post debt service).
45. Cash Sweep	If HoldCo and OpCo are in Lock-up for three or more consecutive tests and no Event of Default has occurred, all of the cash trapped during the quarter ending 6 months prior will be swept and used to repay and cancel Facilities A, B and C on a pro-rata basis
46. Events of Default:	As customary for a facility of this nature, applicable as appropriate to each Borrower (and where relevant, each Obligor) and subject, where appropriate, to materiality tests, permitted exceptions (to include solvent reconstruction) cure periods and de minimis provisions (in addition to any set out below). Each of the events may be waived and any remedy period extended with the approval of the Senior Facility Agent and to include:
	1 failure to pay any sum when due (with 3 business days grace for technical or administrative causes);
	2 breach of covenants, including financial covenants, and other obligations under the Finance Documents;
	3 representations or warranties untrue or misleading when made or deemed repeated;
	4 [cross default and cross acceleration only with respect to default occurring at OpCo, but in no event if default occurs at HoldCo (and not at OpCo simultaneously)];
	5 termination, transfer, revocation or modification of a relevant Licence(s), lease or other material contract which might reasonably be expected to result in a Material Adverse Change ;
	6 insolvency and related events;
	7 cessation of business;
	8 illegality;
	9 invalidity of any Finance Documents;

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	10 material qualification of accounts;
	11 repudiation of the Finance Documents;
	12 no Material Adverse Change since the date of the latest financial statements.
47. Transferability:	Lenders may, with the prior consent of the Borrowers (not to be unreasonably withheld) transfer their rights and obligations, in part or in whole to banks and other financial institutions regularly investing in loans or securities. Consent not required if to an affiliate of a Lender or if an Event of Default has occurred and is continuing.
48. Documentation:	The Facilities will be evidenced by the Facilities Agreement and other relevant Finance Documents. The Facilities Agreement, which will be documented under the laws of the State of New York, will contain standard provisions relating to, inter alia, increased costs, illegality, taxes, market disruption, breakage costs, default interest, right of set off, pro rata sharing, customary agency language, full risk indemnities and changes in currency. Lenders other than the Mandated Lead Arranger will become party to the Facilities Agreement by way of transfer certificate.
49. Expenses	The Borrower will pay all reasonable costs and expenses associated with the preparation, due diligence, administration, syndication and closing of all loan documentation, including, without limitation, the legal fees of the counsel to the Administrative Agent, regardless of whether or not the Senior Credit Facilities are closed. The Borrower will also pay the expenses of the Administrative Agent and each Lender in connection with the enforcement of any of the loan documentation.
50. Law & Jurisdiction:	This Term Sheet and all Finance Documents will be governed by New York law and will be subject to the exclusive jurisdiction of the courts of the State of New York.

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ANNEX A

Calculation Periods and Dates

The covenants will be tested quarterly on 31^st March, 30^th June, 30^th September, and 31^st December (each a “Calculation Date”) and will be calculated on both a 12 month forward (solely with respect to the OpCo Lock-up test) and backward looking basis, provided that the first test on a backward looking basis shall not occur until the first calculation date following the expiry of 12 months from the Signing Date. For the forward-looking portion of the testing, the Borrower’s business plan, as updated, will form the basis of the test.

Funds From Operations (“FFO”) means EBITDA adjusted for changes in working capital less tax less maintenance capex

Compliance with the covenants will be certified quarterly by way of compliance certificates signed by two directors of the Borrower and, to the extent that it is based on audited financial information, the auditors will confirm compliance annually.

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ANNEX B

Fee Schedule

(1)	Commitment Fee
	35% of the margin
(2)	Margin
	Facility A:	Yrs 1-5:	0.60	%
		Yrs 6-7:	0.70	%
	Facility B:	Yrs 1-5:	0.40	%
		Yrs 6-7:	0.50	%
	Facility C:	Yrs 1-5:	0.40	%
		Yrs 6-7:	0.50	%

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ANNEX C

Structure Chart

New Equity Investors Shareholder LLC 100% HoldCo 100% OpCo 100% Assets Businesses Debt USD 80M Debt USD 80M +USD 15M RCF Lenders Lenders

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Disclaimer:

This Summary of Terms and Conditions is to be used as a basis for continued discussions, and does not constitute an offer or give rise to any obligations on the part of DrKW or any of its affiliates or other entities to arrange, underwrite or provide, or commit to arrange, underwrite or provide the Financing. The delivery of a commitment would be subject, among other things, to (i) DrKW’s satisfaction with the results of its legal and other due diligence and (ii) final credit approval by DrKW for the Financing. These Summary Terms and Conditions may be modified or supplemented by DrKW in its sole discretion at any time and from time to time whether by reason of the results of its due diligence, credit approval process, as a result of changed market conditions or otherwise. These Summary Terms and Conditions are to be treated as strictly confidential and shall not be disclosed to, or relied upon by, any person except as required by law or to comply with the rules of any regulatory body or to employees or legal or financial advisers who have a need to know this information and who are made aware of and agree to be bound by these confidentiality obligations. DrKW shall not be responsible or liable to any person or entity for any damages or loss that may be alleged as a result of these Summary Terms and Conditions.

20

EX-10.2

EXHIBIT 10.2

LOAN AGREEMENT

[LIBOR]

BETWEEN

PCAA SP, LLC, A DELAWARE LIMITED LIABILITY COMPANY

AS BORROWER

AND

GMAC COMMERCIAL MORTGAGE BANK, A UTAH INDUSTRIAL BANK

AS LENDER

DATED AS OF OCTOBER 3, 2005

Loan Number: 48442

TABLE OF CONTENTS

		Page
ARTICLE 1	DEFINED TERMS AND CONSTRUCTION GUIDELINES		1
1.01.	Defined Terms		1
1.02.	General Construction		1
1.03.	Property		1
ARTICLE 2	LOAN AMOUNT; PAYMENT TERMS; ADVANCES		2
2.01.	Commitment to Lend		2
2.02.	Calculation of Interest		2
2.03.	Payment of Principal and Interest		4
2.04.	Payments Generally		6
2.05.	Prepayment Rights		7
2.06.	Right of First and Last Refusal		8
2.07.	Interest Rate Cap/Hedge		9
ARTICLE 3	CASH MANAGEMENT		10
3.01.	Lockbox		10
ARTICLE 4	ESCROW AND RESERVE REQUIREMENTS		10
4.01.	Creation and Maintenance of Escrows and Reserves		10
4.02.	Tax Escrow		12
4.03.	Insurance Premium Escrow		13
4.04.	Capital Improvements/Deferred Maintenance Escrow Account		14
4.05.	Replacement Reserve Account		14
4.06.	Intentionally Omitted		15
4.07.	Intentionally Omitted		15
4.08.	Leasehold Payment Reserve Account		15
ARTICLE 5	COMPLETION OF REPAIRS RELATED TO RESERVE ACCOUNTS; CONDITIONS TO RELEASE OF FUNDS		16
5.01.	Conditions Precedent to Disbursements from Certain Reserve Accounts		16
5.02.	Waiver of Conditions to Disbursement		18
5.03.	Direct Payments to Suppliers and Contractors		18
5.04.	Performance of Reserve Items		18
ARTICLE 6	LOAN SECURITY AND RELATED OBLIGATIONS		19

-i-

TABLE OF CONTENTS
(continued)

		Page
6.01.	Security Instrument and Assignment of Rents and Leases		19
6.02.	Assignment of Property Management Contract		19
6.03.	Assignment of Rate Cap Agreement		19
6.04.	Assignment of Operating Agreements		19
6.05.	Pledge as Property; Grant of Security Interest		20
6.06.	Environmental Indemnity Agreement		20
6.07.	Guaranty of Borrower Sponsors		20
6.08.	Letter of Credit		20
ARTICLE 7	SINGLE PURPOSE ENTITY REQUIREMENTS		21
7.01.	Commitment to be a Single Purpose Entity		21
7.02.	Definition of Single Purpose Entity		22
ARTICLE 8	REPRESENTATIONS AND WARRANTIES		26
8.01.	Organization; Legal Status		26
8.02.	Power; Authorization; Enforceable Obligations		26
8.03.	No Legal Conflicts		26
8.04.	No Litigation		26
8.05.	Business Purpose of Loan		27
8.06.	Warranty of Title		27
8.07.	Condition of the Property		27
8.08.	No Condemnation		27
8.09.	Requirements of Law		27
8.10.	Operating Permits		27
8.11.	Separate Tax Lot		28
8.12.	Flood Zone		28
8.13.	Adequate Utilities		28
8.14.	Public Access		28
8.15.	Boundaries		28
8.16.	Mechanic Liens		28
8.17.	Assessments		28
8.18.	Insurance		28

-ii-

TABLE OF CONTENTS
(continued)

		Page
8.19.	Leases		29
8.20.	Management Agreement		29
8.21.	Financial Condition		29
8.22.	Taxes		29
8.23.	No Foreign Person		29
8.24.	Federal Regulations		30
8.25.	Investment Company Act; Other Regulations		30
8.26.	ERISA		30
8.27.	No Illegal Activity as Source of Funds		30
8.28.	Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws		30
8.29.	Brokers and Financial Advisors		30
8.30.	Equity Contribution		30
8.31.	Complete Disclosure; No Change in Facts or Circumstances		31
8.32.	Ground Leases		31
8.33.	Survival		32
8.34.	Philadelphia Joint Operation		32
Under	certain circumstances, Borrower has the right to exercise an option to lease from PCAA, and PCAA has an obligation to lease to Borrower, one hundred fifty (150) parking spaces located on the PCAA Property		32
ARTICLE 9	BORROWER COVENANTS		32
9.01.	Payment of Debt and Performance of Obligations		32
9.02.	Payment of Taxes and Other Lienable Charges		32
9.03.	Insurance		33
9.04.	Obligations upon Condemnation or Casualty		38
9.05.	Inspections and Right of Entry		42
9.06.	Leases and Rents		42
9.07.	Use of Property		43
9.08.	Maintenance of Property		44
9.09.	Waste		44

-iii-

TABLE OF CONTENTS
(continued)

		Page
9.10.	Compliance with Laws		44
9.11.	Financial Reports, Books and Records		44
9.12.	Performance of Other Agreements		46
9.13.	Existence; Change of Name; Location as a Registered Organization		47
9.14.	Property Management		47
9.15.	ERISA		48
9.16.	Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws		48
9.17.	Equity Contribution		48
9.18.	Net Worth Covenant		48
9.19.	Liquidity Covenant		48
9.20.	Ground Lease Covenants		48
ARTICLE 10	NO TRANSFERS OR ENCUMBRANCES; DUE ON SALE		50
10.01.	Prohibition Against Transfers		50
10.02.	Lender Approval		51
10.03.	Borrower Right to Partial Releases for Partial Release Price		51
10.04.	Other Releases of the Mortgaged Property		54
10.05.	OFAC Compliance ; Substantive Consolidation Opinion		54
ARTICLE 11	EVENTS OF DEFAULT; REMEDIES		55
11.01.	Events of Default		55
11.02.	Remedies		57
11.03.	Cumulative Remedies; No Waiver; Other Security		59
11.04.	Enforcement Costs		60
11.05.	Application of Proceeds		60
11.06.	Cross-Default; Cross-Collateralization; Waiver of Marshalling of Assets		60
ARTICLE 12	NONRECOURSE — LIMITATIONS ON PERSONAL LIABILITY		61
12.01.	Nonrecourse Obligation		61
12.02.	Full Personal Liability		61

-iv-

TABLE OF CONTENTS
(continued)

		Page
12.03.	Personal Liability for Certain Losses		61
12.04.	No Impairment		62
12.05.	No Waiver of Certain Rights		63
ARTICLE 13	INDEMNIFICATION		63
13.01.	Indemnification Against Claims		63
13.02.	Duty to Defend		63
ARTICLE 14	SUBROGATION; NO USURY VIOLATIONS		64
14.01.	Subrogation		64
14.02.	No Usury		64
ARTICLE 15	SALE OR SECURITIZATION OF LOAN		65
15.01.	Splitting the Note		65
15.02.	Lender's Rights to Sell or Securitize		65
15.03.	Dissemination of Information		66
15.04.	Reserve Accounts		66
15.05.	Securitization Indemnification		66
15.06.	Additional Financial Information for Large Loans		67
ARTICLE 16	BORROW FURTHER ACTS AND ASSURANCES PAYMENT OF SECURITY RECORDING CHARGES		68
16.01.	Further Acts		68
16.02.	Replacement Documents		69
16.03.	Borrower Estoppel Certificates		69
16.04.	Recording Costs		70
16.05.	Publicity		70
ARTICLE 17	LENDER CONSENT		70
17.01.	No Joint Venture; No Third Party Beneficiaries		70
17.02.	Lender Approval		70
17.03.	Performance at Borrower's Expense		70
17.04.	Non-Reliance		71
ARTICLE 18	MISCELLANEOUS PROVISIONS		71
18.01.	Notices		71

-v-

TABLE OF CONTENTS
(continued)

		Page
18.02.	Entire Agreement; Modifications; Time of Essence		72
18.03.	Binding Effect; Joint and Several Obligations		73
18.04.	Duplicate Originals; Counterparts		73
18.05.	Unenforceable Provisions		73
18.06.	Governing Law		73
18.07.	Consent to Jurisdiction		73
18.08.	WAIVER OF TRIAL BY JURY		73
18.09.	Good Faith		74
ARTICLE 19	LIST OF DEFINED TERMS		74
19.01.	Definitions		74
ARTICLE 20	FUTURE FUNDINGS		90
20.01.	General		90

-vi-

  Loan Number: 48442

LOAN AGREEMENT

(Libor Rate Loan)

          THIS LOAN AGREEMENT is made as of this 3^rd day of October, 2005 by PCAA SP, LLC, a Delaware limited liability company (“Borrower”), as borrower, and GMAC COMMERCIAL MORTGAGE BANK, a Utah industrial bank (together with its successors and assigns, “Lender”), as lender.

Background

          Borrower desires to obtain a commercial mortgage loan from Lender in the maximum principal amount of $58,740,000.00 in lawful money of the United States of America. Lender is willing to make such loan to Borrower on the terms and conditions set forth in this Loan Agreement.

Agreement

          NOW, THEREFORE, in consideration of such loan and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, Borrower and Lender agree as follows:

ARTICLE 1

DEFINED TERMS AND CONSTRUCTION GUIDELINES

     1.01. Defined Terms. Each defined term used in this Loan Agreement has the meaning given to that term in Article 19 of this Loan Agreement unless otherwise stated in any other provision hereof.

     1.02. General Construction. Defined terms used in this Loan Agreement may be used interchangeably in singular or plural form, and pronouns are to be construed to cover all genders. All references to this Loan Agreement or any agreement or instrument referred to in this Loan Agreement shall mean such agreement or instrument as originally executed and as hereafter amended, supplemented, extended, consolidated, restated or reinstated from time to time. The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Loan Agreement as a whole and not to any particular subdivision; and the words “Article” and “section” refer to the entire article or section, as applicable and not to any particular subsection or other subdivision. Reference to days for performance means calendar days unless Business Days are expressly indicated.

     1.03. Property. The parties hereto acknowledge that the defined term “Property” has been defined to collectively include each Individual Property. All references to “Property” in this Loan Agreement shall be deemed to refer to one or more Individual Properties, as the context requires. It is the intent of the parties hereto in making any determinations under this Loan Agreement, including, without limitation, in determining whether (a) breach of a representation, warranty or a covenant has occurred, (b) there has occurred a default or Event of

Default, or (c) an event has occurred which would create recourse obligations under Article 12 of this Loan Agreement, that any such breach, occurrence or event with respect to any Individual Property shall be deemed to be such a breach, occurrence or event with respect to the Loan.

ARTICLE 2

LOAN AMOUNT; PAYMENT TERMS; ADVANCES

     2.01. Commitment to Lend.

          (a) Loan Amount Approved. Subject to the terms and conditions set forth herein, and in reliance on Borrower’s representations, warranties and covenants set forth herein, Lender agrees to loan the Loan Amount to Borrower. The Loan shall be evidenced by this Loan Agreement and by the Note made by Borrower to the order of Lender and shall bear interest and be paid upon the terms and conditions provided herein.

          (b) Advance of Loan Amount. On the Closing Date, Lender shall advance the entire Loan Amount to Borrower.

     2.02. Calculation of Interest.

          (a) Calculation Basis. Interest due on the Loan shall be paid for each Interest Accrual Period, calculated based on a 360-day year and paid for the actual number of days elapsed for any whole or partial month in which interest is being calculated.

          (b) Initial Applicable Interest Rate and Interest Rate Adjustment Date. Interest shall accrue on outstanding principal at the rate (“Applicable Interest Rate”) which is the LIBOR Rate plus two and seventy-five one-hundredths percent (2.75%)(as the same may be increased pursuant to Section 2.03(d)(ii)(E) below, “Margin”). Adjustments to the Applicable Interest Rate in connection with changes in the LIBOR Rate shall be made on the Interest Rate Adjustment Date, except that the initial Applicable Interest Rate shall be determined two (2) Business Days prior to the Closing Date.

          (c) LIBOR Unascertainable. Lender’s obligation to maintain interest based on the LIBOR Rate shall be suspended and the Applicable Interest Rate shall be based on the Interest Rate Index (plus Margin) upon Lender’s determination, in good faith, that adequate and reasonable means do not exist for ascertaining the LIBOR Rate or that a contingency has occurred which materially and adversely affects the London Interbank Eurodollar Market at which Lender prices loans (which determination by Lender shall be conclusive and binding on Borrower in the absence of manifest error). Computation of the Applicable Interest Rate based on the Interest Rate Index shall continue until Lender determines that the circumstances giving rise to Lender’s substitution of the Interest Rate Index for the LIBOR Rate no longer exist. Lender shall promptly notify Borrower of each such determination.

          (d) Adjustment Due to Calculation Errors. If, at any time, Lender determines that it has miscalculated the Applicable Interest Rate (whether because of a miscalculation of the LIBOR Rate or otherwise), Lender shall promptly notify Borrower of the necessary correction.

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If the corrected Applicable Interest Rate represents an increase in the applicable monthly payment, Borrower shall, within ten (10) days after receipt of such written notice, pay to Lender the corrected amount. If the corrected Applicable Interest Rate represents an overpayment by Borrower to Lender and no Event of Default then exists, Lender shall refund the overpayment to Borrower or, at Lender’s option, credit such amounts against Borrower’s payment next due hereunder.

          (e) Adjustment for Impositions on Loan Payment. All payments made by Borrower hereunder shall be made free and clear of, and without reduction for, or on account of, any income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings hereafter imposed, levied, collected, withheld or assessed by any government or taxing authority (other than taxes on the overall net income or overall gross receipts of Lender imposed as a result of a present or former connection between Lender and the jurisdiction of the government or taxing authority imposing such; this exclusion shall not apply to a connection arising solely from Lender’s having executed, delivered, performed its obligations under, received a payment under, or enforced this Loan Agreement or any other Loan Document). If any such amounts are required to be withheld from amounts payable to Lender, the amounts payable to Lender under these Loan Documents shall be increased to the extent necessary to yield to Lender, after payment of such amounts, interest or any such other amounts payable at the rates or in the amounts specified herein. If any such amounts are payable by Borrower, Borrower shall pay all such amounts before penalties or interest begin to accrue thereon and promptly send Lender a certified copy of an original official receipt showing payment thereof. If Borrower fails to pay such amounts before penalties or interest begin to accrue thereon or to deliver the required receipt to Lender, Borrower shall indemnify Lender for any incremental taxes, interest or penalties that may become payable by Lender as a result of any such failure.

          (f) Increased Costs of Maintaining Interest. If Lender determines that the adoption of any law, regulation, rule or guideline (including, without limitation, any change regarding the imposition or increase in reserve requirements but excluding taxes on the overall net income or overall gross receipts of Lender imposed as a result of a present or former connection between Lender and the jurisdiction of the government or taxing authority imposing such), whether or not having the force of law, does or will have the effect of reducing Lender’s rate of return on the Loan, then, from time to time, within five (5) business days after written demand by Lender (which demand shall include an itemized calculation of the additional amounts necessary to compensate Lender for such reduction), Borrower shall pay Lender such additional amount as will compensate Lender for its reduction. In addition, if any law, regulation, rule or guideline hereafter is enacted or modified, whether or not having the force of law, and compliance therewith results in an increase in the cost to Lender (including, without limitation, a reduction in the income received by Lender but excluding taxes on the overall net income or overall gross receipts of Lender imposed as a result of a present or former connection between Lender and the jurisdiction of the government or taxing authority imposing such) in making, funding or maintaining interest on the Loan at the rate herein provided, then, within five (5) business days after written demand by Lender, Borrower shall pay Lender the additional amounts necessary to compensate Lender for such increased costs.

          (g) Acceleration. Notwithstanding anything to the contrary contained herein, if Borrower is prohibited by law from paying any amount due to Lender under Section 2.02(e) or

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(f), Lender may elect to declare the unpaid principal balance of the Loan, together with all unpaid interest accrued thereon and any other amounts due hereunder, due and payable within one hundred twenty (120) days after Lender’s written notice to Borrower. No Prepayment Fee shall be due in such event. Lender’s delay or failure in accelerating the Loan upon the discovery or occurrence of an event under Section 2.02(e) or (f) shall not be deemed a waiver or estoppel against the exercise of such right.

     2.03. Payment of Principal and Interest.

          (a) Payment at Closing. If the Loan is funded on a date other than the fifteenth (15th) day of a calendar month, Borrower shall pay to Lender at the time of funding an interest payment calculated by multiplying (i) (x) if the Closing Date is prior to the fifteenth (15th) day of a calendar month, the number of days from and including the Closing Date to (but excluding) the fifteenth (15th) day of the current month and (y) if the Closing Date is after the fifteenth (15th) day of the month, the number of days from and including the Closing Date to (but excluding) the fifteenth (15th) day of the next calendar month by (ii) a daily rate based on the Applicable Interest Rate effective on the Closing Date and calculated for a 360-day year.

          (b) Payment Dates. Commencing on the ninth (9th) day of November, 2005 and continuing on the ninth (9th) day of each and every successive month thereafter, provided that, if the ninth (9th) day of any month is not a Business Day, such payment shall be due and payable on the immediately following Business Day (each, a “Payment Due Date”), through and including the Payment Due Date immediately prior to the Maturity Date, Borrower shall pay consecutive monthly payments of interest only, at the Applicable Interest Rate (determined as of the immediately preceding Interest Rate Adjustment Date), based on principal advanced and outstanding during the Interest Accrual Period in which the applicable Payment Due Date occurs and any amounts due pursuant to Section 2.02 of this Loan Agreement.

          (c) Maturity Date. Subject to Section 2.03(d) below, on the ninth (9th) day of October, 2008 (“Maturity Date”), Borrower shall pay the entire outstanding principal balance of the Loan, together with all accrued but unpaid interest thereon through the end of the then–current Interest Accrual Period and all other amounts due under this Loan Agreement, the Note or any other Loan Document; provided that, if the ninth (9th) day of such month is not a Business Day, such payment shall be due and payable on the immediately preceding Business Day.

          (d) Extension of Maturity Date.

(i) Extension Option. Borrower has the right to extend the Maturity Date of the Loan for two (2) additional, consecutive, twelve-month terms (each an “Extension Term”), with the first additional term having twelve (12) months (“First Extension Term”) and extending the Maturity Date to October 9, 2009 (“First Extended Maturity Date”), and the second additional term having twelve (12) months (“Second Extension Term”) and extending the First Extended Maturity Date to October 9, 2010 (“Second Extended Maturity Date”). Upon Borrower’s proper and timely exercise of

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	its rights under this Section 2.03(d), the term “Maturity Date” shall be deemed to mean the First Extended Maturity Date and, as applicable, the Second Extended Maturity Date.
(ii)	Conditions Precedent to Maturity Date Extension. Each of the following conditions must be satisfied in a manner reasonably acceptable to Lender (or waived in writing by Lender) as a condition precedent to extension of the Maturity Date:

                              (A) Borrower delivers written notice to Lender not more than ninety (90) days and not less than thirty (30) days prior to the expiring Maturity Date advising that Borrower is exercising its extension option, together with all materials needed by Lender to confirm that the Property satisfies the performance criteria identified in subsection (D) below.

                              (B) Intentionally omitted.

                              (C) No Event of Default exists as of the date Borrower exercises such extension option and as of the commencement date of the relevant Extension Term.

                              (D) Borrower demonstrates to Lender’s satisfaction that the Property achieved and maintained, prior to the commencement date of the relevant Extension Term, the following performance criteria: (1) for the First Extension Term, a Debt Service Coverage Constant Ratio of at least 1.15:1.00 and (2) for the Second Extension Term, a Debt Service Coverage Constant Ratio of at least 1.15:1.00. Notwithstanding the foregoing, Lender reserves the right at least thirty (30) days prior to the expiration of the then Term of the Loan, to reconfirm that the Property continues to achieve the foregoing performance criteria, based upon the most recently available financial statements, and to condition the extension on such performance criteria being sustained until the commencement of the Extension Term. If such performance criteria have not been achieved as of the date Borrower exercises its extension option or any subsequent verification thereof made by Lender at least thirty (30) days prior to the expiration of the then Term of the Loan and the Lender notifies the Borrower of such failure to achieve the performance criteria not less than thirty (30) days prior to the expiration of the then Term of the Loan, prior to commencement of the Extension Term, Borrower may extend the Maturity Date provided that Borrower pays to Lender a portion of the outstanding principal in such amount necessary for the Property to achieve the foregoing performance criteria as of the commencement date of the Extension Term.

                              (E) Effective as of October 15, 2008, and ending on the First Extended Maturity Date, the Margin shall be equal to 2.95%, and effective as of October 15, 2009 and ending on the Second Extended Maturity Date, the Margin shall be equal to 3.15%.

                              (F) With respect to the First Extension Term, Borrower (i) obtains, and assigns to the benefit of Lender, a Rate Cap which (1) will be effective for the Extension Term and provide for payments whenever the LIBOR Rate exceeds a strike price determined by Lender for the Extension Term such that a minimum Debt Service Coverage Ratio of 1.30:1.00 is maintained, (2) with a notional amount equal to the Outstanding Loan Amount

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and (3) otherwise satisfies all requirements of Section 2.07 of this Loan Agreement or (ii) provides evidence, satisfactory to Lender in its sole discretion, that the Rate Cap has been extended until the First Extended Maturity Date.

                              (G) Borrower executes and delivers to Lender an amendment to this Loan Agreement, reasonably acceptable to Lender in all respects, which confirms the date to which the Maturity Date has been extended, the principal and interest amounts payable during the Extension Term and such other matters as Lender may reasonably require.

                              (H) Borrower reimburses Lender for all out-of-pocket costs reasonably incurred by Lender in processing the extension request, including, without limitation, reasonable legal fees and expenses and, if the Loan has been included in a Securitization, a Rating Confirmation.

     2.04. Payments Generally.

          (a) Delivery of Payments. All payments due to Lender under this Loan Agreement and the other Loan Documents are to be paid to Lender at Lender’s office located at 200 Witmer Road, P.O. Box 809, Horsham, Pennsylvania 19044, Attn: Servicing — Accounting Manager, or at such other place as Lender may designate to Borrower in writing from time to time in immediately available funds. All amounts due under this Loan Agreement and the other Loan Documents shall be paid without setoff, counterclaim or any other deduction whatsoever.

          (b) Credit for Payment Receipt. No payment due under this Loan Agreement or any of the other Loan Documents shall be deemed paid to Lender until received by Lender at its designated office on a Business Day prior to 2:00 p.m. Eastern Standard Time. Any payment received after the time established by the preceding sentence shall be deemed to have been paid on the immediately following Business Day. Each payment that is paid to Lender within ten (10) days prior to the date on which such payment is due, and prior to its scheduled Payment Due Date, shall not be deemed a prepayment and shall be deemed to have been received on the Payment Due Date solely for the purpose of calculating interest due.

          (c) Invalidated Payments. If any payment received by Lender is deemed by a court of competent jurisdiction to be a voidable preference or fraudulent conveyance under any bankruptcy, insolvency or other debtor relief law, and is required to be returned by Lender, then the obligation to make such payment shall be reinstated, notwithstanding that the Note may have been marked satisfied and returned to Borrower or otherwise canceled, and such payment shall be immediately due and payable upon demand.

          (d) Late Charges. If any payment due on a Payment Due Date is not received by Lender on the Payment Due Date, Borrower shall pay to Lender, immediately and without demand, a late fee equal to five percent (5%) of such delinquent amount (provided, however, that Lender agrees to waive the late charge provided in this subsection (d) if and only if (i) such payment is received by Lender within five (5) days after the applicable Payment Due Date and (ii) Borrower’s failure to make the payment on the Payment Due Date occurs no more than once in any calendar year during the term of the Loan).

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          (e) Default Interest Rate. If the Loan is not paid in full on or before the Maturity Date (subject to any extension thereto properly exercised by Borrower in accordance with this Loan Agreement) or, if the Loan is accelerated following an Event of Default and during the continuance thereof, the interest rate then payable on the Loan shall immediately increase to the Applicable Interest Rate plus five hundred (500) basis points (the “Default Rate”) and continue to accrue at the Default Rate until full payment is received or such Event of Default is waived in writing by Lender. In addition, Lender shall have the right, without acceleration of the Loan, to collect interest at the Default Rate on any other payment not described in the first sentence of this subsection (e) due hereunder (including, without limitation, late charges and fees for legal counsel) which is not received by Lender within five (5) days of the date on which such payment originally was due, taking into account any applicable grace, notice and/or cure periods. Interest at the Default Rate also shall accrue on any judgment obtained by Lender in connection with collection of the Loan or enforcement of any obligations due under the other Loan Documents until such judgment amount is paid in full.

          (f) Application of Payments. Payments of principal and interest due from Borrower shall be applied first to the payment of late fees, then to Lender advances made to protect the Property or to perform obligations which Borrower failed to perform, then to the payment of accrued but unpaid interest (including, without limitation, any interest at the Default Rate), and then to reduction of the outstanding principal. If at any time Lender receives less than the full amount due and payable on a Payment Due Date, Lender may apply the amounts received to amounts then due and payable in any manner and in any order determined by Lender, in its sole discretion. Following an Event of Default, Lender may apply all payments to amounts then due in any manner and in any order determined by Lender, in its sole discretion. Lender’s acceptance of a payment from Borrower in an amount that is less than the full amount then due and Lender’s application of such payments to amounts then due from Borrower shall not constitute or be deemed to constitute a waiver of the unpaid amounts or an accord and satisfaction. No principal amount repaid may be reborrowed.

     2.05. Prepayment Rights.

          (a) Intentionally Omitted.

          (b) Prepayment. Borrower may prepay principal in whole or in part, on any Payment Due Date as long as each of the following conditions are satisfied:

(i)	Borrower provides written notice to Lender of its intent to prepay not more than sixty (60) days and not less than thirty (30) days prior to the intended prepayment date.
(ii)	No Event of Default exists as of the date Borrower delivers notice of intent to prepay and as of the date such prepayment is made.
(iii)	Borrower pays the following prepayment consideration (“Prepayment Fee”) with such prepayment:

                              (A) one percent (1.00%) of the amount prepaid if the prepayment is made on or before the twelfth (12^th) Payment Due Date;

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                              (B) one-half of one percent (0.50%) of the amount prepaid if the prepayment is made after the Payment Due Date stated in clause (A) above but on or before the eighteenth (18^th) Payment Due Date; and

                              (C) zero percent (0.00%) of the amount prepaid if the prepayment is made after the Payment Due Date stated in clause (B) above but on or before the Maturity Date.

(iv)

Borrower pays with such prepayment all accrued interest through the end of the then–current Interest Accrual Period and all other outstanding amounts then due and unpaid under this Loan Agreement and the other Loan Documents.

(v)

Lender acknowledges that the above Prepayment Fee shall not be due in connection with a refinancing of the Loan (including a possibly combined refinancing of the Loan and the existing $126,000,000 loan from GMAC Commercial Mortgage Corporation to affiliates of the Borrower), to the extent that the Lender and/or its affiliates refinance a portion of Loan or the combined loans in an aggregate amount of the Outstanding Loan Amount at the time of the refinancing, provided that if the aggregate amount of the loans refinanced by the Lender and/or its affiliates is less than the Outstanding Loan Amount, the Prepayment Fee shall be reduced pro rata by the portion of the Outstanding Loan Amount so refinanced by the lender and its affiliates.

          (c) Intentionally Omitted.

          (d) Prepayment as a Result of a Casualty or Condemnation or Charges on Lender. Prepayments arising from Lender’s application of insurance proceeds upon the occurrence of a Casualty, the application of a condemnation award upon the occurrence of a Condemnation, or as set forth in Section 2.02(g) may be made without payment of the Prepayment Fee.

          (e) Notice Irrevocable. Notwithstanding any provision of this Loan Agreement to the contrary, Borrower’s notice of prepayment in accordance with subsection 2.05(b) above shall be irrevocable, and the principal balance to be prepaid shall be absolutely and unconditionally due and payable on or about the date specified in such notice.

     2.06. Right of First and Last Refusal. In consideration for Lender’s agreement to waive its customary exit fee, during the first thirty-six (36) months of the term of the Loan, Borrower agrees to grant to Lender the right of first and last refusal to refinance the Loan unless such refinancing is provided by the ultimate controlling shareholder of the Borrower and further agrees in the event of the sale of all or part of the Property, to introduce Lender to the prospective purchaser of all or part of the Property. Borrower reserves the sole and exclusive right to select the source(s) of all refinancing proposals. If Lender does not agree, in writing, to

8

refinance the Loan upon the same terms set forth in any bona fide refinancing proposal received by Borrower (a “Refinancing Proposal”) within seven (7) days after Borrower gives Lender written notice of the terms of such Refinancing Proposal, Lender’s rights under this Section shall terminate, provided, however, that if the material economic terms set forth in the Refinancing Proposal are modified in any material way adverse to Borrower prior to the closing of the new loan, Borrower shall once again notify Lender of same, and Lender shall have seven (7) days to notify Borrower of its intent to match the revised Refinancing Proposal. If Lender does not so notify Borrower within such seven (7) day period, Lender’s rights under this Section shall terminate.

     2.07. Interest Rate Cap/Hedge.

          (a) Initial Interest Rate Cap. On or before the date hereof, Borrower shall obtain (i) a Rate Cap with a notional amount equal to the Loan Amount for the benefit of Lender which provides for payments to be made by the Rate Cap Provider if, at any time during the term of the Loan, the LIBOR Rate exceeds the Strike Rate, or (ii) a Rate Swap Agreement acceptable to Lender in its sole discretion. Each Rate Cap required hereunder must: (i) be issued by a Rate Cap Provider that satisfies the credit criteria set forth below in Section 2.07(c); (ii) be fully effective as of the Closing Date; (iii) permit Borrower’s interest in the Rate Cap to be assigned to Lender without the payment of fees or costs and without the Rate Cap Provider’s consent; (iv) contain no cross-defaults to any other agreements among any Borrower, Rate Cap Provider and Lender, or any of their respective Affiliates; (v) contain no performance obligations of Borrower or Lender beyond Borrower’s payment of a one-time fee at the effective date of the Rate Cap Agreement; (vi) be evidenced by a Rate Cap Agreement acceptable to Lender in all respects and delivered to Lender on the Closing Date, fully executed, along with a legal opinion from Rate Cap Provider’s counsel (which maybe in-house counsel) as to the authorization, execution and delivery by Rate Cap Provider and enforceability in accordance with its terms (vii) comply with criteria issued by any of the Rating Agencies regarding interest rate cap agreements including, without limitation, the requirement for additional legal opinions from Rate Cap Provider’s counsel; (viii) otherwise be reasonably satisfactory to Lender in all respects; and (ix) have a notional amount equal to the Loan Amount.

          (b) Assignment to Lender as Collateral. The Rate Cap and each replacement of a Rate Cap and each Rate Cap that Borrower is required to provide in connection with the extension of the Maturity Date; shall be assigned to Lender as collateral. Borrower acknowledges that Borrower’s assignment of the Rate Cap to Lender shall not be deemed completed until such time as Borrower has delivered to Lender a written acknowledgement from the Rate Cap Provider of Borrower’s assignment of the Rate Cap to Lender that is acceptable to Lender in all respects. All payments made by the Rate Cap Provider shall be made directly to the Lockbox Account. Failure by the Rate Cap Provider to make any payment under the Rate Cap shall not relieve Borrower of any of its obligations to make any payments hereunder or any other Loan Documents.

          (c) Credit Rating of Cap Provider; Replacement Upon Adverse Change in Rating. The Rate Cap must be issued by a Rate Cap Provider having (i) a long term unsecured debt rating of at least “A+” from S&P; or (ii) a short-term unsecured debt rating of at least “A-1” from S&P; or (iii) an equivalent rating by a Rating Agency approved by Lender. If, at any

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time during the term of the Loan, the Rate Cap Provider’s credit rating falls below that required in the previous sentence, Lender shall have the right to require that Borrower, at Borrower’s expense, provide a replacement Rate Cap from a different Rate Cap Provider which satisfies the required credit rating. Each replacement Rate Cap shall satisfy all requirements of this Section 2.07 and, unless otherwise agreed by Lender, shall be substantially in the form of the Rate Cap Agreement assigned to Lender as of the Closing Date. Each replacement Rate Cap and all required documents must be delivered to Lender within ten (10) Business Days of Lender’s notification that a replacement Rate Cap is required.

          (d) Borrower’s Payment of Lender Review Expenses. Borrower shall pay all reasonable, out-of-pocket expenses incurred by Lender in connection with Lender’s review and approval of the initial Rate Cap and Rate Cap Provider, each Rate Cap due in connection with an extension of the Maturity Date, and each replacement of a Rate Cap that is required under the terms of this Loan Agreement, including, without limitation, reasonable out-of-pocket legal fees and expenses.

ARTICLE 3

CASH MANAGEMENT

     3.01. Lockbox. Borrower acknowledges that all Operating Income from the Property is deposited into blocked bank accounts at local banks (“Property Banks”) by Borrower no less than twice weekly and, Borrower shall cause such Property Manager to do likewise. Borrower shall direct all Property Banks to make deposits of all Operating Income (other than petty cash not to exceed $1,000 per Collection Account (as such term is defined in the Lockbox Agreement), and amounts necessary to satisfy the minimum balance requirements of the Property Banks, if any) to the Lockbox Account pursuant to the Lockbox Agreement in accordance with existing practices, but no less than once weekly. Borrower acknowledges that it has sent Credit Card Issuer Letters (as defined in the Lockbox Agreement) to all Credit Card Issuers (as defined in the Lockbox Agreement). Prior to an Event of Default, Borrower shall have access to the Lockbox Account in accordance with the terms and conditions of the Lockbox Agreement. Borrower agrees and covenants not to (i) change the identity of the Property Banks, or (ii) alter or modify the terms and conditions governing the operation of the blocked accounts at the Property Banks in any material respect without Lender’s prior written consent, not to be unreasonably withheld, conditioned or delayed.

ARTICLE 4

ESCROW AND RESERVE REQUIREMENTS

     4.01. Creation and Maintenance of Escrows and Reserves.

          (a) Control of Reserve Accounts. On the Closing Date, each of the Reserve Accounts shall be established by Lender. Each Reserve Account required under this Loan Agreement shall be a custodial account established by Lender, and, at Lender’s option, funds deposited into a Reserve Account may be commingled with other money held by Lender. Each

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Reserve Account shall be under the sole dominion and control of Lender, and Borrower shall not have any right to withdraw funds from a Reserve Account. Unless required by the laws of the state which govern this Loan Agreement or otherwise expressly provided in this Loan Agreement, Borrower shall not be entitled to any earnings or interest on funds deposited in the Tax Escrow Account and the Insurance Premium Escrow Account. The Reserve Accounts, other than the Tax Escrow Account and the Insurance Premium Escrow Account, shall be interest-bearing accounts, provided, however, that interest paid or payable with respect to any Reserve Account held by or on behalf of Lender may not be based on the highest rate of interest payable by Lender on deposits and shall not be calculated based on any particular external interest rate or interest rate index, nor shall any such interest reflect the interest rate utilized by Lender to calculate interest payable on deposits held with respect to any particular loan or borrower or class of loans or borrowers, and Lender shall have no liability with respect to the amount of interest paid and/or loss of principal. All interest earned on the Reserve Accounts (other than the Tax Escrow Account and Insurance Premium Escrow Account) by Lender shall be credited to such accounts. Subject to the provisions of Section 4.07, upon the occurrence of an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in any or all of the Reserve Accounts to the payment of the Debt in any order as determined by Lender in its sole discretion. If and to the extent that, as of the Maturity Date, Borrower has previously deposited into any of the Reserve Accounts any sums that have (a) not been applied to the payment of the amounts with respect to which such Reserve Accounts were created or to the payment of subsequent monthly deposits required to be made into the applicable Reserve Accounts or (b) not repaid by Lender to Borrower, then such amounts shall be applied to the then-outstanding principal balance of the Loan, together with all accrued and unpaid interest and other charges then payable thereon.

          (b) Funds Dedicated to Particular Purpose. Funds held in a Reserve Account are not to be used to fund Reserve Items contemplated by a different Reserve Account, and Borrower may not use and Lender shall have no obligation to apply funds from one Reserve Account to pay for Reserve Items contemplated by another Reserve Account. For example, (i) funds held in the Capital Improvements/Deferred Maintenance Escrow Account shall not be used to pay for Replacements and (ii) funds held in the Replacement Reserve Account shall not be used to pay for Capital Improvements/Deferred Maintenance.

          (c) Release of Reserves Upon Payment of Debt. Upon payment in full of the Loan, Lender shall disburse to Borrower all unapplied funds, including any accrued and unpaid interest thereon, held by Lender in the Reserve Accounts pursuant to this Loan Agreement.

          (d) Release of Individual Reserve Account after Full Performance of Reserve Items. Lender shall disburse to Borrower all unapplied funds remaining in the Capital Improvements/Deferred Maintenance Escrow Account upon receipt of evidence reasonably satisfactory to Lender that (i) Borrower has completed, in the manner required by this Loan Agreement, all Reserve Items to be funded by such Reserve Account, and (ii) no Liens (other than Liens granted in favor of Lender) exist against the Property with respect to such Reserve Items. Lender shall not be obligated to make any such disbursement when an Event of Default exists, and Lender may deduct from any such disbursement all outstanding amounts then due and unpaid to Lender under the Loan Documents.

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          (e) No Obligation of Lender. Nothing in this Loan Agreement shall: (i) make Lender responsible for making or completing any Reserve Item; (ii) require Lender to advance, disburse or expend funds in addition to funds then on deposit in the related Reserve Account to make or complete any Reserve Item; or (iii) obligate Lender to demand from Borrower additional sums to make or complete any Reserve Item.

          (f) No Waiver of Default. No disbursements made from a Reserve Account at the time when a Borrower default or Event of Default has occurred and is then continuing shall be deemed a waiver or cure by Lender of that default or Event of Default, nor shall Lender’s rights and remedies by prejudiced in any manner thereby.

          (g) Insufficient Amounts in a Reserve Account. Notwithstanding that Lender has the right to require Borrower to pay any deficiency in a Reserve Account if Lender determines that amounts in a Reserve Account are insufficient, the insufficiency of funds in a Reserve Account, or Lender’s application of funds in a Reserve Account following an Event of Default other than for funding of the Reserve Items, shall not relieve Borrower from its obligation to perform in full each of its: (i) obligations and covenants under this Loan Agreement or (ii) agreements or covenants as tenant under any Ground Lease.

     4.02. Tax Escrow.

          (a) Deposits to the Tax Reserve. On the Closing Date, Borrower has deposited such amount as is noted on the Closing Statement for Taxes to the Tax Escrow Account which is the amount determined by Lender that is necessary to pay when due Borrower’s obligation for Taxes upon the due dates established by the appropriate tax or assessing authorities during the next ensuing twelve (12) months, taking into consideration the Monthly Tax Deposits to be collected from the first Payment Due Date to the due date for payment of Taxes. Thereafter, beginning on the first Payment Due Date and on each Payment Due Date thereafter, Borrower shall deliver to Lender the Monthly Tax Deposit.

          (b) Disbursement from Tax Escrow Account. Provided amounts in the Tax Reserve Account are sufficient to pay the Taxes then due and no Event of Default exists, Lender shall pay the Taxes as they become due on their respective due dates on behalf of Borrower by applying the funds held in the Tax Escrow Account to the payments of Taxes then due. In making any payment of Taxes, Lender may do so according to any bill, statement or estimate obtained from the appropriate public office with respect to Taxes without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof.

          (c) Surplus or Deficiency in Tax Escrow Account. If amounts on deposit in the Tax Escrow Account collected for an annual tax period exceed the Taxes actually paid during such tax period, Lender shall return the excess to Borrower or, in its discretion, credit the excess against the payments Borrower is to make to the Tax Escrow Account for the next tax period. If amounts on deposit in the Tax Escrow Account collected for an annual tax period are insufficient to pay the Taxes actually due during such tax period, Lender shall notify Borrower of the deficiency and, within ten (10) days after Borrower’s receipt of such notice, Borrower shall deliver to Lender such

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deficiency amount. If, however, Borrower receives notice of any such deficiency on a date that is within ten (10) days prior to the date that Taxes are due, Borrower will deposit the deficiency amount within three (3) business days after its receipt of such deficiency notice.

          (d) Changes in Amount of Taxes Due; Changes in the Monthly Tax Deposit. Borrower shall notify Lender immediately of any changes to the amounts, schedules and instructions for payment of any Taxes of which it has or obtains knowledge and authorizes Lender or its agent to obtain the bills for Taxes directly from the appropriate taxing authority. If the amount due for Taxes shall increase and Lender reasonably determines that amounts on deposit in the Tax Escrow Account will not be sufficient to pay Taxes due for an annual tax period, Lender shall notify Borrower of such determination and of the increase needed to the Monthly Tax Deposit. Commencing with the first Payment Due Date following such notice from Lender, Borrower shall make deposits at the increased amount of the Monthly Tax Deposit.

     4.03. Insurance Premium Escrow.

          (a) Deposits to Insurance Premium Escrow Account. On the Closing Date, Borrower has deposited such amount as is noted on the Closing Statement for Insurance Premiums to the Insurance Premium Escrow Account which is the amount determined by Lender that is necessary to pay when due Borrower’s obligation for twenty-five percent (25%) of the annual expected Insurance Premiums.

          (b) Payments of Insurance Premiums. Borrower shall pay the Insurance Premiums as they become due on their respective due dates and shall provide Lender with proof of such payment promptly following such payment.

          (c) Intentionally Omitted.

          (d) Changes in Insurance Premium Amounts. Borrower shall notify Lender immediately of any changes to the amounts, schedules and instructions for payment of any Insurance Premiums of which it has or obtains knowledge and authorizes Lender or its agent to obtain copies of the bills for the Insurance Premiums directly from the insurance provider or its agent. If the amount due for Insurance Premiums shall increase and Lender reasonably determines that amounts on deposit in the Insurance Premium Escrow Account will not be sufficient to pay for twenty-five percent (25%) of the annual expected Insurance Premiums, Lender shall notify Borrower of such determination and of the increase needed to the Insurance Premium Escrow Account. Promptly following such notice, but in no event more than thirty (30) days following such notice, Borrower shall make the required deposit. Following any failure of Borrower to provide evidence of the required monthly payment (following notice and a five (5) day cure period), or at any time following an Event of Default, Lender may require, in its sole discretion, change to the procedures for the escrow and payment of Insurance Premiums, to include monthly escrows for same. If Lender requires monthly escrows, Borrower shall deposit such amount as is determined by Lender that is necessary to pay when due Borrower’s obligation for Insurance Premiums during the next ensuing twelve (12) months, taking into consideration the Monthly Insurance Deposits to be collected from the next succeeding Payment Due Date to the due date for payment of such Insurance Premiums. Thereafter, beginning on the next

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succeeding Payment Due Date and on each Payment Due Date thereafter, Borrower shall deliver to Lender the Monthly Insurance Deposit.

     4.04. Capital Improvements/Deferred Maintenance Escrow Account.

          (a) Capital Improvements/Defined Maintenance Escrow Generally. Amounts in the Capital Improvements/Deferred Maintenance Escrow Account are to be used for the purpose of funding the Capital Improvements/Defined Maintenance, which Borrower covenants and agrees to perform in accordance with the terms of this Loan Agreement not later than twelve (12) months from the date hereof.

          (b) Deposit to the Capital Improvements/Deferred Maintenance Escrow Account. On the Closing Date, Borrower shall deposit $-0- with Lender as the reserve for completion of the Capital Improvements/Deferred Maintenance described on Exhibit C hereto (“Capital Improvements/Deferred Maintenance Deposit”).

          (c) Disbursements from the Capital Improvements/Deferred Maintenance Escrow Account. Lender shall make disbursements from the Capital Improvements/Deferred Maintenance Escrow Account upon Borrower’s performance, to Lender’s satisfaction, of all conditions to disbursement set forth in Article 5 of this Loan Agreement.

          (d) Reassessment of Required Deposit. If at any time Lender reasonably determines that the Capital Improvements Deposit will not be sufficient to pay the cost of the Capital Improvements/Deferred Maintenance, Lender may notify Borrower of such determination and of the amount estimated by Lender to make-up such deficiency. Within ten (10) days after receipt of such notice from Lender, Borrower shall deliver the deficiency amount to Lender, and Lender shall deposit in the Capital Improvements/Deferred Maintenance Escrow Account and hold and administer same in accordance with this Loan Agreement.

     4.05. Replacement Reserve Account.

          (a) Replacement Reserve Generally. Amounts in the Replacement Reserve Account are to be used for the purpose of funding the Replacements, which Replacements Borrower covenants and agrees to perform in accordance with the terms of this Loan Agreement, and within the time periods shown on Exhibit F attached hereto.

          (b) Deposits to the Replacement Reserve Account. On the Closing Date, Borrower shall deposit $109,250.00 with Lender as an initial deposit to the Replacement Reserve Account. Beginning on the first Payment Due Date and on each Payment Due Date thereafter, Borrower shall pay $9,104.17 (“Monthly Replacement Reserve Deposit”) to Lender as a deposit to the Replacement Reserve Account.

          Provided no Event of Default exists, the amounts on deposit in the Replacement Reserve Account shall not exceed $109,250.00 (the “Replacement Reserve Cap”). Notwithstanding the foregoing, the Replacement Reserve Cap may be increased not more than once annually upon mutual agreement of Borrower and Lender. If Lender and Borrower are unable, after using good faith efforts, to agree upon whether any increase in the Replacement Reserve Cap is necessary, and, if so, the amount of any such increase, Lender may, but not more

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frequently than once per year, engage an independent inspector at Borrower’s expense to inspect the Property and to determine whether an increase in the Replacement Reserve Cap is necessary to fund replacements of the nature described in Section 4.05(d)(i) or (ii) below. In such event, the determination of the independent inspector shall be final absent manifest error.

          Borrower’s Monthly Reserve Deposit shall be suspended at such time as and only for so long as, the amounts on deposit in the Replacement Reserve Account equals or exceeds the Replacement Reserve Cap. At such time as amounts on deposit in the Replacement Reserve Account are less than the Replacement Reserve Cap, Borrower’s obligation to make the Monthly Replacement Reserve Deposit shall be reinstated until such time as and only for so long as, the amount on deposit in the Replacement Reserve Account equals the Replacement Reserve Cap. Borrower may, at its option, provide a Letter of Credit which complies with the terms and conditions of Section 6.08 of this Loan Agreement, in the amount of the Replacement Reserve Cap, in fulfillment of its obligations under this Section 4.05, provided that, upon disbursement of funds under such Letter of Credit, Borrower provides Lender with a replacement Letter of Credit in the amount of the Replacement Reserve Cap.

          (c) Disbursements from the Replacement Reserve Account. Lender shall make disbursements from the Replacement Reserve Account upon Borrower’s performance, to Lender’s satisfaction, of all conditions to disbursement set forth in Article 5 hereof.

          (d) Reassessment of Required Monthly Deposits. The amount of the Monthly Replacement Reserve Deposit may be increased upon the mutual agreement of Lender and Borrower if an increase is necessary (i) to fund replacements not listed as part of the Replacements (and not intended to be covered by the Capital Improvements/Deferred Maintenance Escrow Account) which are advisable to keep the Property in good order, repair and marketable condition, or (ii) to fund the replacement of any major building systems or components (e.g., roof, HVAC system) not listed as part of the Replacements (and not intended to be covered by the Capital Improvements Escrow Account) which will reach the end of its useful life within two (2) years of the date of Lender’s inspection. If Lender and Borrower are unable, after using good faith efforts, to agree upon whether any increase in the Monthly Replacement Reserve Deposit is necessary, and, if so, the amount of any such increase, Lender may, but not more frequently than once per year, engage an independent inspector at Borrower’s expense to inspect the Property and to determine whether an increase in the Monthly Replacement Reserve Deposit is necessary to fund replacements of the nature described in clause (i) or clause (ii) above. In such event, the determination of the independent inspector shall be final absent manifest error. Promptly following such determination, whether by mutual agreement or following the determination by the independent inspector, but in no event more than thirty (30) days following such notice, Borrower shall commence paying the increased Monthly Replacement Reserve Deposit.

4.06.	Intentionally Omitted.
4.07.	Intentionally Omitted.
4.08.	Leasehold Payment Reserve Account.

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          (a) Intentionally Omitted.

          (b) Deposits into the Leasehold Payment Reserve Account. On the Closing Date, Borrower shall deposit $28,890.00 with Lender for the Leasehold Payment Reserve Account, which is the amount determined by Lender that is necessary to pay when due Borrower’s obligations under the Ground Lease for a minimum of one (1) month.

          (c) Payments of Leasehold Rents. Borrower shall pay all amounts due under the Ground Lease on their respective due dates, and each month during the term of the Loan shall promptly provide Lender with a certification which provides reasonable proof of all such payments during the month.

          (d) Deposit Reassessment. Lender may, from time to time, based on Lender’s review of the Ground Lease, reassess the amount determined by Lender that is necessary to pay when due Borrower’s obligations under the Ground Lease for a minimum of one (1) month and may increase such amount on not less than thirty (30) days written notice to Borrower if Lender determines that an increase is necessary to maintain a proper reserve to pay all amounts likely to arise with respect to the Ground Lease for a minimum of one (1) month. Following any failure of Borrower to provide evidence of the required monthly payment, or following an Event of Default, Lender may require, in its sole discretion, changes to the procedures for the escrow and payment of amounts due under the Ground Lease, to include monthly escrows for same.

ARTICLE 5

COMPLETION OF REPAIRS RELATED TO RESERVE ACCOUNTS; CONDITIONS TO RELEASE OF FUNDS

     5.01. Conditions Precedent to Disbursements from Certain Reserve Accounts. The following provisions apply to each request for disbursement from the Capital Improvements Escrow Account and the Replacement Reserve Account.

      (a) Disbursement only for Completed Repairs. Disbursements shall be limited to Reserve Items that are fully completed and paid for in full by Borrower, except to the extent permitted under Section 5.01(b) of this Loan Agreement. At no time shall Lender be obligated to pay amounts to Borrower in excess of the current balance in the applicable Reserve Account at the time of disbursement.

      (b) Partial Completion. Lender may agree to disburse funds for Reserve Items prior to completion thereof where (i) the contractor performing such work requires periodic payments pursuant to the terms of its written contract with Borrower and Lender has given its prior written approval to such contract, and (ii) the cost of the portion of the Reserve Item to be completed under such contract exceeds $10,000.

      (c) Disbursement Request; Maximum Frequency and Amount. Borrower shall submit to Lender a Disbursement Request together with such additional information as Lender may reasonably request in connection with the Disbursement Request, at least ten (10) business days prior to the date on which Borrower requests Lender to make a disbursement from

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a Reserve Account. Unless otherwise agreed to by Lender, Borrower may not submit, and Lender shall not be required to respond to, more than one (1) Disbursement Request for each Reserve Account during any calendar quarter. No Disbursement Request shall be made for less than $10,000 or the total cost of the Reserve Items, if less.

          (d) No Existing Event of Default. Lender may refuse to make any disbursement if an Event of Default exists as of the date on which Borrower submits the Disbursement Request or on the date the disbursement is actually to be made.

          (e) Responsible Officer Certificate. Lender must receive a certificate, signed by a Responsible Officer of Borrower (and, at Lender’s option, also signed by Borrower’s project architect or engineer if (i) Borrower has engaged an architect or engineer or (ii) the disbursement requested is for a work which is structural in nature), which certifies that:

(i)	All information stated in the Disbursement Request is true and correct in all material respects, each attachment to the Disbursement Request is correct and complete in all material respects, and if the attachment is a copy of the original, it is a true and an accurate reproduction of the original;
(ii)	Each of the Reserve Items to be funded in connection with the Disbursement Request was performed in a good and workmanlike manner and in accordance with all Requirements of Law and has been paid in full by Borrower;
(iii)	Subject to Section 5.03, each party that supplied materials, labor or services has been paid in full (for the portion for which disbursement is sought in the case of disbursements authorized in accordance with Section 5.01(b) hereof); and
(iv)	In the case of disbursements authorized in accordance with Section 5.01(b) hereof, the materials for which the request are made are on-site at the Property and properly secured or have been installed in the Property.

          (f) Inspection to Confirm Completion. Prior to making any disbursement Lender may require an inspection of the Property, performed at Borrower’s expense, to verify completion thereof.

          (g) Absence of Liens. Lender may require that Borrower provide Lender with any or all of the following: (i) a written lien waiver acceptable to Lender from each party to be paid in connection with the Disbursement Request; (ii) a search of title to the Property effective to the date of the disbursement which shows no Liens other than the Permitted Encumbrances; or (iii) an endorsement to the Title Insurance Policy which updates the effective date of such policy to the date of the disbursement and shows no Liens other than the Permitted Encumbrances.

          (h) Payment of Lender’s Expenses. Borrower shall pay all reasonable out-of-pocket expenses incurred by Lender in good faith in processing Borrower’s Disbursement

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Request, provided such costs are customary in the industry, including, without limitation, any inspection costs (whether performed by Lender or an independent inspector selected by Lender) and reasonable legal fees and expenses.

          (i) Other Items Lender Deems Necessary. Lender shall have received such other evidence as Lender reasonably requests in connection with its confirmation that each Reserve Item to be paid in connection with the Disbursement Request has been completed or performed in accordance with the terms of this Loan Agreement.

     5.02. Waiver of Conditions to Disbursement. No waiver given by Lender of any condition precedent to disbursement from a Reserve Account shall preclude Lender from requiring that such condition be satisfied prior to making any other disbursement from a Reserve Account.

     5.03. Direct Payments to Suppliers and Contractors. Lender, at its option, may make disbursements directly to the supplier or contractor to be paid in connection with the Disbursement Request. Borrower’s execution of this Loan Agreement constitutes an irrevocable direction and authorization for Lender to make requested payments directly to the supplier or contractor, notwithstanding any contrary instructions from Borrower or notice from Borrower of a dispute with such supplier or contractor. Each disbursement so made by Lender shall satisfy Lender’s obligation under this Loan Agreement.

     5.04. Performance of Reserve Items.

          (a) Performance of Reserve Items. Borrower agrees to commence each Reserve Item by its required commencement date stated on the applicable Exhibit to this Loan Agreement identifying such Reserve Item and to pursue completion diligently of each Reserve Item on or before its completion date stated on such Exhibit and, in the absence of a commencement date or completion date being specified, when necessary in order to keep the Property in good order and repair, in a good and marketable condition and as necessary to keep any portion thereof from deteriorating. Borrower shall complete each Reserve Item in a good and workmanlike manner, using only materials of the same or better quality than that being replaced. All Reserve Items shall be performed in accordance with, and upon completion shall comply with, all Requirements of Law (including without limitation obtaining and maintaining in effect all necessary permits and governmental approvals) and all applicable insurance requirements.

          (b) Contracts. Borrower shall promptly provide to Lender copies of all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors or other parties providing labor or materials in connection with the Reserve Items. Borrower shall not enter into any such contract or work order for $50,000 or more without Lender’s prior written approval, which approval shall not be unreasonably withheld, conditional or delayed.

          (c) Entry onto Property. In order to perform inspections or, following an Event of Default, to complete Reserve Items which Borrower has failed to perform, Borrower hereby grants Lender and its agents the right, from time to time, to enter onto the Property upon prior notice to Borrower (notice to be given not less than (2) business days prior to entry by

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Lender or its agents unless an Event of Default or an emergency exists, as determined by Lender in good faith).

          (d) Lender Remedy for Failure to Perform. In addition to Lender’s remedies following an Event of Default, Borrower acknowledges that Lender shall have the right following an Event of Default (but not the obligation) to complete or perform the Reserve Items for which amounts have been reserved under this Loan Agreement and for such purpose, Borrower hereby appoints Lender its attorney-in-fact with full power of substitution (and which shall be deemed to be coupled with an interest and irrevocable until the Loan is paid in full and the Security Instrument is discharged of record, with Borrower hereby ratifying all that its said attorney shall do by virtue thereof): (i) to complete or undertake such work in the name of Borrower; (ii) to proceed under existing contracts or to terminate existing contracts (even where a termination penalty may be incurred) and employ such contractors, subcontractors, watchman, agents, architects and inspectors as Lender determines necessary or desirable for completion of such work; (iii) to make any additions, changes and corrections to the scope of the work as Lender deems necessary or desirable for timely completion; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property or as may be necessary or desirable for completion of such work; (v) to execute all applications and certificates in the name of Borrower which may be required to obtain permits and approvals for such work or completion of such work; (vi) to prosecute and defend all actions or proceedings in connection with the repair or improvements to the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of Borrower’s obligations under this Loan Agreement. Amounts expended by Lender which exceed amounts held in the Reserve Accounts shall be added to the Loan Amount, shall be immediately due and payable, and shall bear interest at the Default Rate from the date of disbursement until paid in full.

ARTICLE 6

LOAN SECURITY AND RELATED OBLIGATIONS

     6.01. Security Instrument and Assignment of Rents and Leases. Payment of the Loan and performance of the Obligations shall be secured, inter alia, by the Security Instrument and the Assignment of Leases and Rents. Borrower shall execute at closing the Security Instrument and the Assignment of Leases and Rents and abide by its obligations thereunder.

     6.02. Assignment of Property Management Contract. Borrower and any Property Manager shall execute at closing the Assignment of the Property Management Contract and Subordination of Management Fees and to abide by their respective obligations thereunder.

     6.03. Assignment of Rate Cap Agreement. Borrower shall execute and deliver at closing the assignment and consent with respect to the Rate Cap as contemplated by Section 2.07 of this Loan Agreement and abide by its obligations thereunder.

     6.04. Assignment of Operating Agreements. As security for payment of the Loan and performance by Borrower of all Obligations, Borrower hereby transfers, sets over and assigns to

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Lender, to the extent assignable, all of Borrower’s right, title and interest in and to the Operating Agreements to Lender for security purposes.

     6.05. Pledge as Property; Grant of Security Interest. As security for payment of the Loan and performance by Borrower of all Obligations, Borrower hereby pledges, assigns, sets over and transfers to Lender, and grants to Lender a continuing security interest in and to: (a) each of the Reserve Accounts and each of the Collection Accounts, (b) all funds and monies from time to time deposited or held in each of the Reserve Accounts and each of the Collection Accounts, and (c) all interest accrued, if any, with respect to the Reserve Accounts and each of the Collection Accounts; provided that Lender shall make disbursements from each of the Reserve Accounts when, as and to the extent required by this Loan Agreement. The parties agree that each of the Reserve Accounts and each of the Collection Accounts is a “deposit account” within the meaning of Article 9 of the UCC and that this Loan Agreement also constitutes a “security agreement” within the meaning of Article 9 of the UCC. Borrower shall not, without Lender’s prior written consent, further pledge, assign, transfer or grant any security interest in any of the Reserve Accounts or in any of the Collection Accounts nor permit any Lien to attach thereto, except as may be created in favor of Lender in connection with the Loan.

     6.06. Environmental Indemnity Agreement. Borrower and each Guarantor will be required to execute at closing the Environmental Indemnity and to abide by their obligations thereunder.

     6.07. Guaranty of Borrower Sponsors. Each Guarantor will be required to execute at closing the Guaranty and to abide by its obligations thereunder.

     6.08. Letter of Credit. In lieu of making cash deposits into the Replacement Reserve Account, Borrower may, as security for its obligations under Section 4.05 of this Loan Agreement, deliver to Lender on the Closing Date an irrevocable letter of credit (payable on sight draft) in an amount equal to One Hundred Nine Thousand Two Hundred Fifty and no/100 dollars ($109,250.00) (“Letter of Credit”), naming Lender as the sole beneficiary thereof. The Letter of Credit shall: (a) be perpetual or for a term of one year with automatic renewals unless Lender receives written notice of non-renewal from the issuing financial institution at least sixty (60) days prior to the expiration of the then current Letter of Credit; (b) be issued by a domestic financial institution that is not an Affiliate of Borrower and that has a long-term senior debt rating by S&P of not less than “AA” or such other credit rating as is acceptable to Lender; (c) permit full or partial draws without condition or charge to the beneficiary of the Letter of Credit; (d) be freely transferable by the beneficiary of the Letter of Credit (and each successor as beneficiary) without restriction or charge and (e) otherwise be acceptable to Lender in all respects. If Borrower elects, in lieu of making deposits to the Replacement Reserve Account to deliver to Lender a Letter of Credit. Borrower shall cause the Letter of Credit to remain valid and effective at all times while the Loan is outstanding plus an additional thirty (30) days following the full payment of the Loan unless and to the extent the Letter of Credit is drawn upon by Lender and paid in the amount of such draw. The Letter of Credit shall be effective and delivered as of the Closing Date. Lender shall have the right to draw in full or in part upon the Letter of Credit, without notice to Borrower: (i) upon the occurrence of an Event of Default; (ii) if Lender has not received, at least thirty (30) days prior to the date on which the then outstanding Letter of Credit is scheduled to expire, a renewal or replacement Letter of Credit that

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satisfies all requirements of this Section 6.08 and Borrower has not deposited into the Replacement Reserve Account the amounts that Borrower is obligated to deposit pursuant to Section 4.05; (iii) upon a transfer of the Loan by Lender (within the meaning of Article 15 hereof) to another party (“Transferee”), Lender or is Transferee has not been delivered within ten (10) days of Lender’s notice of such transfer, for any reason, either an endorsement to any Letter of Credit by the issuing financial institution evidencing Transferee as the new beneficiary thereunder or a substitute Letter of Credit naming Transferee as beneficiary thereunder and Borrower has not deposited into the Replacement Reserve Account the amounts that Borrower is obligated to deposit pursuant to Section 4.05; (iv) if Borrower fails to cooperate in any manner deemed appropriate or advisable by Lender in order for Lender to obtain an endorsement or substitute Letter of Credit and Borrower has not deposited into the Replacement Reserve Account the amounts that Borrower is obligated to deposit pursuant to Section 4.05; (v) if Borrower fails to pay any transfer fee due in connection with transferring the Letter of Credit to the Transferee and Borrower has not deposited into the Replacement Reserve Account the amounts that Borrower is obligated to deposit pursuant to Section 4.05; or (vi) if Lender has not received within ten (10) Business Days of the earlier of (A) Lender’s notice to Borrower that the financial institution issuing the Letter of Credit ceases to meet the rating requirement set forth in this Section 6.08, or (B) Borrower finding out that the financial institution issuing the Letter of Credit ceases to meet the rating requirement set forth in this Section 6.08, a replacement Letter of Credit that satisfies all requirements of this Section 6.08 and Borrower has not deposited into the Replacement Reserve Account the amounts that Borrower is obligated to deposit pursuant to Section 4.05. Lender shall be entitled to charge Borrower a reasonable processing fee for administering and reviewing any renewal, replacement or release of the Letter of Credit which Borrower is required to provide pursuant to this Loan Agreement and Borrower has not deposited into the Replacement Reserve Account the amounts that Borrower is obligated to have on deposit pursuant to Section 4.05.

ARTICLE 7

SINGLE PURPOSE ENTITY REQUIREMENTS

     7.01. Commitment to be a Single Purpose Entity. Borrower represents, warrants and covenants to Lender as follows:

          (a) Borrower has been a Single Purpose Entity at all times since its formation and will continue to be a Single Purpose Entity at all times until the Loan has been paid in full. Borrower has at all times since its formation been in material compliance with the Borrower criteria set forth in Section 7.02(a) hereof.

          (b) Intentionally omitted.

          (c) As of the Closing Date, the Organizational Chart attached to this Loan Agreement as Exhibit D is true, complete and correct.

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          (d) All of the factual assumptions made in the substantive nonconsolidation opinion delivered by Borrower’s counsel to Lender, of even date herewith, are true and correct in all material respects.

          (e) The “single purpose entity” provisions included in the organizational documents of Borrower shall not, without Lender’s prior written consent, be amended, rescinded or otherwise revoked until the Loan has been paid in full.

          (f) Prior to the withdrawal or the disassociation of the Equity Owner from Borrower, Borrower shall immediately appoint a new general partner or managing member whose organizational documents are substantially similar to those of the original Equity Owner and, if an opinion letter pertaining to substantive nonconsolidation was required at closing, deliver a new substantive nonconsolidation opinion letter with respect to the new Equity Owner and its equity owners which is acceptable in all respects to Lender and to the Rating Agencies if a Securitization has occurred. (The requirements of this subsection shall not be construed to permit a Transfer in violation of Article 10.)

     7.02. Definition of Single Purpose Entity.

          (a) Borrower Criteria. With respect to Borrower, a “Single Purpose Entity” means a corporation, limited partnership or limited liability company which, at all times since its formation and thereafter:

(i)	has not engaged and shall not engage in any business or activity other than with respect to Borrower, the ownership, operation and maintenance of the Property, and activities incidental thereto;
(ii)	has not acquired or owned and shall not acquire or own any assets other than with respect to Borrower, the Property and such incidental Personal Property as may be necessary for the operation of the Property. Borrower may not acquire additional property (whether through purchase or lease of additional land) without the prior written consent of Lender, which consent may be conditioned upon receipt of a Rating Confirmation;
(iii)	if such entity is (A) a limited liability company (other than a single member limited liability company which satisfies the requirements of clause (iv) below, in which case satisfaction of the provisions of Section 7.02 is not required), has had and shall have at least one (1) member that satisfies the requirements of Section 7.02(b) below and such member is its managing member, or (B) a limited partnership, all of its general partners have satisfied and shall satisfy the requirements of Section 7.02(b) below;
(iv)	if such entity is a single member limited liability company, (A) such entity shall be formed and organized under Delaware law and otherwise comply with all other Rating Agency criteria for single member limited liability companies (including, without limitation,

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	the inclusion of a “springing member” and delivery of Delaware single member liability company opinions acceptable in all respects to Lender and to the Rating Agencies); and (B) such entity shall have at least one (1) Independent Director/Manager on its board of directors/managers; provided however if this Loan becomes part of a securitization and any Rating Agency’s criteria at such time require at least two (2) Independent Directors/Managers, Borrower shall appoint, or cause the appointment of, a second Independent Director/Manager;
(v)	if such entity is a corporation, has had and shall have at least one (1) Independent Director on its board of directors, provided, however, if this Loan becomes part of a Securitization and any Rating Agency’s criteria at such time require at least two (2) Independent Directors, Borrower shall appoint, or cause the appointment of, a second Independent Director;
(vi)	has preserved and shall preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its formation or organization;
(vii)	has not merged or consolidated and shall not merge or consolidate with any other Person;
(viii)	has not taken, and shall not take any action to dissolve, wind-up, terminate or liquidate in whole or in part; to sell, transfer or otherwise dispose of all or substantially all of its assets; to change its legal structure; transfer or permit the direct or indirect transfer of any partnership, membership or other Equity Interests, as applicable, other than Permitted Transfers; issue additional partnership, membership or other Equity Interests, as applicable; or seek to accomplish any of the foregoing;
(ix)	shall not, without the unanimous written consent of all Borrower’s partners, members, or shareholders, as applicable, and the written consent of one hundred percent (100%) of the members of the board of directors of the Equity Owner or board of managers in the case of a single member limited liability company, including without limitation the Independent Director(s)/Manager(s): (A) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute; (B) seek or consent to the appointment of a receiver, liquidator or any similar official; or (C) make an assignment for the benefit of creditors;

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(x)	shall not amend or restate its organizational documents if such change would adversely impact the requirements set forth in this Section 7.02;
(xi)	shall not own any subsidiary or make any investment in, any other Person;
(xii)	shall not commingle its assets with the assets of any other Person;
(xiii)	shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation), other than (A) the Loan and (B) customary unsecured trade payable incurred in the ordinary course of owning and operating the Property, or capital leases or installment financing contracts for shuttle buses, provided the same do not exceed, in the aggregate, at any time a maximum amount of four percent (4%) of the outstanding principal balance of the Loan, and are paid within ninety (90) days of the date incurred (other than the capital leases or installment financing contracts which shall be paid in accordance with their terms);
(xiv)	shall maintain its records, books of account, financial statements, accounting records and other entity documents separate and apart from those of any other Person and maintain its bank accounts separate and apart from those of any other Person who is not a Borrower. Borrower agrees, if requested by Lender, to establish separate bank accounts for all operating and collection accounts, all such accounts to be in accordance with the terms and conditions of the Lockbox Agreement;
(xv)	shall only enter into any contract or agreement with any general partner, member, shareholder, principal or Affiliate of Borrower or Guarantor, or any general partner, member, principal or Affiliate thereof, upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties;
(xvi)	shall not maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xvii)	shall not assume or guaranty the debts of any other Person, hold itself out to be responsible for the debts of another Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person;
(xviii)	shall not make any loans or advances to any other Person;

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(xix)	shall file its own tax returns as required under federal and state law;
(xx)	shall hold itself out to the public as a legal entity separate and distinct from any other Person and conduct its business solely in its own name and shall correct any known misunderstanding regarding its separate identity;
(xxi)	shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xxii)	shall allocate shared expenses (including, without limitation, shared office space) and to use separate stationery, invoices and checks;
(xxiii)	shall pay (or cause the Property Manager, if any, to pay on behalf of Borrower from Borrower’s funds) its own liabilities (including, without limitation, salaries of its own employees) from its own funds; and
(xxiv)	shall not acquire obligations or securities of its partners, members or shareholders, as applicable.

          (b) Equity Owner Criteria. With respect to Equity Owner, a “Single Purpose Entity” means a corporation or a Delaware single member limited liability company which, at all times since its formation and thereafter complies in its own right with each of the requirements contained in Section 7.02(a)(i) – (xxiv), except that:

(i)	with respect to Section 7.02(a)(i) the Equity Owner shall not engage in any business or activity other than being the sole managing member or general partner, as the case may be, of the Borrower and owning its Equity Interest in Borrower;
(ii)	with respect to Section 7.02(a)(ii), the Equity Owner has not and shall not acquire or own any assets other than its Equity Interest in Borrower; and
(iii)	with respect to Section 7.02(a)(xiii) the Equity Owner has not and shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).

          (c) Equity Owner Criteria. So long as Borrower shall remain a single member limited liability company formed and organized under Delaware law and otherwise complies with all other Rating Agency criteria for single member limited liability companies (including, without limitation, the inclusion of a “springing member”) and delivery of Delaware single member liability company opinions acceptable in all respects to Lender and to the Rating

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Agencies and Independent Director or equivalent, Equity Owner, its single member, need not comply with the provisions of Sections 7.02(a) or (b).

ARTICLE 8

REPRESENTATIONS AND WARRANTIES

Borrower represents and warrants to Lender that, as of the Closing Date:

     8.01. Organization; Legal Status. Borrower and each Equity Owner are duly organized, validly existing and in good standing under the laws of its state of formation and Borrower; (a) is duly qualified to transact business and is in good standing in each state where the Property is located; and (b) other than as set forth on Schedule 8.01 attached hereto, has all necessary approvals, governmental and otherwise, and full power and authority to own, operate and lease the Property and otherwise carry on its business as now conducted and proposed to be conducted. Borrower’s correct legal name is set forth on the first page of this Loan Agreement. Borrower is a “registered organization” within the meaning of the UCC and Borrower’s organization identification number issued by its state of organization is correctly stated on the signature page to this Loan Agreement.

     8.02. Power; Authorization; Enforceable Obligations. Borrower has full power, authority and legal right to execute, deliver and perform its obligations under the Loan Documents. Borrower has taken all necessary action to authorize the borrowing of the Loan on the terms and conditions of this Loan Agreement and the other Loan Documents, and Borrower has taken all necessary action to authorize the execution and delivery of its performance under the Loan Documents. The officer or representative of Borrower signing the Loan Documents has been duly authorized and empowered to do so. The Loan Documents constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their terms.

     8.03. No Legal Conflicts. The borrowing of the Loan and Borrower’s execution, delivery and performance of its obligations under the Loan Documents will not: (a) violate, conflict with or result in a material default (following notice and/or expiration of the related grace/cure period without cure or both, as applicable) under any agreement or other instrument to which Borrower is a party or by which the Property may be bound or affected, or any Requirements of Law (including, without limitation, usury laws); (b) result in the creation or imposition of any Lien whatsoever upon any of its assets, except the Liens created by the Loan Documents; or (c) require any authorization or consent from, or any filing with, any Governmental Authority (except for the recordation of the Security Instrument in the appropriate land records in each state where the Property is located and UCC filings relating to the security interest created hereby and by the Security Instrument which are necessary to perfect Lender’s security interest in the Property).

     8.04. No Litigation. Except as set forth on Schedule 8.04 attached hereto, no action, suit, or proceeding or investigation, judicial, administrative or otherwise (including, without limitation, any reorganization, bankruptcy, insolvency or similar proceeding) currently is

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pending or, to the best of Borrower’s knowledge, threatened or contemplated against or affecting Borrower, Equity Owner, any Guarantor or the Property that has not been disclosed by Borrower in writing to Lender and which, if adversely determined, could reasonably be expected to have a Material Adverse Effect.

     8.05. Business Purpose of Loan. Borrower will use the proceeds of the Loan solely for the purpose of carrying on a business or commercial enterprise and not for personal, family or household purposes.

     8.06. Warranty of Title. Borrower has good, marketable and insurable fee simple or leasehold title of record to the Property, as applicable, free and clear of all Liens whatsoever except for the Permitted Encumbrances. The Security Instrument and Assignment of Leases and Rents, when properly recorded in the appropriate recording office, together with the UCC financing statements required to be filed in connection therewith, will create (a) a valid, first priority, perfected lien on the Property subject only to Permitted Encumbrances; and (b) perfected security interests in and to, and perfected assignments as collateral of, all Personal Property (including, without limitation, the Leases), all in accordance with the terms thereof, in each case subject only to any Permitted Encumbrances. None of the Permitted Encumbrances, individually or in the aggregate: (a) materially interferes with the benefits of the security intended to be provided by the Security Instrument, (b) materially and adversely affects the value of the Property, or (c) materially and adversely impair the use and operations of the Property. Borrower owns or has rights in all collateral given as security for the Loan, free and clear of any and all Liens except for Permitted Encumbrances and the Liens created in favor of Lender in connection with the Loan. Borrower shall forever warrant, defend and preserve the title and the validity and priority of the Liens created in favor of Lender in connection with the Loan and shall forever warrant and defend the same to Lender against the claims of all persons except the holders of Permitted Encumbrances.

     8.07. Condition of the Property. The Improvements are fit for the purpose for which they are used, are structurally sound, in good repair and free of material defects in materials and workmanship. All major building systems located within the Improvements (including, without limitation, the heating and air conditioning systems, the electrical systems, plumbing systems, and all liquid and solid waste disposal, septic and sewer systems), if any, are in good working order and condition and in compliance with all Requirements of Law. The Property is free from damage caused by fire or other casualty.

     8.08. No Condemnation. Except as set forth on Schedule 8.08 attached hereto, no Condemnation proceeding has been commenced or, to the best of Borrower’s knowledge, is contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

     8.09. Requirements of Law. Except as set forth on Schedule 8.09 attached hereto, the Property and its present and contemplated use and occupancy are in compliance in all material respects with all Requirements of Law.

     8.10. Operating Permits. To the best of Borrower’s knowledge upon due inquiry, except as set forth on Schedule 8.10 attached hereto, Borrower has obtained all licenses, permits,

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registrations, certificates and other approvals, governmental and otherwise (including, without limitation, zoning, building code, land use and environmental), necessary for the use, occupancy and operation of the Property and the conduct of its business thereat, all of which are in full force and effect as of the date hereof. No event or condition currently exists which could result in the revocation, suspension, or forfeiture thereof. If Borrower determines that any additional Operating Permits are required for the full use, occupancy and/or operation of the Property and the conduct of its business thereat (collectively, the “Operating Permits”), Borrower shall obtain such Operating Permits within thirty (30) days of the date hereof. If Borrower determines that any of its activities on the Property require any additional Operating Permits, Borrower shall immediately terminate such activities until it has obtained the necessary Operating Permits.

     8.11. Separate Tax Lot. Except as set forth on Schedule 8.11 attached hereto, the Property is assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of the Property.

     8.12. Flood Zone. Except as otherwise disclosed on the surveys of the Property provided to Lender in connection with the Loan, no portion of the Improvements is located in an area identified by the Federal Emergency Management Agency or any successor thereto, as an area having special flood hazards.

     8.13. Adequate Utilities. The Property is adequately served by all utilities required for the current or contemplated use thereof. All water and sewer systems are provided to the Property by public utilities, and the Property has accepted or is equipped to accept such utility services.

     8.14. Public Access. All public roads and streets necessary for access to the Property for the current or contemplated use thereof have been completed, are serviceable and all-weather, and are physically and legally open for use by the public.

     8.15. Boundaries. Except as set forth on Schedule 8.15 attached hereto, all of the Improvements lie wholly within the boundaries and building restriction lines of the Property, and no easements or other encumbrances affecting the Property (including, without limitation, the Permitted Encumbrances) encroach upon any of the Improvements. No improvements on adjacent properties encroach upon the Property.

     8.16. Mechanic Liens. No mechanics’, materialmens’ or similar liens or claims have been, or may be, filed for work, labor or materials affecting the Property which are or may be Liens prior, equal or subordinate to the Security Instrument.

     8.17. Assessments. No unpaid assessments for public improvements or assessments otherwise affecting the Property currently exist or, to the best of Borrower’s knowledge, are pending, nor are improvements contemplated to the Property that may result in any such assessments.

     8.18. Insurance. Borrower has obtained and delivered to Lender all insurance policies Lender has required pursuant to Section 9.03 of this Loan Agreement, reflecting the insurance coverages, amounts and other requirements set forth in this Loan Agreement. No claims have

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been made under any of such insurance policies, and no party, including Borrower, has done, by act or omission, anything which would impair the coverage of any of such insurance policies.

     8.19. Leases. With respect to the Leases: (a) except as disclosed on Schedule 8.19(a), the Property is not subject to any Leases; (b) Borrower has delivered to Lender complete and accurate copies of all Leases and no verbal or written agreements exist which terminate, modify or supplement the Leases, except as otherwise disclosed to Lender in writing and acknowledged by Lender; (c) Borrower is the sole owner of the entire lessor’s interest in the Leases and has not assigned, pledged or otherwise transferred the Rents reserved in the Leases (except to Lender); (d) except as disclosed on Schedule 8.19(d), all of the Leases are bona fide, arms-length agreements with tenants unrelated to Borrower; (e) none of the Rents have been collected for more than one (1) month in advance (and for such purpose, a security deposit shall not be deemed rent collected in advance); (f) all security deposits, if any, have been collected and are being held by Borrower in the full amount; (g) all work to be performed by Borrower, if any, under each Lease has been performed as required and has been accepted unconditionally by the applicable tenant; (h) no offsets or defenses exist in favor of any tenant under any Lease to the payment of any portion of the Rents and Borrower has no monetary obligation to any tenant under any Lease; (i) Borrower has not received notice from any tenant under any Lease challenging the validity or enforceability of the applicable Lease; (j) all payments due from tenants under the Leases are current; (k) no tenant under any Lease is in default thereunder, or is a debtor in any bankruptcy, reorganization, insolvency or similar proceeding, or has demonstrated a history of payment problems which suggest financial difficulty; (l) no Lease contains an option to purchase, right of first refusal to purchase, or any other similar provision; and (m) no brokerage commissions, finders fees or similar payment obligations are due and unpaid by Borrower or any Affiliate of Borrower regarding any Lease.

     8.20. Management Agreement. No change in the employment agreements with the Key Management Personnel has occurred since the date of the most recent information submitted to Lender with respect thereto, other than any change that has been disclosed in writing to Lender.

     8.21. Financial Condition. Borrower currently is solvent and has received reasonably equivalent value for its granting of the Liens in favor of Lender in connection with the Loan. No change has occurred in the financial condition of Borrower, Equity Owner, Guarantor, or any of their respective constituent equity owners, general partners or managing members which would have a Material Adverse Effect, since the date of the most recent financial statements submitted to Lender with respect to each such party, other than has been disclosed in writing to Lender and acknowledged by Lender in writing.

     8.22. Taxes. Borrower and Equity Owner have filed all federal, state, county, municipal, and city income tax returns required to have been filed by them and have paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them. Borrower does not know of any basis for any additional assessment in respect of any such taxes and related liabilities for prior years.

     8.23. No Foreign Person. Borrower is not a “foreign person” within the meaning of §1445(f)(3) of the Tax Code.

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     8.24. Federal Regulations. Borrower is not engaged nor will it engage, principally, or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U or Regulation G.

     8.25. Investment Company Act; Other Regulations. Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940 and the regulations issued thereunder, each as amended. Borrower is not subject to regulations under any federal or state statute or regulation which limits its ability to incur indebtedness.

     8.26. ERISA. (a) Borrower is not, and does not maintain, contribute to, or have any obligation to contribute to, an “employee benefit plan,” as defined in §3(3) of ERISA, subject to Title I of ERISA, a “plan” as defined in an subject to Section 4975 of the Code, and subject thereto, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (b) none of the assets of Borrower constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. §2510.3; and (c) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans.

     8.27. No Illegal Activity as Source of Funds. No portion of the Property has been or will be purchased, improved, equipped or furnished with proceeds of any illegal activity.

     8.28. Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws. Borrower, Equity Owner, Guarantor, the Property Manager, and to the best of Borrower’s knowledge, after having made reasonable inquiry (a) each Person owning an interest in Borrower, Equity Owner, a Guarantor, or the Property Manager (if the Property Manager is an Affiliate of Borrower) and (b) any tenant whose rent exceeds 20% of the total revenue generated by relevant Parking Lot Operation: (i) is not currently identified on OFAC List, and (ii) is not a Person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States. As of the Closing Date, Borrower has implemented procedures, and will consistently apply those procedures throughout the term of the Loan, to ensure the foregoing representations and warranties remain true and correct during the term of the Loan.

     8.29. Brokers and Financial Advisors. Borrower has not dealt with any financial advisor, broker, underwriter, placement agent or finder in connection with the transaction contemplated by this Loan Agreement who may be owed a commission or other compensation which Borrower will not have paid in full as of the Closing Date, including but not limited to, a fee to Macquarie Securities (USA), Inc. for financial advisory services rendered in connection with the contemplated transaction. To the extent any fee due under this Section 8.29 is not paid at Closing, Borrower shall deposit a like sum with Lender at Closing to be held in escrow pending the payment of such obligation.

     8.30. Equity Contribution. As of the Closing Date, Borrower’s cash investment in the Property is not less than $16,250,000.00.

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     8.31. Complete Disclosure; No Change in Facts or Circumstances. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially inaccurate, incomplete or misleading. All information provided or supplied in connection with the application for Loan, or in satisfaction of the terms thereof, remains true, complete and correct in all material respects, and no adverse change in any condition or fact has occurred that would make any of such information materially inaccurate, incomplete or misleading.

     8.32. Ground Leases.

          (a) Recording. The Ground Lease or a memorandum thereof has been duly recorded, the Ground Lease permits the interest of the lessee thereunder to be encumbered by the Security Instrument, and there has not been a material change in the terms of the Ground Lease since its recordation.

          (b) No Senior Liens. Except for the Permitted Encumbrances, Borrower’s interest in the Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the Security Instrument, other than the related ground lessor’s related fee interest.

          (c) Ground Lease Assignable. Borrower’s interest in the Ground Lease is assignable to Lender and all required notices to, and/or consents from, the ground lessor thereunder have been obtained with respect to any such assignment to Lender.

          (d) Default. To the best of Borrower’s knowledge upon due inquiry, the Ground Lease is in full force and effect and no default has occurred under the Ground Lease and there is no existing condition which, but for the passage of time or the giving of notice, would result in a default under the terms of the Ground Lease.

          (e) Notice. The ground lessor under the Ground Lease has agreed in writing to give notice to Lender of any default by Borrower and that notice of termination given under the Ground Lease is not effective against Lender unless a copy of the notice has been delivered to Lender in the manner described in the Ground Lease.

          (f) Cure. Lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Lease) to cure any default under the Ground Lease, which is curable after the receipt of notice of the default before the ground lessor thereunder may terminate the Ground Lease.

          (g) Term. The Ground Lease has a term, inclusive of renewal options, which extends not less than twenty (20) years beyond the Maturity Date.

          (h) New Lease. The ground lessor under the Ground Lease has agreed in writing to enter into a new lease with Lender upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding, provided that Lender cures any defaults which are susceptible to being cured.

          (i) Subleasing. The Ground Lease does not impose commercially unreasonable restrictions on subletting, but does require the ground lessor’s prior consent.

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     8.33. Survival. The representations and warranties contained in this Article 8 survive for so long as the Loan remains payable and any Obligation remains to be performed.

     8.34. Philadelphia Joint Operation. Lender and Borrower acknowledge that an affiliate of Borrower, Parking Company of America Airports, LLC (“PCAA”) owns and operates a parking facility (“PCAA Property”) adjacent to the Property owned by Borrower and located in Philadelphia, Pennsylvania (“SunPark Property”). To minimize administrative costs and expenses, Borrower and PCAA have agreed to operate such properties as a single operating unit. Accordingly, Cash Flow Available for Debt Service calculated for the combined PCAA Property and SunPark Property shall be allocated 85% to Borrower and 15% to PCAA.

     Under certain circumstances, Borrower has the right to exercise an option to lease from PCAA, and PCAA has an obligation to lease to Borrower, one hundred fifty (150) parking spaces located on the PCAA Property. In the event Borrower exercises this option, if (i) PCAA is able to replace the loss of such spaces by acquiring approximately 1 acre of adjoining land (by acquisition or by lease) from a third party, the ratio of Cash Flow Available for Debt Service shall remain unchanged, or (ii) PCAA is unable to secure additional replacement land from adjoining third parties, the ratio of Cash Flow Available for Debt Service shall become 95% to Borrower and 5% to PCAA.

ARTICLE 9

BORROWER COVENANTS

     9.01. Payment of Debt and Performance of Obligations. Borrower shall fully and punctually pay the Loan and perform the Obligations when and as required by the Loan Documents. Borrower may not prepay the Loan except in strict accordance with this Loan Agreement.

     9.02. Payment of Taxes and Other Lienable Charges.

          (a) Payment Obligation. Except to the extent sums sufficient to pay Taxes or Other Charges have been deposited with Lender in accordance with this Loan Agreement, Borrower shall promptly and fully pay by their due date all Taxes and Other Charges now or hereafter assessed or charged against the Property as they become due and payable. Subject to Section 9.02(b) below, Borrower shall promptly cause to be paid and discharged any Lien which may be or become a Lien against the Property (including, without limitation, mechanics’ or materialmens’ liens). Except to the extent sums sufficient to pay Taxes or Other Charges have been deposited with Lender in accordance with this Loan Agreement, Borrower shall furnish to Lender, upon request, evidence reasonably satisfactory to Lender that all Taxes and Other Charges have been paid and are not delinquent. Provided (i) the Tax Escrow Account has sufficient funds to pay Taxes and Other Charges, and (ii) no Event of Default has occurred and is then continuing, Lender shall pay such Taxes and Other Charges on Borrower’s behalf from funds in the Tax Escrow Account.

          (b) Right to Contest. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceedings, promptly initiated and conducted in

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good faith with due diligence, the amount or validity or application in whole or in part of any of the Taxes or Other Charges, provided that: (i) no Event of Default exists; (ii) such proceedings suspend the collection of such Taxes or Other Charges and the Property will not be in danger of being sold for such unpaid Taxes or Other Charges, or Borrower has paid all of such Taxes or Other Charges under protest; (iii) such proceeding is permitted under and is conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and does not constitute a default thereunder; (iv) if Borrower has not paid the disputed amounts in full under protest, Borrower shall deposit with Lender cash (or other security as may be approved, in writing, by Lender) in an amount which Lender deems (together with all funds then existing in the Tax Escrow Account) sufficient to insure the payment of any such Taxes or Other Charges together with interest and penalties thereon, if any, provided that after a Securitization, one hundred twenty-five percent (125%) of the contested amount (plus anticipated penalty and interest) shall be deposited with Lender (after crediting all amounts then existing in the Tax Escrow Account which are not otherwise reserved for other known Taxes or Other Charges due or to become due); (v) Borrower furnishes to Lender all other items reasonably requested by Lender; and (vi) upon a final determination thereof, Borrower, subject to the provisions of the following sentence, promptly pays the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith. Lender shall pay over any security held by Lender pursuant to this Section to the claimant entitled thereto at any time when, in Lender’s reasonable judgment, the entitlement of such claimant is established, and, to the extent the security posted by Borrower with Lender is insufficient to pay the full amount due (including, without limitation, any penalties or interest thereon), Borrower shall be liable for the deficiency. If Lender pays the deficiency (which Lender shall not be obligated to do), the amount paid by Lender shall be added to principal, shall bear interest at the Default Rate until paid in full and payment of such amounts shall be secured by the Security Instrument and other collateral given to secure the Loan.

     9.03. Insurance.

          (a) Insurance Required During the Loan Term. Borrower, at Borrower’s expense, shall obtain and maintain during the term of the Loan such insurance coverage (including, without limitation, type, minimum coverage amount, maximum deductible and acceptable exclusions) for Borrower and the Property as Lender deems reasonably necessary considering, among other things, the location and occupancy of the Property and all uses of the Property. Lender reserves the right to periodically review the insurance coverage Lender has required (types, minimum coverage amounts and maximum deductibles) and to increase or otherwise change the required coverage should Lender deem an increase or change to be reasonably necessary under then existing circumstances. Without limiting Lender’s rights hereunder in any respect, it shall be deemed reasonable for Lender to require no less coverage than the coverage in place on the Closing Date. Subject to the foregoing, Lender shall require the following insurance coverage to be effective during the term of the Loan, coverage amounts and deductibles to be acceptable to Lender:

(i) Property Insurance. Casualty insurance must be maintained for the Improvements and all Personal Property insuring against any peril now or hereafter included within the classification “all risks of physical loss” and in an amount at all times equal to the full

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	replacement cost (as reasonably determined and adjusted from time to time by Lender) of the Improvements and Personal Property (without taking into account any depreciation and exclusive of excavations, footings and foundations, landscaping and paving), without any exclusions for windstorms. In all cases where (A) the outstanding principal balance on the Note exceeds $5,000,000.00, or (B) any part of the Improvements constitutes a legal non-conforming use under the Requirements of Law, such insurance must include “Ordinance of Law Coverage,” with “Time Element,” “Loss to the Undamaged Portion of the Building,” “Demolition Cost” and “Increased Cost of Construction” endorsements, in the amount of coverage requested by Lender. The policy must name Lender as an insured mortgagee under a standard mortgagee clause. The deductible shall not exceed $10,000.00 for each Individual Property.
(ii)	Insurance against Acts of Terrorism. The insurance coverage provided under Section 9.03(a) in effect as of the Closing Date and during the Loan Term must also insure against loss or damage resulting from acts of terrorism or comparable coverage acceptable to Lender in its discretion. The deductible shall not exceed $10,000.00 for each Individual Property.
(iii)	Boiler and Machinery Insurance. Broad form boiler and machinery insurance (without exclusion for explosion) and systems breakdown coverage must be maintained, covering all steam boilers, pipes, turbines, engines or other pressure vessels, electrical machinery, HVAC equipment, refrigeration equipment and other similar mechanical equipment located in, on or about the Property in such amount per accident equal to the full replacement cost thereof (as reasonably determined and adjusted from time to time by Lender) and also providing coverage against loss of occupancy or use arising from any breakdown thereof. The policy must name Lender as an insured under a standard joint loss clause and provide that all proceeds are to be paid to Lender.
(iv)	Flood Insurance. Flood insurance must be maintained if any portion of the Improvements is located in an area identified by the Federal Emergency Management Agency or any successor thereto as a 100-year flood zone or special hazard area. The required coverage amount shall be equal to the full replacement cost of the Improvements and Personal Property (without taking into account any depreciation and exclusive of excavations, footings and foundations, landscaping and paving). Such coverage may need to be purchased through excess carriers if the required coverage exceeds the maximum insurance available for the Property under the then-current guidelines published by the Federal Emergency

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	Management Agency or any successor thereto. The policy must name Lender as an insured mortgagee under a standard mortgagee clause.
(v)	Business Interruption. Business interruption insurance must be maintained in an amount sufficient to provide the lost Operating Income for the Property for a period of not less than one (1) year from the date of Casualty, with a six (6) month extended period of indemnity (but a minimum of eighteen (18) months with a six (6) month extended period of indemnity at all times during which the outstanding principal balance of the Note is greater than $25,000,000 and a minimum of eighteen (18) months with a twelve (12) month extended period of indemnity at all times during which the outstanding principal balance of the Note is greater than $50,000,000). The policy must name Lender as a loss payee and provide that all proceeds are to be paid to Lender.
(vi)	Liability Insurance. Commercial general liability insurance coverage must be maintained, covering bodily injury or death and property damage, including all legal liability to the extent insurable and all court costs, legal fees and expenses, arising out of, or connected with, the possession, use, leasing, operation, maintenance or condition of the Property in such amounts generally required by institutional lenders for properties comparable to the Property but in no event for a combined single limit of less than $2,000,000 aggregate and $1,000,000 per occurrence. The required coverage must provide for claims to be made on an occurrence basis. The policy must name Lender as an additional insured. The insurance coverage required under this subsection (vi) may be satisfied by a layering of Commercial General Liability, Umbrella and Excess Liability Policies, but in no event will the Commercial General Liability policy be written for an amount less than $1,000,000 per occurrence and $2,000,000 aggregate for bodily injury and property damage liability, Lender may require umbrella coverage which will be evaluated on a case-by-case basis, but in no event less than $25,000,000.
(vii)	Workers’ Compensation Insurance. Workers’ compensation insurance must be maintained with respect to all employees employed at the Property, in compliance with the laws of the state in which the Property is located.
(viii)	Earthquake Insurance. If the Property is located in a high earthquake hazard area, earthquake insurance must be maintained in an amount equal to the full replacement value of the Property and for loss of revenues and be in form, amount and with

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	deductibles satisfactory to Lender but in no event greater than 10% of the Allocated Loan Amount.
(ix)	Garage Keeper’s Insurance. Garage keeper’s insurance in form and substance acceptable to Lender must be maintained in the amount of $2,500,000 for each Individual Property and must name Lender as an insured mortgagee under a standard mortgage clause.
(x)	Automobile Insurance. Comprehensive automobile liability insurance must be maintained for all owned and non-owned vehicles used in connection with the operation, maintenance, or management of the Property and in an amount of not less than $1,000,000 per occurrence.
(xi)	Other Coverage. Without limiting Lender’s rights under this Section 9.03(a), Lender may also require Borrower to maintain builder’s risk insurance during any period of construction, renovation or alteration of the Improvements, “dram shop” or similar coverage if alcoholic beverages are sold at the Property, fidelity bond coverage for employees handling Rents and other income from the Property, environmental insurance, sinkhole coverage and other insurance with respect to the Property or on any replacements or substitutions thereof or additions thereto against other insurable hazards or casualties which at the time are commonly insured against in the case of property similarly situated, due regard being given to the height and type of buildings, their construction, location, use and occupancy.

          (b) Qualified Insurers; Lender’s Consent. All insurance must be issued under valid and enforceable policies of insurance acceptable to Lender and issued by one or more domestic primary insurers authorized to issue insurance in the state in which the Property is located. Each insurer must have a minimum investment grade rating of “A” or better (but a minimum rating of “AA” at all times during which the outstanding principal balance of the Note is $25,000,000 or more unless Borrower obtains an acceptable “cut through” endorsement from a properly-rated reinsurer) from S & P or equivalent ratings from one or more Rating Agencies acceptable to Lender. Lender’s approval of insurance coverage at any time is not a representation or warranty concerning the sufficiency of any coverage or the solvency of any insurer, and Lender shall not be responsible for, nor incur any liability for, the insolvency of the insurer or other failure of the insurer to perform.

          (c) Policy Requirements. All policies must be for a term of not less than a year and name Lender as a beneficiary of such coverage as provided in this Section 9.03 or otherwise identified by Lender. Each policy must also contain: (i) an endorsement or provision that permits recovery by Lender notwithstanding the negligent or willful acts or omission of Borrower; (ii) a waiver of subrogation endorsement as to Lender to the extent available at commercially reasonable rates; (iii) a provision that prohibits cancellation or termination before the expiration date, denial of coverage upon renewal, or material modification without at least

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thirty (30) days prior written notice to Lender in each instance; and (iv) effective waivers by the insurer of all claims for Insurance Premiums against Lender. If the required insurance coverage is to be provided under a blanket policy covering the Property and other properties and assets not part of the Property, such blanket policy must specify the portion of the total coverage that is allocated to the Property and any sublimit in such blanket policy which is applicable to the Property and shall otherwise comply in all respects with the requirements of this Section 9.03.

          (d) Evidence of Insurance.

Borrower must deliver to Lender on or before the Closing Date either (i) the original of each insurance policy required hereunder, (ii) a copy of each original policy certified by the insurance agent to be a true, correct and complete copy of the original; (iii) the insurance binder (Acord Form 25S provided by the insurance carrier) (as well as satisfactory proof of payment); (iv) a certificate of insurance (Acord Form 28 provided by the insurance agent or, where form Acord Form 28 is not available, a certificate of insurance confirms the same rights as are confirmed by form Acord Form 28), (v) an original letter from the insurance carrier on the primary layer, signed by an officer of such carrier, attaching the form of insurance policy pursuant to which coverage will be provided (and, if applicable, an original letter from each insurance carrier on the excess layers, signed by an officer of each such carrier, agreeing that it is bound to the form of insurance policy delivered by the primary carrier (i.e., agreeing to “follow form” to the primary carrier); and (A) each such letter must set forth the date by which the policy will be delivered to the Lender, which must not be more than sixty (60) days following the Closing Date and (B) include as attachments all mortgagee/loss payee/additional insured endorsements. Evidence of the required coverage for the first year of the Loan (as well as satisfactory proof of payment ) must be delivered to Lender on or before the Closing Date and thereafter not less than thirty (30) days prior to the expiration date of each policy.

     (e) Lender’s Right to Obtain Insurance for Borrower. If Borrower fails to deliver to Lender the evidence of insurance coverage required by this Loan Agreement and does not cure such deficiency within ten (10) days after Lender’s notice of nondelivery, an Event of Default shall be deemed to have occurred (without further cure period or notice) and Lender may procure such insurance at Borrower’s expense, without prejudice to Lender’s rights upon an Event of Default. All amounts advanced by Lender to procure the required insurance shall be added to principal, secured by the Security Instrument and bear interest at the Default Rate. Lender shall not be responsible for, nor incur any liability for the insolvency of the insurer or other failure of the insurer to perform, even though Lender has caused the insurance to be placed with the insurer after Borrower’s failure to furnish such insurance.

     (f) Additional Insurance. Borrower shall not obtain insurance for the Property in addition to that required by Lender without Lender’s prior written consent, which consent will not be unreasonably withheld provided that (i) Lender is named insured on such insurance, (ii) Lender receives evidence of such insurance as required by subsection (d) above, and (iii) such insurance will not breach any requirements set forth in this Loan Agreement.

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     9.04. Obligations upon Condemnation or Casualty. If the Property, or any portion thereof, shall be damaged or destroyed by a Casualty or become subject to any Condemnation, the following shall apply:

          (a) Generally. Borrower shall promptly notify Lender, in writing, of any actual or threatened Condemnation or of any Casualty that damages or renders unusable the Property or any part thereof and, except as otherwise provided below, shall promptly and diligently pursue Borrower’s claim for a Condemnation award or insurance proceeds, as applicable. Borrower shall not make any agreement in lieu of Condemnation or accept any Condemnation award without Lender’s prior written consent (which Lender agrees not to unreasonably withhold or delay). Borrower shall not accept any settlement of insurance proceeds with respect to a Casualty without Lender’s prior written consent (which Lender agrees not to unreasonably withhold or delay). If requested by Lender, Borrower agrees to provide copies to Lender of all notices or filings made or received by Borrower in connection with the Casualty or Condemnation or with respect to collection of the insurance proceeds or Condemnation award, as applicable. Notwithstanding that a Casualty or Condemnation has occurred, or that rights to a Condemnation award or insurance proceeds are pending, Borrower shall continue to pay the Loan at the time and in the manner provided in this Loan Agreement.

          (b) Lender Right to Pursue Claim. If the amount of any claim arising with respect to Casualty or Condemnation exceeds $250,000, Lender may elect, at Lender’s option, either: (i) to settle and adjust any claim arising with respect to the Casualty or Condemnation without Borrower’s consent, or (ii) to allow Borrower to settle and adjust such claim; provided that, in either case, the insurance proceeds or Condemnation award, as applicable, is paid directly to Lender. Borrower hereby appoints Lender its attorney-in-fact with full power of substitution (and which shall be deemed to be coupled with an interest and irrevocable until the Loan is paid and the Security Instrument is discharged of record, with Borrower hereby ratifying all that its said attorney shall do by virtue thereof) to endorse any agreements, instruments or drafts received in connection with a Casualty or Condemnation. If any portion of the insurance proceeds or Condemnation award, as applicable, should be paid directly to Borrower, Borrower shall be deemed to hold such amounts in trust for Lender and shall promptly remit such amounts to Lender. If the Property is sold, through foreclosure or otherwise, prior to the receipt of the Condemnation award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the proceeds of such sale in an amount sufficient to pay the Loan in full. All expenses reasonably incurred by Lender in the settlement and collection of amounts paid with respect to a Casualty or Condemnation (including, without limitation, reasonable legal fees and expenses) shall be deducted and reimbursed to Lender from the insurance proceeds or Condemnation award, as applicable, prior to any other application thereof. The insurance proceeds or Condemnation award paid or payable on account of a Casualty or Condemnation, as applicable (including all business interruption insurance proceeds paid as a result of such Casualty or Condemnation), less expenses to be reimbursed to Lender hereunder, is referred to herein as the “Restoration Proceeds.”

          (c) Application of Restoration Proceeds; Restoration Obligations. Except as specifically hereafter provided in subsection (d) below, Lender may, in its sole discretion, either (i) apply the Restoration Proceeds to payment of the Loan, whether or not then due and payable,

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or (ii) hold and release the Restoration Proceeds to Borrower (A) for the costs of Restoration undertaken by Borrower in accordance with this Loan Agreement and (B) to cover any shortfall in Operating Income as a result of such Casualty or Condemnation that is necessary to pay in full the debt service payments due from Borrower on each Payment Due Date and other Operating Expenses falling due during the period until Restoration is completed; provided, however, that Lender shall have no obligation to release Restoration Proceeds to fund amounts contemplated by clause (B) unless (1) Lender is satisfied that Restoration Proceeds are sufficient to pay in full the estimated cost to complete Restoration and (2) all Operating Expenses to be funded with Restoration Proceeds are approved by Lender. If Lender applies Restoration Proceeds to payment of the Loan and the Loan is still outstanding, interest will continue to accrue and be due on the unpaid principal at the Applicable Interest Rate. If Lender makes the Restoration Proceeds available to Borrower for Restoration, Borrower shall diligently pursue Restoration so as to restore the Property to at least equal value and substantially the same character as existed immediately prior to such Casualty or Condemnation. Provided the cost of Restoration exceeds $250,000, all plans and specifications for the Restoration and all contractors, subcontractors and materialmen to be engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to Lender’s prior review and approval, which Lender agrees not to unreasonably withhold or delay. Lender may engage, at Borrower’s expense, an independent engineer or inspector to assist Lender in its review of the approvals requested of Lender in connection with the Restoration and to periodically inspect the Restoration in progress and upon substantial completion.

          (d) Condition to Release of Restoration Proceeds for Restoration. Lender agrees to make the Restoration Proceeds available to Borrower for Restoration as long as:

(i)	The Restoration Proceeds recovered are less than the outstanding principal balance of the Loan.
(ii)	No Event of Default exists.
(iii)	Borrower demonstrates to Lender’s satisfaction that the Restoration Proceeds are sufficient to pay in full the estimated cost to complete Restoration and any shortfalls in Operating Income as a result of such Casualty or Condemnation that are anticipated until Restoration is substantially completed, or, if the Restoration Proceeds are determined by Lender to be insufficient to pay such costs in full, Borrower deposits with Lender, in cash or by a cash equivalent acceptable to Lender, the additional amount estimated by Lender to be necessary to pay the full cost of Restoration (“Restoration Deficiency Deposit”).
(iv)	Intentionally Omitted.
(v)	Restoration can be completed not later than the earlier of (A) twelve (12) months from the date the Casualty or Condemnation occurred, (B) the earliest date by which completion is required under the Requirements of Law to preserve the right to rebuild the

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	Improvements as they existed prior to the Casualty or Condemnation, (C) the expiration of Borrower’s business interruption insurance, or (D) six (6) months prior to the Maturity Date (without taking into consideration any unexercised extension).
(vi)	If a Condemnation has occurred, (A) less than ten percent (10%) of the Land is taken and the land taken is along the perimeter or periphery of the Land, and (B) no portion of any structural Improvements are taken which would have a Material Adverse Effect.
(vii)	If a Casualty has occurred, (A) less than 10% of the paved parking area of the Individual Property is damaged or rendered unusable by the Casualty, and (B) no portion of any structural Improvements are damaged or rendered unusable which would have a Material Adverse Effect.
(viii)	Intentionally Omitted.
(ix)	The Property and its use after completion of Restoration will be in compliance in all material respects with, and permitted under, all Requirements of Law.

          (e) Disbursement Procedure; Holdback. If the Restoration Proceeds will be made available by Lender to Borrower for Restoration and the estimated cost of Restoration approved by Lender (together with all other amounts then held by Borrower pursuant to this subsection (e)) is less than $250,000, Lender shall disburse the entire amount of the Restoration Proceeds to Borrower, and Borrower hereby covenants and agrees to use the Restoration Proceeds solely for Restoration performed in accordance with this Loan Agreement. If, however, the estimated cost of Restoration approved by Lender (together with all other amounts then held by Borrower pursuant to this subsection (e)) is $250,000 or more than $250,000, Lender may retain the Restoration Proceeds in an interest bearing escrow account and make periodic disbursements to Borrower as follows:

(i) Disbursements for Restoration.

                              (A) Lender will disburse Restoration Proceeds for the costs of Restoration to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence reasonably satisfactory to Lender that (1) all materials installed and work and labor performed in connection with the Restoration have been paid in full (except to the extent that they are to be paid out of the requested disbursement), and (2) there exist no notices of pendency, stop orders, mechanic’s or materialmens’ liens or notices of intention to file same, or any other Liens of any nature whatsoever on the Property arising out of the Restoration which have not either been fully bonded and discharged of record or, in the alternative, fully insured to Lender’s reasonable satisfaction by the title company insuring the Lien of the Security Instrument.

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                              (B) Lender may limit disbursements to not more than one (1) per month.

                              (C) Lender may hold-back from each requested disbursement an amount equal to the greater of (1) ten percent (10%) of the requested disbursement or (2) the amount which Borrower is permitted to withhold under its contract with the contractor or supplier to be paid with the proceeds of such disbursement (either, a “Restoration Holdback”). Amounts held as the Restoration Holdback shall be disbursed once: (1) Lender receives satisfactory evidence that Restoration has been fully completed in accordance with all Requirements of Law; (2) Lender receives satisfactory evidence that all Restoration costs have been paid in full or will be fully paid from the remaining Restoration Proceeds and the Restoration Holdback; and (3) Lender receives, at Lender’s option, a search of title to the Property, effective as of the date on which the Restoration Holdback is to be disbursed, showing no Liens other than the Permitted Encumbrances or an endorsement to its Title Insurance Policy which updates the effective date of such policy to the date on which the Restoration Holdback is to be disbursed and which shows no Liens since the date of recordation of the Security Instrument (other than the Permitted Encumbrances).

                              (D) Notwithstanding subsection I above, Lender may release from the Restoration Holdback payments to a contractor or supplier if: (1) Lender receives satisfactory evidence that such contractor has satisfactorily completed its contract with Borrower; (2) such contractor or supplier delivers to Lender an acceptable written waiver of its mechanic’s lien, in recordable form; and (3) Borrower provides written consent from the surety company, if any, which has issued a payment or performance bond with respect to such contractor or supplier.

(ii)

Disbursements for Shortfalls in Operating Income. Provided that Lender determines that the Restoration Proceeds are sufficient to pay in full the estimated cost to complete Restoration, Lender will disburse Restoration Proceeds not reserved for Restoration to pay the shortfall in Operating Income necessary to pay (A) first, the debt service payments due from Borrower on each Payment Due Date falling due from the date of the Casualty or Condemnation through the date on which Restoration is substantially completed and (B) then, any Operating Expenses approved by Lender. Lender may require satisfactory evidence that Operating Expenses to be paid have been incurred and may issue payments directly to the Person entitled to the payment claimed as an Operating Expense.

(iii)

Restoration Proceeds Deemed Insufficient. If, in Lender’s judgment, at any time during Restoration, the undisbursed portion of the Restoration Proceeds shall not be sufficient to pay the costs remaining for Restoration to be completed or to pay any shortfall in Operating Income needed to pay in full Borrower’s debt service payments on the Loan and Operating Expenses anticipated to be incurred during the period of Restoration, Borrower shall deposit

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	the deficiency with Lender, in cash or by a cash equivalent acceptable to Lender (also called a “Restoration Deficiency Deposit”), within ten (10) days after Lender’s notice of such deficiency, and no further disbursement of the Restoration Proceeds will be made until such funds are deposited. Amounts held by Lender as the Restoration Deficiency Deposit shall be disbursed in accordance with this Section 9.04.
(iv)	Consequence of Event of Default. Lender shall not be obligated to disburse Restoration Proceeds or amounts from the Restoration Holdback when an Event of Default exists, and upon the occurrence of an Event of Default, any undisbursed portion of the Restoration Proceeds (including the Restoration Deficiency Deposit and the Restoration Holdback) may, at Lender’s option, be applied against the Loan, whether or not then due or accelerated, in such order and manner as Lender determines.
(v)	Surplus Restoration Proceeds After Restoration Completion. Any Restoration Proceeds remaining after full payment of Restoration costs and unpaid expenses due to Lender for which Lender is permitted reimbursement under this Section 9.04 shall be released to Borrower provided no Event of Default exists, and Borrower delivers evidence satisfactory to Lender that (i) Restoration has been fully completed in accordance with all Requirements of Law and (ii) the Property is free and clear of all Liens which may be asserted with respect to the Restoration.

     9.05. Inspections and Right of Entry. Lender and its agents may enter the Property upon prior notice to Borrower (notice to be given not less than two (2) business days prior to entry by Lender or its agents unless an Event of Default or an emergency exists, as determined by Lender in good faith) to inspect the Property and Borrower’s books and records relating to the Property. In making such entry and inspection, Lender agrees to use reasonable efforts to minimize disturbance to Borrower and tenants of the Property. Lender and its agents shall have access, at all reasonable times, to the Property, including, without limitation, all contracts, plans and specifications, permits, licenses and approvals required or obtained in connection with the Property.

     9.06. Leases and Rents.

          (a) Right to Enter into New Leases. Borrower may enter into new Leases for space at the Property and renew or extend existing Leases only with Lender’s prior written consent, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Lender’s approval shall not be required for leases (“Permitted Leases”) which (i) are for non-parking related uses, (ii) have a term of three (3) years or less, (iii) together with all other Leases affecting the operation of the Individual Property in question, do not generate in excess of five percent (5%) of the gross revenue attributable to such operation of the Individual Property, and (iv) do not contain provisions permitting tenant mortgages, options, rights of first refusal or

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offer, exclusivity, or extension options in favor of the tenant thereunder. Borrower shall promptly deliver to Lender a copy of each executed Lease. All subleases shall be in accordance with the terms and conditions of the applicable existing Leases.

          (b) Leasing Decisions. Other than Permitted Leases, Borrower may not, without Lender’s prior written consent: (i) amend or supplement any Lease or waive any term thereof (including, without limitation, shortening the Lease term, reducing Rents, granting Rent abatements, or accepting a surrender of all or any portion of the leased space); (ii) cancel or terminate any Lease; (iii) consent to a tenant’s assignment of its Lease or subleasing of space; or (iv) amend, supplement, waive or terminate any Lease Guaranty; provided that none of the foregoing actions (taking into account the planned alternative use of the affected space in the case of termination, rent reduction, surrender of space or shortening of term) will have a Material Adverse Effect on the value of the Property taken as a whole and such Lease, as amended, supplemented or waived, is otherwise in compliance with the requirements of Section 9.06(a) hereof. Termination of a Lease with a tenant who is in default beyond applicable notice and grace/cure periods shall not be considered an action which has a Material Adverse Effect on the value of the Property taken as a whole. Any action with respect to any Lease that does not satisfy the requirements set forth in this Section 9.06 requires Lender’s prior written approval, which may not be unreasonably withheld or delayed, at Borrower’s expense (including reasonable legal fees). Borrower shall promptly deliver to Lender a copy of all instruments documenting the action taken, together with written certification from a Responsible Officer that (x) the copies delivered are true, complete and correct copies of the materials represented thereby and (y) Borrower has satisfied all conditions of this Section 9.06. Lender’s acceptance of Borrower’s certification or a copy of such Lease materials shall not be deemed a waiver of the requirements of this Section 9.06 if the action taken is not in compliance herewith.

          (c) Observance of Lessor Obligations. Borrower (i) shall observe and perform all obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Loan; (ii) upon Lender’s request, shall promptly send copies to Lender of all notices of default which Borrower shall send or receive (or may have sent or received) under any non-residential Lease; (iii) shall enforce in a commercially reasonable manner all of the material terms, covenants and conditions contained in the Leases to be observed or performed by the tenant; (iv) shall not collect any Rents more than one (1) month in advance which, in the aggregate, exceed $50,000 (and for this purpose a security deposit shall not be deemed Rent collected in advance); and (v) shall not execute any assignment or pledge of the lessor’s interest in any of the Leases or the Rents (other than in connection with the Loan).

     9.07. Use of Property. Borrower shall not allow changes in the use of the Property without Lender’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. Borrower shall not initiate, join in, or consent to any change in any private restrictive covenant or zoning or land use ordinance limiting or defining the uses which may be made of the Property as of the Closing Date. If use of all or any portion of the Property is or shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or the nonconforming portion of the Property to be abandoned without Lender’s prior written consent.

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     9.08. Maintenance of Property. Borrower shall maintain the Property in a good and safe condition and repair. No portion of the Property shall be removed, demolished or materially altered (except for normal repair or replacement) without Lender’s prior written consent. Borrower shall promptly repair or replace any portion of the Property which may become damaged, worn or dilapidated. Borrower shall obtain and maintain all licenses, permits, registrations, certificates and other approvals, governmental and otherwise (including, without limitation, zoning, building code, land use and environmental), necessary for the use, occupancy and operation of the Property and the conduct of its business thereat.

     9.09. Waste. Borrower shall not commit or suffer any waste of the Property or do or permit to be done thereon anything that may in any way impair the value of the Property or invalidate the insurance coverage required hereunder to be maintained by Borrower. Borrower will not, without Lender’s prior written consent, permit any drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of the Property, regardless of the depth thereof or the method of mining or extraction thereof.

     9.10. Compliance with Laws.

          (a) Obligation to Perform. Borrower shall promptly and fully comply with all Requirements of Law now or hereafter affecting the Property. Borrower shall notify Lender promptly of Borrower’s knowledge or receipt of any notice related to a violation of any Requirements of Law or of the commencement of any proceedings or investigations which relate to compliance with Requirements of Law. At Lender’s request, Borrower shall provide Lender with copies of all notices, reports or other documents relating to any litigation or governmental investigation relating to Borrower or the Property.

          (b) Right to Contest. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceedings, promptly initiated and conducted in good faith and with due diligence, the Requirements of Law affecting the Property or alleged violation thereof, provided that: (i) no Event of Default exists; (ii) such proceeding shall not otherwise be prohibited by any, and shall be conducted in accordance with all Requirements of Law; (iii) the Property will not be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) non-compliance with such Requirement of Law shall not impose any civil liability on Lender or Borrower which has not otherwise been accounted for by the reserve created under clause (v) below, or any criminal or environmental liability on Lender or Borrower; (v) Borrower deposits with Lender cash (or other security reasonably acceptable to Lender) in such amount as Lender deems sufficient to cover loss or damage that may result from Borrower’s failure to prevail in such contest, provided that after a Securitization, one hundred twenty-five percent (125%) of the amount estimated by Lender is deposited; (vi) Borrower furnishes to Lender all other items reasonably requested by Lender; and (vii) upon a final determination thereof, Borrower promptly complies with the obligations, if any, determined to be applicable.

     9.11. Financial Reports, Books and Records.

          (a) Delivery of Financial Statements. Borrower shall keep adequate books and records of account with respect to its financial condition and the operation of the Property, in accordance with GAAP consistently applied (or such other method which is reasonably

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acceptable to Lender), and shall furnish the following to Lender, each prepared in such detail as reasonably required by Lender and certified by a Responsible Officer to be true, complete and correct:

(i)	if requested by Lender (but not more often than once per calendar quarter), a Rent Roll;
(ii)	as soon as available, but in any event within sixty (60) days after the end of each fiscal quarter, a quarterly operating statement for Borrower detailing the Operating Income received, Operating Expenses incurred, the cost of all Capital Improvements and Replacements performed or paid during such quarter, and the Debt Service Coverage Ratio as of the end of such fiscal quarter;
(iii)	within sixty (60) days after the end of each fiscal quarter, a quarterly, Compliance Certificate;
(iv)	as soon as available, but in any event within one hundred twenty (120) days after the close of Borrower’s fiscal year, (A) an annual operating statement for each Property presented on a basis consistent with the quarterly operating statements described above and audited by an independent certified public accountant; (B) an annual balance sheet and profit and loss statement for Borrower audited by an independent certified public accountant; and (C) a statement of change of financial position of Borrower, setting forth in comparative form the figures for the previous fiscal year;
(v)	if requested by Lender, an annual operating budget for Borrower presented on a monthly basis consistent with the information required in the quarterly operating statement described above which budget shall be subject to Lender’s approval; and
(vi)	such other financial information or property management information (including, without limitation, copies of Borrower’s state and federal tax returns, information on tenants under Leases to the extent such information is available to Borrower, and an accounting of security deposits) as may reasonably be required by Lender from time to time.

Notwithstanding the foregoing, (i) upon the request of Lender prior to a Securitization, or (ii) following an Event of Default. Borrower shall promptly provide monthly statements in connection with subsections (ii) and (iii) above, within twenty (20) days following the end of each calendar month.

          (b) Lender Audit Rights. Lender and its agents have the right, upon prior written notice to Borrower (notice to be given at least two (2) business days prior to such inspection unless an Event of Default exists), to examine the records, books and other papers which reflect upon Borrower’s financial condition or pertain to the income, expense and

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management of the Property and to make copies and abstracts from such materials. Lender also shall have the right, from time to time (but, in the absence of an Event of Default existing, not more than annually) and upon prior notice to Borrower (notice to be given unless an Event of Default exists), to have an independent audit conducted of any of Borrower’s financial information. Lender shall pay the cost of such audit unless Lender performed the audit following the occurrence of an Event of Default or if the results of Lender’s audit disclose an error in the categories of total income, total expenses, total assets or total liabilities by more than ten percent (10%), in which case (and in addition to Lender’s other remedies) Borrower shall pay the cost incurred by Lender with respect to such audit upon Lender’s demand. Upon Borrower’s failure to pay such amounts, and in addition to Lender’s remedies for Borrower’s failure to perform, the unpaid amounts shall be added to principal, shall bear interest at the Default Rate until paid in full, and payment of such amounts shall be secured by the Security Instrument and other collateral given to secure the Loan.

          (c) Financial Reports From Guarantors and Equity Owner. Borrower shall cause each Guarantor and, at Lender’s request, the Equity Owner, to provide to Lender (i) within ninety (90) days after the close of such party’s fiscal year, such party’s balance sheet and profit and loss statement (or if such party is an individual, within ninety (90) days after the close of each calendar year, such party’s personal financial statements) in form reasonably satisfactory to Lender and certified by such party to be accurate and complete; and (ii) such additional financial information (including, without limitation, copies of state and federal tax returns) as Lender may reasonably require from time to time and in such detail as reasonably required by Lender.

          (d) Data Delivery Failure. If a Data Delivery Failure occurs, Borrower shall pay Lender, without demand, the applicable Data Delivery Failure Fee on the first Business Day following each occurrence of a Data Delivery Failure. If a Data Delivery Failure occurs on more than two (2) separate occasions during any twelve month period or on more than five (5) occasions while the Loan is outstanding, it shall be an immediate Event of Default hereunder. The collection of the Data Delivery Failure Fee shall be in addition to Lender’s other rights and remedies under the Loan Documents and, until paid, shall be deemed added to the Debt, secured by the Security Instrument and shall bear interest at the Default Rate.

     9.12. Performance of Other Agreements. Borrower shall observe and perform in a timely manner each and every obligation to be observed or performed by Borrower pursuant to the terms of any agreement or recorded instrument affecting or pertaining to the Property or used in connection with the operation of the Property (including, without limitation, the Operating Agreements and the Ground Lease). Without limiting the foregoing, Borrower shall (a) give prompt notice to Lender of any notice received by Borrower with respect to any of the Operating Agreements and the Ground Lease which alleges a default or nonperformance by Borrower thereunder, together with a complete copy of any such notice; (b) enforce, short of termination, performance of the Operating Agreements and the Ground Lease to be performed or observed, and (c) not terminate or amend, or waive compliance with, any of the Operating Agreements and the Ground Lease without Lender’s prior written consent, except as may be (i) permitted pursuant to the respective terms thereof or (ii) absent the existence of an Event of Default, done in the ordinary course of business. If the absence of an Operating Agreement that has terminated will have a Material Adverse Effect on the value of the Property, Borrower agrees to use commercially reasonable efforts to enter into a new Operating Agreement in replacement of the

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terminated Operating Agreement, containing terms and conditions no less favorable to Borrower than the terminated Operating Agreement. Borrower shall notify Lender if Borrower does not replace any terminated Operating Agreement, the absence of which is likely to have a Material Adverse Effect.

     9.13. Existence; Change of Name; Location as a Registered Organization. Borrower shall continuously maintain (a) its existence and shall not dissolve or permit its dissolution, and (b) its rights and franchises to do business in each state where the Property is located. Borrower shall not change Borrower’s name, legal entity, or its location as a registered organization within the meaning of the UCC, without notifying Lender of such change in writing at least thirty (30) days prior to its effective date. The notification requirements set forth in this Section are in addition to, and not in limitation of, the requirements of Article 7. Borrower shall pay all costs and expenses incurred by Lender (including, without limitation, reasonable legal fees) in connection with any change described herein.

     9.14. Property Management.

          (a) Borrower shall cause the Property Manager to manage the Property in a first class manner. Borrower shall not remove or replace the Property Manager (which, with respect to a Property Manager which is an Affiliate of Borrower, shall be deemed to occur upon a change of Control of the Property Manager) or modify or waive any material terms of the Property Management Contract without Lender’s prior written consent and, if requested by Lender, a Rating Confirmation. Upon replacement of the Property Manager, Borrower shall, and shall cause the new manager of the Property to, execute an Assignment of Property Management Contract in form and substance similar to the Assignment of Property Management Contract executed by the Property Manager. Borrower shall comply with all obligations of Borrower under the Assignment of Property Management Contract. The property management fee and all other fees payable under the Property Management Contract shall not exceed 3.5% of Operating Income.

          (b) Termination of Property Manager. Borrower agrees, that, if (i) irrespective of whether an Event of Default exists, Lender, in its reasonable discretion, determines that the Property is not being properly managed in accordance with management practices customarily employed for properties similar to the Property, (ii) an Event of Default exists, (iii) a default or event of default exists under the Property Management Contract, or (iv) Property Manager becomes insolvent, Lender may direct Borrower to terminate the Property Management Contract and to replace Property Manager with a management company acceptable to Lender, provided that, with respect to Section 9.14(b)(i) only, prior to requiring the termination of the Property Management Contract, Lender shall deliver written notice to Borrower and Property Manager, which notice shall specify in reasonable detail the grounds for Lender’s determination. If Lender reasonably determines that the conditions specified in Lender’s notice are not remedied to Lender’s reasonable satisfaction by Borrower or Property Manager within thirty (30) days from receipt of such notice or if Borrower or Property Manager have failed to diligently undertake correcting such conditions within such thirty (30) day period, Lender may direct Borrower to terminate the Property Management Contract and to replace Property Manager with a management company acceptable to Lender.

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     9.15. ERISA. Borrower shall not engage in any transaction which would cause any obligation or action taken or to be taken hereunder by Borrower (or the exercise by Lender of any of its rights under any of the Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA. Borrower agrees to deliver to Lender such certifications or other evidence throughout the term of the Loan as requested by Lender in its sole discretion to confirm compliance with Borrower’s obligations under this Section 9.15 or to confirm that Borrower’s representations and warranties regarding ERISA remain true.

     9.16. Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws. Borrower shall comply in all material respects with all Requirements of Law relating to money laundering, anti-terrorism, trade embargos and economic sanctions, now or hereafter in effect. Upon Lender’s request from time to time during the term of the Loan, Borrower shall certify in writing to Lender that Borrower’s representations, warranties and obligations under Section 8.28 and this Section 9.16 remain true and correct in all material respects and have not been breached. Borrower shall immediately notify Lender in writing if any of such representations, warranties or covenants are no longer true or have been breached or if Borrower has a reasonable basis to believe that they may no longer be true or have been breached in any material respect. In connection with such an event, Borrower shall comply in all material respects with all Requirements of Law and directives of Governmental Authorities and, at Lender’s request, provide to Lender copies of all notices, reports and other communications exchanged with, or received from, Governmental Authorities relating to such an event. Borrower shall also reimburse Lender any reasonable expense incurred by Lender in evaluating the effect of such an event on the Loan and Lender’s interest in the collateral for the Loan, in obtaining any necessary license from Governmental Authorities as may be necessary for Lender to enforce its rights under the Loan Documents, and in complying with all Requirements of Law applicable to Lender as the result of the existence of such an event and for any penalties or fines imposed upon Lender as a result thereof

     9.17. Equity Contribution. On the Closing Date, the equity owners of Borrower shall provide satisfactory evidence to Lender that they have, as of the Closing Date, an aggregate equity investment in Borrower in an amount not less than $16,250,000 in a manner which is satisfactory to Lender.

     9.18. Net Worth Covenant. Until the Loan is paid in full, Guarantor shall maintain at all times a Net Worth (exclusive of any direct or indirect interest in the Property) at least equal to $20,000,000, and, within ten (10) Business Days of Lender’s request, Borrower shall demonstrate in writing and to Lender’s reasonable satisfaction, compliance with this Section.

     9.19. Liquidity Covenant. Until the Loan is paid in full, Guarantor shall maintain at all times a Liquidity (exclusive of any direct or indirect interest in the Property) at least equal to $1,000,000, and, within ten (10) Business Days of Lender’s request, Borrower shall demonstrate in writing and to Lender’s reasonable satisfaction, compliance with this Section.

     9.20. Ground Lease Covenants.

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          (a) Borrower covenants and agrees as follows: (i) promptly and faithfully to observe, perform and comply in all material respects with all of the terms, covenants and provisions of each Ground Lease; (ii) to refrain from doing anything and not do or permit any act, event or omission, as a result of which, there is likely to occur a default or breach under any Ground Lease; (iii) to promptly give Lender notice of any default under the Ground Lease upon learning of such default and immediately deliver to Lender a copy of each notice of default and all responses to such notice of default and all other material instruments, notices or demands received or delivered by Borrower under or in connection with the Ground Lease; (iv) to promptly notify Lender in writing in the event of the initiation of any litigation or arbitration proceeding affecting Borrower or the Property under or in connection with the Ground Lease; (v) within ten (10) Business Days of each request by Lender to furnish to Lender an estoppel certificate from Borrower in such form as Lender may reasonably request from time to time concerning Borrower’s due observance, performance and compliance in all material respects with the terms, covenants and provisions of the Ground Lease; (vi) it will not voluntarily or involuntarily, directly or indirectly, assign, transfer or convey the Property or the Leasehold Estate, nor surrender, terminate or cancel the Ground Lease nor, without the prior written consent of Lender, fail to exercise in a timely manner any purchase option(s) or renewal option(s) contained in the Ground Lease, if applicable, nor, without the prior written consent of Lender; and (vii) modify, alter or amend the Ground Lease, either orally or in writing. Any assignment, transfer, conveyance, surrender, termination, cancellation, modification, alteration or amendment of the Ground Lease in contravention of the foregoing shall be void and of no force and effect.

          (b) Additional Covenants. Borrower further covenants and agrees that it will not fail to exercise in a timely manner any renewal option(s) contained in each Ground Lease, if reasonably required by Lender, nor, without the prior written consent of Lender, modify, alter or amend any Ground Lease, either orally or in writing, which consent (a) with respect to monetary or material non-monetary provisions, may be granted, conditioned or withheld in Lender’s sole discretion and (b) with respect to non-monetary, non-material provisions, may not be unreasonably withheld, conditioned or delayed. Any assignment, transfer, conveyance, surrender, termination, cancellation, modification, alteration or amendment of any Ground Lease in contravention of the foregoing sentence shall be void and of no force and effect. For the purposes of this Section 9.20(b), the phrase “material non-monetary” shall mean provisions with respect to any of the following: (i) the term of any Ground Lease, (ii) any economic matter (including costs passed through to Borrower) that would affect the rent or any other charge thereunder, (iii) any security deposit, if any, (iv) defaults, events of default and remedies, (v) termination or cancellation, (vi) disposition of casualty or condemnation proceeds, (vii) transfer of the leased premises, (viii) tenant mortgages, (ix) assignment and subletting (other than as otherwise permitted in such lease and this Loan Agreement) or (x) options, rights of first refusal or offer and extension options.

          (c) Default. In the event of a default by Borrower under the Ground Lease, then, in each and every such case, Lender may (but shall not be obligated to), in its sole discretion and without notice to Borrower, cause such default or defaults by Borrower to be remedied and otherwise take or perform such other actions as Lender may reasonably deem necessary or desirable as a result thereof or in connection therewith. Borrower shall, on demand, reimburse Lender for all advances reasonably made and expenses reasonably incurred by Lender

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in curing any such default(s) (including, without limitation, reasonable attorneys’ fees), together with interest thereon from the date if different until the same is paid in full to Lender and all such sums so advanced shall be secured hereby. The provisions of this subsection are in addition to any other right or remedy given to or allowed Lender under the Ground Lease or otherwise.

          (d) Cancellation or Termination. If the Ground Lease is cancelled or terminated, Lender or its nominee shall acquire an interest in any new lease of the Leasehold Estate by Borrower.

          (e) Ground Lease Estoppel Certificate. Borrower shall from time to time within ten (10) Business Days of Lender’s request to obtain and deliver (or cause to be delivered) to Lender, an estoppel certificate, in a form reasonably acceptable to Lender, from the Ground Lessor.

          (f) No Liability. Notwithstanding anything contained herein or otherwise to the contrary, Lender shall not have any liability or obligation under the Ground Lease, by virtue of its acceptance of this Security Instrument. Borrower acknowledges and agrees that Lender shall be liable for the obligations of the Borrower arising under the Ground Lease, as applicable, for only that period of time, if any, during which Lender is in possession of the Leasehold Estate, as applicable, or has acquired, by foreclosure, power of sale or otherwise, and is holding, all of Borrower’s right, title and interest as tenant in either or both of the Leasehold Estate.

          (g) Bankruptcy. Notwithstanding anything contained herein or otherwise to the contrary, Borrower hereby assigns, transfers and sets over to Lender any and all rights and interests that may arise in favor of Borrower in connection with or as a result of the bankruptcy or insolvency of the Ground Lessor, as applicable, including, without limitation, all of Borrower’s right, title and interest in, to and under §365 of the Bankruptcy Code (11 U.S.C. §365), as the same may be amended, supplemented or modified from time to time

          (h) Taxes. In the event that it is claimed by any governmental agency, authority or subdivision that any tax or governmental charge or imposition is due, unpaid or payable by Borrower upon or in connection with the Ground Lease, Borrower shall promptly either (i) pay such tax, charge or imposition when due and deliver to Lender reasonably satisfactory proof of payment thereof or (ii) contest such tax in accordance with the applicable provisions of this Loan Agreement. If liability for such tax is asserted against Lender, Lender will give to Borrower prompt notice of such claim, and Borrower, upon complying with the provisions of this Loan Agreement shall have full right and authority to contest such claim of taxability.

ARTICLE 10

NO TRANSFERS OR ENCUMBRANCES; DUE ON SALE

     10.01. Prohibition Against Transfers. Borrower shall not permit any Transfer to be undertaken or cause any Transfer to occur other than a Permitted Transfer. Any Transfer made in violation of this Loan Agreement shall be void.

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     10.02. Lender Approval. Except as otherwise provided in this Section 10.02, Lender’s decision to approve any Transfer proposed by Borrower shall be made in Lender’s sole discretion and Lender shall not be obligated to approve any Transfer. Notwithstanding the foregoing, Lender will not unreasonably withhold its consent one (1) time during the term of the Loan to a transfer or sale (but not a pledge, mortgage, assignment, encumbrance or other transfer as security for an obligation) of the Property and Borrower’s obligations under the Loan Documents to a Qualified Transferee, provided Borrower satisfies all of the conditions set forth in this Section 10.02. Borrower agrees to supply all information Lender may request to evaluate a Transfer, including, without limitation, information regarding the proposed transferee’s ownership structure, financial condition and management experience for comparable properties. Borrower acknowledges that Lender may impose conditions to its approval of a Transfer, including, without limitation, (i) no Event of Default, or an event which with the giving of notice or lapse of time or both could become an Event of Default, has occurred and is continuing, (ii) approval of the proposed transferee’s ownership structure, financial condition and management experience for comparable properties, (iii) payment of an assumption fee equal to one-half of one percent (0.50%) of the outstanding principal balance of the Loan, (iv) replacing the Guarantors with substitute guarantors reasonably acceptable to Lender, (v) assumption in writing by the transferee and a guarantor acceptable to Lender in its sole discretion of all obligations of the transferor and Guarantor under the Loan Documents and execution and delivery of such other documentation as may be required by Lender and the Rating Agencies, (vi) delivery of a new substantive nonconsolidation opinion, and other applicable opinions as required by Lender and the Rating Agencies, (vii) adjusting amounts required for the Reserve Accounts, and (viii) obtaining Rating Confirmations if a Securitization has occurred. Borrower agrees to pay all of Lender’s reasonable expenses incurred in connection with reviewing and documenting a Transfer (including, without limitation, the costs of obtaining Rating Confirmations if required), which amounts must be paid by Borrower whether or not the proposed Transfer is approved. Upon Borrower’s failure to pay such amounts, and in addition to Lender’s remedies for Borrower’s failure to perform, the unpaid amounts shall be added to principal, shall bear interest at the Default Rate until paid in full, and payment of such amounts shall be secured by the Security Instrument and other collateral given to secure the Loan. Lender acknowledges that Macquarie Infrastructure Company, Inc. (“MIC”), which is the parent of Macquarie Americas Parking Corporation (“MAPC”), which is the parent of PCAA Parent, LLC, is currently engaged in negotiations to obtain a credit facility from Credit Suisse, Cayman Islands Branch, Citigroup Global Markets Inc., Merrill Lynch Capital Corporation and/or Macquarie Bank Limited and/or one or more comparable lending institutions (“Creditors”) and may in the future seek other credit facilities from other comparable financial institutions (“Credit Facilities”). Notwithstanding any provision of this Agreement to the contrary, Lender consents to MIC’s proposed pledge of its equity interest in MAPC to the Creditors to secure any one or more such Credit Facilities, which consent does not include any transfer of MIC’s equity interest in MAPC to the Creditors pursuant to any enforcement of such pledge or otherwise.

     10.03. Borrower Right to Partial Releases for Partial Release Price.

          (a) Right to Release. Borrower shall have the right, from time to time, to obtain a partial release (“Partial Release”) of a Release Property from the Security Instrument, Assignment of Leases and Rents and related UCC financing statements. Borrower must provide not less than forty-five (45) days prior written notice to Lender requesting a Partial Release and

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identifying the Release Property and date upon which Borrower intends to have the Release Property released (“Partial Release Date”). Lender shall permit a Partial Release, upon satisfaction to Lender’s reasonable satisfaction of each of the following conditions:

(i)	No Event of Default shall exists at the time Borrower requests a Partial Release or on the Partial Release Date.
(ii)	On or before the Partial Release Date, Borrower shall deliver to Lender 125% of the Allocated Loan Amount (the “Partial Release Price” allocated to the Release Property under this Loan Agreement.
(iii)	Borrower pays to Lender a release fee equal to (A) one percent (1.00%) of the Partial Release Price for the applicable Property during the first twelve (12) months of the term of the Loan; (B) zero and one-half of one percent (0.50%) of the Partial Release Price for the applicable Property during the thirteenth (13th) through the eighteenth (18th) months of the term of the Loan; or (C) no release fee thereafter. “Such release fee is in lieu of any prepayment fee that might otherwise be payable in connection with such Partial Release Price under Section 2.05 of this Agreement.”
(iv)	As of the Partial Release Date, and, after giving effect to the Partial Release to occur on such date, (A) the Debt Service Coverage Constant Ratio is at least 1.00:1.00, the Debt Service Coverage Ratio is at least 1.50:1.00 and (C) the Loan to Value Ratio is at least 75%; each as determined by Lender.
(v)	The Property remaining after the Partial Release (and all prior Partial Releases) continues to be in material compliance with all Requirements of Law (including, without limitation, all zoning and subdivision laws, setback requirements, parking ratio requirements and use requirements), has direct access to a public right of way and is subject to no material encroachments from the Release Property and the applicable requirements of any Leases, and shall be assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any other property (including, without limitation, the Release Property).
(vi)	Borrower has delivered to Lender forms of all documents necessary to release the Release Property from the liens created by the Security Instrument, Assignment of Rents and Leases and related UCC financing statements, each in appropriate form required by the state in which the Release Property is located and otherwise reasonably satisfactory to Lender in all respects.
(vii)	Borrower has obtained a Rating Confirmation.

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(viii)	Borrower has delivered a Compliance Certificate along with a certificate from a Responsible Officer certifying that the requirements set forth in this Section 10.03 have been satisfied in all material respects.
(ix)	Borrower has paid all amounts then due and payable under the Loan Documents through (and including) the Release Date and in connection with the Partial Release.
(x)	Lender shall have received a copy of a deed conveying all of the Borrower’s right, title and interest in and to the Release Property to a Person and a letter from Borrower countersigned by a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records of the appropriate recording office in which the Release Property is located.

     Following a Partial Release under this subparagraph (a) or under subparagraph (b), all references in the Loan Documents shall be deemed to refer to the Property as it existed prior to the Partial Release less the Release Property. Subject to the provisions of Section 9.24 hereof, any transfer or termination of any Ground Lease (whether by expiration of the stated term or otherwise), or the loss of any license or permit or zoning designation necessary to operate the Individual Property as a parking lot (unless Borrower proves to Lender’s reasonable satisfaction that such license or permit can be obtained within a reasonable period of time, or, in the alternative, such loss will not have a material adverse impact on Borrower’s Operating Income) shall be deemed a Partial Release of such Property, and Borrower shall comply with all of the obligations set forth in this Section 10.03(a) within five (5) days of such transfer or termination.

          (b) Partial Release of Part of Oklahoma City Parcel. The parties agree that a portion of the Oklahoma City Property is excess land that is not being used by the Borrower, as shown on Exhibit H hereto (the “Excess Parcel”) and shall, upon Borrower’s written request, be released from the liens created by the Security Instrument, Assignment of Rents and Leases and related UCC financing statements, upon satisfaction to Lender’s reasonable satisfaction of each of the following conditions:

(i)	No Event of Default shall exist at the time Borrower requests a Partial Release or on the Partial Release Date.
(ii)	Borrower has delivered to Lender forms of all documents necessary to release the Release Property from the liens created by the Security Instrument, Assignment of Rents and Leases and related UCC financing statements, each in appropriate form required by the state in which the Release Property is located and otherwise reasonably satisfactory to Lender in all respects.

          (c) Reimbursement of Lender Expenses. Borrower agrees to pay all of Lender’s reasonable, out-of-pocket expenses incurred in connection with reviewing and

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documenting such Partial Release (including, without limitation, the costs of obtaining Rating Confirmations if required by Lender), which amounts must be paid by Borrower whether or not the proposed Partial Release is approved or executed. Upon Borrower’s failure to pay such amounts, and in addition to Lender’s remedies for Borrower’s failure to perform, the unpaid amounts shall be added to principal, shall bear interest at the Default Rate until paid in full and payment of such amounts shall be secured by the Security Instrument and other collateral given to secure the Loan.

          (d) Liens of Security Instrument Otherwise Unaffected. No Partial Release granted by Lender shall, in any way, impair or affect the lien or priority of the Security Instrument relating to the portion of the Property not included in the Partial Release (or any prior Partial Release) or improve the position of any subordinate lienholder with respect thereto, except to the extent that the obligations hereunder shall have been reduced by the actual monetary consideration, if any, received by Lender for such Partial Release. This Security Instrument shall continue as a Lien and security interest on the portion of the Property not included in a Partial Release (or any prior Partial Releases).

     10.04. Other Releases of the Mortgaged Property. In addition to the rights granted to Borrower under Section 10.03 with respect to the Release Properties, Lender may release any other portions of the Property for such consideration and upon such conditions as Lender may require without, as to the remainder of the Property, in any way impairing or affecting the Lien or priority of the Security Instrument or improving the position of any subordinate lienholder with respect thereto, except to the extent that the obligations hereunder shall have been reduced by the actual monetary consideration, if any, received by Lender for such release, and Lender may accept by assignment, pledge or otherwise any other property in place thereof as Lender may require without being accountable for so doing to any other lienholder. Notwithstanding anything to the contrary herein, Borrower shall have no right to request and Lender shall have no obligation to grant its consent to any release pursuant this Section 10.04.

     10.05. OFAC Compliance ; Substantive Consolidation Opinion. Notwithstanding anything to the contrary contained in this Article 10 (but without any Transfers deemed permitted by solely this Section 10.05), (a) no transfer (whether or not such transfer shall constitute a Transfer) shall be made to any Person on the OFAC List and (b) in the event any transfer (whether or not such transfer shall constitute a Transfer) results in any Person owning in excess of forty-nine percent (49%) of the ownership interest in Borrower or any Equity Owner (if such Person has not owned at least forty-nine percent (49%) of the ownership interest in Borrower or any Equity Owner, as applicable, prior to such transfer), Borrower shall, prior to such transfer, deliver a new substantive consolidation opinion letter (if one was delivered in connection with the closing of the Loan) with respect to the new equity owners which is acceptable in all respects to Lender and to the Rating Agencies if a Securitization has occurred.

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ARTICLE 11

EVENTS OF DEFAULT; REMEDIES

     11.01. Events of Default. The occurrence of any one or more of the following events shall, at Lender’s option, constitute an “Event of Default” hereunder:

          (a) If any payment of interest is not paid in full within five (5) days after the Payment Due Date on which such payment is due;

          (b) If any monthly payment required to be made to a Reserve Account is not paid within five (5) days after the Payment Due Date on which such payment is due;

          (c) If unpaid principal, accrued but unpaid interest and all other amounts outstanding under the Loan Documents are not paid in full on or before the Maturity Date;

          (d) Intentionally Omitted;

          (e) If the Prepayment Fee is not paid in full when required;

          (f) If any representation or warranty made by Borrower, Equity Owner or Guarantor herein, in the Guaranty, in the Environmental Indemnity or in any other Loan Document, or in any certificate, report, financial statement or other instrument or document furnished to Lender in connection herewith or hereafter, or in connection with any request for consent by Lender made during the term of the Loan shall have been false or misleading in any material respect as of the date made;

          (g) If Borrower, Equity Owner or Guarantor shall (i) make an assignment for the benefit of creditors; (ii) generally not be paying its debts as they become due; or (iii) admit in writing its inability to pay its debts as they become due;

          (h) If (i) Borrower, Equity Owner or Guarantor shall commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors (A) seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (ii) there shall be commenced against Borrower, Equity Owner or Guarantor any case, proceeding or other action of a nature referred to in clause (i) above by any party other than Lender which (A) results in the entry of an order for relief or any such adjudication or appointment, or (B) remains undismissed, undischarged or unbonded for a period of ninety (90) days; or (iii) there shall be commenced against Borrower, Equity Owner or Guarantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within ninety (90) days from the entry thereof; or (iv) Borrower, Equity Owner or Guarantor shall take any action in furtherance of, or indicating its

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consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;

          (i) If Guarantor repudiates or revokes the Guaranty or Environmental Indemnity;

          (j) If any judgment for monetary damages is entered against Borrower, Equity Owner or Guarantor which, in Lender’s sole judgment, has a Material Adverse Effect or is not covered to Lender’s satisfaction by collectible insurance proceeds;

          (k) If Borrower or Equity Owner violates or fails to comply in any material respect with any provision of Article 7 of this Loan Agreement (captioned: Single Purpose Entity Requirements);

          (l) If Borrower violates or fails to comply with any of the provisions of Section 9.03 (captioned: Insurance), Section 9.06 (captioned: Leases and Rents), or Section 9.13 (captioned: Existence, Change of Name or Location as a Registered Organization);

          (m) If a Transfer (other than a Permitted Transfer) occurs without Lender’s prior written consent or in violation of the terms of Lender’s consent;

          (n) If Borrower abandons or ceases work on any Capital Improvement or Replacement for a period of more than twenty (20) days, unless such cessation results from causes beyond the reasonable control of Borrower and Borrower is diligently pursuing reinstitution of such work or such cessation occurs in the ordinary course of business and will not have a Material Adverse Effect;

          (o) If a Lien (other than a Permitted Encumbrance or a Lien granted to Lender) is filed against the Property, unless such Lien is promptly contested in good faith by Borrower as permitted in accordance with Section 9.02 (b);

          (p) If a Data Delivery Failure occurs as described in Section 9.11(d);

          (q) If any of the material assumptions contained in the substantive nonconsolidation opinion delivered to Lender in connection with the Loan, or in any update thereof or in any additional substantive nonconsolidation opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;

          (r) If (i) any Rate Cap or Rate Swap Agreement is terminated for any reason by Borrower or the Rate Cap Provider or Rate Swap Provider, or (ii) the Rate Cap Provider or Rate Swap Provider defaults in the performance of its monetary obligations under the Rate Cap or Rate Swap or (iii) the rating of the Rate Cap Provider or Rate Swap Provider is subject to any downgrade, withdrawal or qualification by a Rating Agency, and Borrower does not within ten (10) days (A) replace such Rate Cap or Rate Swap Agreement with a replacement Rate Cap or Rate Swap Agreement which satisfies all of the requirements of Section 2.07 of this Loan Agreement, and is otherwise in the same notional amount and Strike Rate as the Rate Cap or Rate Swap Agreement it is replacing and (b) deliver to Lender, in form and substance reasonably satisfactory to Lender (x) an assignment of such Rate Cap or Rate Swap Agreement from the

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replacement Rate Cap Provider or Rate Swap Provider, (y) an acknowledgment and consent from such replacement Rate Cap Provider or Rate Swap Provider in substantially the same form as the Rate Cap Provider Consent or Rate Cap Provider Consent delivered to Lender as of the Closing Date and (z) any other opinions or documents required pursuant to Section 2.07 of this Loan Agreement;

          (s) If there is an event of default under the Ground Lease that continues beyond any applicable grace period or if a Ground Lease is amended, modified or terminated without Lender’s prior written consent; or

          (t) Except for the specific defaults set forth in this Section 11.01, if Borrower fails to perform fully and timely any obligation hereunder or under any other Loan Document, or any other default occurs hereunder or under any other Loan Document, in either case, which is not cured (i) in the case of any failure or default which can be cured by the payment of a sum of money, within five (5) days after written notice from Lender to Borrower, or (ii) in the case of any other failure or default, within thirty (30) days after written notice from Lender to Borrower; provided that if a failure or default under clause (ii) cannot reasonably be cured within such thirty (30) day period and Borrower has responsibly commenced to cure such failure or default promptly upon notice thereof from Lender and thereafter diligently proceeds to cure same, such thirty (30) day period shall be extended for so long as necessary to permit Borrower, in the exercise of due diligence, to cure such failure or default, but in no event shall the entire cure period be more than sixty (60) days.

     Notwithstanding the foregoing, a Guarantor’s actions in subsections (f), (g), (h), (i) and (s) shall not result in an Event of Default hereunder, if (i) Borrower provides a replacement Guarantor within ninety (90) days of the occurrence of any event described in such subsections who satisfies Lender’s requirements as to creditworthiness, net worth and liquidity substantially similar to those imposed by Lender on the existing Guarantor.

     11.02. Remedies. If an Event of Default occurs, Lender may, at its option, and without prior notice or demand, do and hereby is authorized and empowered by Borrower so to do, any or all of the following:

          (a) Acceleration. Lender may declare the entire unpaid principal balance of the Loan to be immediately due and payable.

          (b) Recovery of Unpaid Sums. Lender may, from time to time, take legal action to recover any sums as the same become due, without regard to whether or not the Loan shall be accelerated and without prejudice to Lender’s right thereafter to accelerate the Loan or exercise any other remedy, if such sums remain uncollected.

          (c) Foreclosure. Lender may institute proceedings, judicial or otherwise, for the complete or partial foreclosure of the Security Instrument or the complete or partial sale of the Property under power of sale or under any applicable provision of law. In connection with any such proceeding, Lender may sell the Property as an entirety or in parcels or units and at such times and place (at one or more sales) and upon such terms as it may deem expedient unless prohibited by law from so acting.

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          (d) Receiver. Lender may apply for the appointment of a receiver, trustee, liquidator or conservator of the Property, without regard for the adequacy of the security for the Debt or a showing of insolvency, fraud or mismanagement on the part of Borrower. Any receiver or other party so appointed has all powers permitted by law which may be necessary or usual in such cases for the protection, possession, control, management and operation of the Property. Borrower hereby consents, to the extent permitted under applicable law, to the appointment of a receiver or trustee of the Property upon Lender’s request if an Event of Default has occurred. At Lender’s option, such receiver or trustee shall serve without any requirement of posting a bond.

          (e) Recovery of Possession. Lender may enter into or upon the Property, either personally or by its agents, and dispossess and exclude Borrower and its agents and servants therefrom (without liability for trespass, damages or otherwise), and take possession of all books, records and accounts relating to the Property, and Borrower agrees to surrender possession of the Property and all Personal Property, including without limitation, all documents, books, records and accounts relating to the Property, to Lender upon demand. As a mortgagee-in-possession of the Property, Lender shall have all rights and remedies permitted by law or in equity to a mortgagee-in-possession, including, without limitation, the right to charge Borrower the fair and reasonable rental value for Borrower’s use and occupation of any part of the Property that may be occupied or used by Borrower and the right to exercise all rights and powers of Borrower with respect to the Property, whether in the name of Borrower or otherwise (including, without limitation, the right to make, cancel, enforce or modify Leases, obtain and evict tenants, and demand, sue for, collect and receive all Rents of the Property).

          (f) UCC Remedies. Lender may exercise with respect to the Property, each right, power or remedy granted to a secured party under the UCC, including, without limitation, (i) the right to take possession of the Property and to take such other measures as Lender deems necessary for the care, protection and preservation of the Property, and (ii) the right to require that Borrower, at its expense, assemble the Property and make it available to Lender at a convenient place acceptable to Lender. Any notice of sale, disposition or other intended action by Lender with respect to the Property sent to Borrower in accordance with the provisions hereof at least ten (10) days prior to such action, shall constitute reasonable notice to Borrower. Lender shall not have any obligation to clean-up or otherwise prepare the Property for sale.

          (g) Apply Funds in Reserve Accounts. Lender may apply any funds then deposited in any or all of the Reserve Accounts and or otherwise held in escrow or reserve by Lender under the Loan Documents (including without limitation Restoration Proceeds) as a credit on to Loan, in such priority and proportion as Lender deems appropriate.

          (h) Insurance Policies. Lender may surrender any or all insurance policies maintained as required by this Loan Agreement, collect the unearned Insurance Premiums and apply such sums as a credit on the Loan, in such priority and proportion as Lender deems appropriate. Borrower hereby appoints Lender its attorney-in-fact with full power of substitution (and which shall be deemed to be coupled with an interest and irrevocable until the Loan is paid and the Security Instrument is discharged of record, with Borrower hereby ratifying all that its said attorney shall do by virtue thereof) to surrender such insurance policies and collect such Insurance Premiums.

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          (i) Application of Letter of Credit. Lender may draw on the Letter of Credit, without prior notice to Borrower, and apply such amounts as a credit on the Loan, in such priority and proportion as Lender deems appropriate.

          (j) Protection of Lender’s Security and Right to Cure. Lender may, without releasing Borrower from any obligation hereunder or waiving the Event of Default, perform the obligation which Borrower failed to perform in such manner and to such extent as Lender deems necessary to protect and preserve the Property and Lender’s interest therein, including without limitation (i) appearing in, defending or bringing any action or proceeding with respect to the Property, in Borrower’s name or otherwise; (ii) making repairs to the Property or completing improvements or repairs in progress; (iii) hiring and paying legal counsel, accountants, inspectors or consultants; and (iv) paying amounts which Borrower failed to pay. Amounts disbursed by Lender shall be added to the Loan, shall be immediately due and payable, and shall bear interest at the Default Rate from the date of disbursement until paid in full.

          (k) Violation of Laws. If the Property is not, in any material respect, in compliance with all Requirements of Laws, Lender may impose additional requirements upon Borrower in connection with such Event of Default including, without limitation, monetary reserves or financial equivalents.

          (l) Purchase of Rate Cap by Lender. If the Loan has been accelerated following an Event of Default and the Rate Cap obtained by Borrower expires prior to Lender’s receipt of full payment of the Loan or completion of a foreclosure action (or acceptance of a deed-in-lieu of foreclosure), Lender may purchase, at Borrower’s expense, a Rate Cap upon such terms as Lender deems necessary to guard against fluctuations of the interest rate of the Loan until the Loan is paid in full or a foreclosure action (or acceptance of a deed-in-lieu of foreclosure) is completed.

     11.03. Cumulative Remedies; No Waiver; Other Security. Lender’s remedies under this Loan Agreement are cumulative (whether set forth in this Article 11 or in any other section of this Loan Agreement) with those in the other Loan Documents and otherwise permitted by law or in equity and, to the extent permitted by applicable law, may be exercised independently, concurrently or successively in Lender’s sole discretion and as often as occasion _herefore shall arise. Lender’s delay or failure to accelerate the Loan or exercise any other remedy upon the occurrence of an Event of Default shall not be deemed a waiver of such right as remedy. No partial exercise by Lender of any right or remedy will preclude further exercise thereof. Notice or demand given to Borrower in any instance will not entitle Borrower to notice or demand in similar or other circumstances (except where notice is expressly required by this Loan Agreement to be given) nor constitute Lender’s waiver of its right to take any future action in any circumstance without notice or demand. Lender may release security for the Loan, may release any party liable _herefore, may grant extensions, renewals or forbearances with respect thereto, may accept a partial or past due payment or grant other indulgences, or may apply any other security held by it to payment of the Loan, in each case without prejudice to its rights under the Loan Documents and without such action being deemed an accord and satisfaction or a reinstatement of the Loan. Lender will not be deemed as a consequence of its delay or failure to act, or any forbearance granted, to have waived or be estopped from exercising any of its rights or remedies.

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     11.04. Enforcement Costs. Borrower shall pay, on written demand by Lender all costs incurred by Lender in (a) collecting any amount payable under the Loan Documents, or (b) enforcing its rights under the Loan Documents, in each case whether or not legal proceedings are commenced or whether legal action is pursued to final judgment. Such fees and expenses include, without limitation, reasonable fees for attorneys, paralegals, law clerks and other hired professionals, a reasonable assessment of the cost of services performed by Lender’s default management staff, court fees, costs incurred in connection with pre-trial, trial and appellate level proceedings, including discovery, and costs incurred in post-judgment collection efforts or in any bankruptcy proceeding. Amounts incurred by Lender shall be added to principal, shall be immediately due and payable, shall bear interest at the Default Rate from the date of disbursement until paid in full, if not paid in full within five (5) days after Lender’s written demand for payment, and such amounts shall be secured by the Security Instrument and other collateral given to secure the Loan.

     11.05. Application of Proceeds. The proceeds from disposition of the Property shall be applied by Lender as a credit to the Loan and to recovery or reimbursement of the costs of enforcement (contemplated by Section 11.04 above) in such priority and proportion as Lender determines appropriate.

     11.06. Cross-Default; Cross-Collateralization; Waiver of Marshalling of Assets.

          (a) Borrower acknowledges that Lender has made the Loan to Borrower upon the security of its collective interest in the Property and in reliance upon the aggregate of the Property taken together being of greater value as collateral security than the sum of each Individual Property taken separately. Borrower agrees that the Security Instruments are and will be cross-collateralized and cross-defaulted with each other so that (i) an Event of Default under any of the Security Instruments shall constitute an Event of Default under each of the other Security Instrument which secure the Note; (ii) an Event of Default under the Note or this Agreement shall constitute an Event of Default under each Security Instrument; (iii) each Security Instrument shall constitute security for the Note as if a single blanket lien were placed on all of the Properties as security for the Note; and (iv) such cross-collateralization shall in no event be deemed to constitute a fraudulent conveyance.

          (b) To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, or to a sale in inverse order of alienation in the event of foreclosure of all or any of the Security Instruments, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever. In addition, to the extent permitted by applicable law. Borrower, for itself and its successors and assigns, waives in the event of foreclosure of any or all of the Security Instruments, any equitable right otherwise available to Borrower which would require the separate sale of the Property or require Lender to exhaust its remedies against any Individual Property or any combination of the Property before proceeding against any other

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Credit Agreement
Macquarie Infrastructure Company Inc.

Individual Property or combination of Property; and further in the event of such foreclosure Borrower does hereby expressly consents to and authorizes, at the option of Lender, the foreclosure and sale either separately or together of any combination of the Property.

ARTICLE 12

NONRECOURSE — LIMITATIONS ON PERSONAL LIABILITY

     12.01. Nonrecourse Obligation. Except as otherwise provided in this Article 12, in Section 15.05 or as expressly stated in any of the other Loan Documents, Lender shall enforce the liability of Borrower to perform and observe the obligations contained in this Loan Agreement and in each other Loan Document only against the Property and other collateral given by Borrower as security for payment of the Loan and performance of Borrower’s obligations under the Loan Documents and not against Borrower or any of Borrower’s principals, directors, officers or employees. Without limiting the foregoing, this Article 12 is not applicable to the Environmental Indemnity or to any Guaranty executed in connection herewith.

     12.02. Full Personal Liability. Section 12.01 above shall BECOME NULL AND VOID and the Loan FULLY RECOURSE to Borrower and Guarantor if: (a) the Property or any part thereof becomes an asset in a voluntary bankruptcy or other voluntary insolvency proceeding; (b) an involuntary bankruptcy or other involuntary insolvency proceeding is commenced against Borrower or any Equity Owner (by a party other than Lender) but only if Borrower or such Equity Owner has failed to use commercially reasonable efforts to cause such proceeding to be dismissed or has consented to such proceeding; (c) if Borrower, any Equity Owner, Guarantor or any Affiliate or agent of Borrower, any Equity Owner or any Guarantor has acted in concert with, colluded or conspired with any party to cause the filing of any involuntary bankruptcy or other involuntary insolvency proceeding; or (d) Borrower fails to comply with the financial reporting and budget approval covenants of Section 9.11.

     12.03. Personal Liability for Certain Losses. Section 12.01 above SHALL NOT APPLY and Borrower shall be PERSONALLY LIABLE for all losses, claims, expenses or other liabilities incurred by Lender arising out of, or attributable to, any of the following:

          (a) Fraud or intentional misrepresentation or failure to disclose a material fact by Borrower or any other agent or representative of Borrower in connection with (i) the application for the Loan or the execution and delivery of the Loan Documents or making of the Loan, (ii) any financial statement or any other material certificate, report or document required to be furnished by Borrower to Lender herewith or hereafter, or (iii) any request for Lender’s consent made during the term of the Loan;

          (b) A violation of any provision of Article 10 (captioned: No Transfers or Encumbrances; Due On Sale);

          (c) Any material breach by Borrower or the Equity Owner of Article 7 (captioned; Single Purpose Entity Requirements).

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          (d) Failure by Borrower Equity Owner or the Equity Owner to comply with any of the provisions of Section 9.13 (captioned: Existence, Change of Name or Location as a Registered Organization) of the Loan Agreement;

          (e) Misapplication or misappropriation of (i) insurance proceeds or condemnation awards payable to Lender in accordance with the Loan Agreement; (ii) Rent or other Operating Income received by Borrower, (iii) Rent paid in advance by tenants under the Leases; (iv) tenant security deposits or other refundable deposits held by or on behalf of Borrower in connection with Leases; or (v) collateral, including but not limited to (x) removal of all or any portion of the Personal Property in violation of the Loan Documents and (y) fees or commissions paid by Borrower, after the occurrence and during the continuance of an Event of Default, to any Guarantor, any Affiliate, or any principal of Borrower, any Guarantor or Affiliate, in violation of the Loan Documents;

          (f) Damage to or loss of all or any part of the Property as a result of intentional, affirmative waste by Borrower, its agents or the affiliates of Borrower or its agents;

          (g) Criminal acts or gross negligence of Borrower, any principal of Borrower, or any Affiliate resulting in the seizure, forfeiture or loss of all or any part of the Property;

          (h) Failure by Borrower to purchase and maintain a Rate Cap or Interest Rate Swap in accordance with the terms of this Loan Agreement;

          (i) All amounts contemplated under Section 11.04; and any real estate or other transfer tax incurred to transfer title to the Property in connection with any foreclosure, deed in lieu of foreclosure or non-judicial sale of the Property following the occurrence of an Event of Default

          (j) All amounts expended by Lender to protect its interest in the Property or other collateral;

          (k) All amounts expended by Lender for any real estate or other transfer tax incurred to transfer title to the Property in connection with any foreclosure, deed in lieu of foreclosure or non-judicial sale of the Property following the occurrence of an Event of Default; and

          (l) any liability arising under the Environmental Indemnity.

     12.04. No Impairment. Nothing contained in this Article 12 shall impair, release or otherwise adversely affect: (a) any lien, assignment or security interest created by the Loan Documents; (b) any indemnity, personal guaranty, master lease or similar instrument now or hereafter made in connection with the Loan (including, without limitation, the Environmental Indemnity and Guaranty); (c) Lender’s right to have a receiver or trustee appointed for the Property; (d) Lender’s right to name Borrower as a defendant in any foreclosure action or judicial sale under the Security Instrument or other Loan Documents or in any action for specific performance or otherwise to enable Lender to enforce obligations under the Loan Documents or to realize upon Lender’s interest in any collateral given to Lender as security for the Loan; or (e) Lender’s right to a judgment on the Note against Borrower if necessary (i) to enforce any

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guaranty or indemnity provided in connection with the Note, (ii) preserve or enforce its rights or remedies against any Individual Property or (iii) or to obtain any insurance proceeds or condemnation awards to which Lender would otherwise be entitled under this Loan Agreement; provided, however, that any judgment obtained against Borrower shall, except to the extent otherwise expressly provided in this Article 12, be enforceable against Borrower only to the extent of Borrower’s interest in the Property and other collateral securing payment of the Loan and performance of Borrower’s obligations under the Loan Documents.

     12.05. No Waiver of Certain Rights. Nothing contained in this Article 12 shall be deemed a waiver of any right which Lender may have under the Bankruptcy Code or applicable law to protect and pursue its rights under the Loan Documents including, without limitation, its rights under Sections 506(a) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Loan or to require that the collateral continues to secure all of the Obligations of Borrower to Lender under Loan Documents.

ARTICLE 13

INDEMNIFICATION

     13.01. Indemnification Against Claims. Borrower shall indemnify, defend, release and hold harmless Lender and each of the other Indemnified Parties from and against any and all Losses (other than, with respect to any Individual Property, those Losses arising solely from a state of facts that first came into existence after the date that Lender acquired title to such Individual Property by foreclosure or deed in lieu of foreclosure) directly or indirectly arising out of, or in any way relating to, or as a result of (a) accident, injury to or death of Persons, or loss of, or damage to, property occurring in, on or with respect to the Property or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways or otherwise arising with respect to the use of the Property; (b) failure of the Property to be in compliance with any Requirements of Law; (c) breach or default of Borrower’s representations or obligations under Sections 8.27, 8.28 or 9.16 of this Loan Agreement; (d) any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge the lessor’s agreements contained in any Lease; (e) breach or default under the ERISA obligations set forth in Sections 8.26 and 9.15 of this Loan Agreement (including, without limitation, legal fees and costs incurred in the investigations, defense and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole discretion); or (f) any claim, litigation, investigation or proceeding commenced or threatened relating to any of the foregoing, whether or not Indemnified Party is a party thereto; provided, however, any such indemnity shall not apply to any Indemnified Party to the extent any such Losses arise from Indemnified Party’s gross negligence or willful misconduct (collectively, “Indemnified Claims”).

     13.02. Duty to Defend. If an Indemnified Party claims indemnification under this Loan Agreement, the Indemnified Party shall promptly notify Borrower of the Indemnified Claim. After notice by any Indemnified Party, Borrower shall defend such Indemnified Party against such Indemnified Claim (if requested by any Indemnified Party, in the name of the Indemnified

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Party) by attorneys and other professionals reasonably approved, in writing, by the Indemnified Party. Notwithstanding the foregoing, any Indemnified Party may, in its sole discretion and at the expense of Borrower, engage its own attorneys and other professionals to defend or assist it if such Indemnified Party reasonably determines that the strategic approach of the defense proposed or conducted by Borrower is unsatisfactory or that a conflict of interest exists between any of the parties represented by Borrower’s counsel in such action or proceeding. Within five (5) Business Days of Indemnified Party’s demand, Borrower shall pay or, in the sole discretion of the Indemnified Party, reimburse, the Indemnified Party for the payment of Indemnified Party’s costs and expenses (including, without limitation, reasonable attorney fees, engineer fees, environmental consultant fees, laboratory fees and the fees of other professionals in connection therewith) in connection with the Indemnified Claim. Payment not made timely shall bear interest at the Default Rate until paid in full and payment of such amounts shall be secured by the Security Instrument and other collateral given to secure the Loan.

ARTICLE 14

SUBROGATION; NO USURY VIOLATIONS

     14.01. Subrogation. If the Loan is used to pay, satisfy, discharge, extend or renew any indebtedness secured by a pre-existing mortgage, deed of trust or other Lien encumbering the Property, then to the extent of funds so used, Lender shall automatically, and without further action on its part, be subrogated to all rights, including lien priority, held by the holder of the indebtedness secured by such prior Lien, whether or not the prior Lien is released, and such former rights are not waived but rather are continued in full force and effect in favor of Lender and are merged with the Liens created in favor of Lender as security for payment of the Loan and performance of the Obligations.

     14.02. No Usury. At no time is Borrower required to pay interest on the Loan or on any other payment due hereunder or under any of the other Loan Documents (or to make any other payment deemed by law or by a court of competent jurisdiction to be interest) at a rate which would subject Lender either to civil or criminal liability as a result of being in excess of the maximum interest rate which Borrower is permitted by applicable law to pay. If interest (or such other amount deemed to be interest) paid or payable by Borrower is deemed to exceed such maximum rate, then the amount to be paid immediately shall be reduced to such maximum rate and thereafter computed at such maximum rate. All previous payments in excess of such maximum rate shall be deemed to have been payments of principal (in inverse order of maturity) and not on account of interest due hereunder. For purposes of determining whether any applicable usury law has been violated, all payments deemed by law or a court of competent jurisdiction to be interest shall, to the extent permitted by applicable law, be deemed to be amortized, prorated, allocated and spread over the full term of the Loan in such manner so that interest is computed at a rate throughout the full term of the Loan which does not exceed the maximum lawful rate of interest.

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ARTICLE 15

SALE OR SECURITIZATION OF LOAN

     15.01. Splitting the Note. Lender has the right from time to time to sever the Note into one or more separate promissory notes in such denominations as Lender determines in its sole discretion (including the creation of a mezzanine loan secured by a collateral assignment of the Equity Interests in Borrower and Equity Owner), which promissory notes may be included in separate sales or securitizations undertaken by Lender. In conjunction with any such action, Lender may redefine the interest rate; provided, however, that if Lender redefines the interest rate, the weighted average of the interest rates contained in the severed promissory notes taken in the aggregate shall equal the Applicable Interest Rate. Subject to the foregoing, each severed promissory note, and the Loan evidenced thereby, shall be upon all of the terms and provisions contained in this Loan Agreement and the Loan Documents which continue in full force and effect, except that Lender may allocate specific collateral given for the Loan as security for performance of specific promissory notes, in each case with or without cross–default provisions. Borrower, at Borrower’s expense, agrees to cooperate with all reasonable requests of Lender to accomplish the foregoing, including, without limitation, execution and prompt delivery to Lender of a severance agreement and such other documents as Lender shall reasonably require. Borrower hereby appoints Lender its attorney-in-fact with full power of substitution (and which shall be deemed to be coupled with an interest and irrevocable until the Loan is paid and the Security Instrument is discharged of record, with Borrower hereby ratifying all that its said attorney shall do by virtue thereof) to make and execute all documents necessary or desirable to effect the aforesaid severance; provided, however, Lender shall not make or execute any such documents under such power until five (5) days after written notice has been given to Borrower by Lender of Lender’s intent to exercise its rights under such power. Borrower’s failure to deliver any of the documents requested by Lender hereunder for a period of ten (10) Business Days after such notice by Lender shall, at Lender’s option, constitute an Event of Default hereunder. Notwithstanding the foregoing, any costs or expenses incurred by Lender in connection with Borrower’s cooperation with any restructuring of the Loan shall be borne solely by Lender, to the extent that such costs exceed $5,000.

     15.02. Lender’s Rights to Sell or Securitize. Borrower acknowledges that Lender, and each successor to Lender’s interest, may (without prior notice to Borrower or Borrower’s prior consent), sell or grant participations in the Loan (or any part thereof), sell or subcontract the servicing rights related to the Loan, Securitize the Loan or include the Loan as part of a Securitization and, in connection therewith, assign Lender’s rights hereunder to a securitization trustee. Borrower, at its expense, agrees to cooperate with all reasonable requests of Lender in connection with any of the foregoing including, without limitation, (i) providing additional information regarding the Property, Borrower, or any of its Affiliates (such information to include additional appraisals, environmental reports, engineering reports and similar due diligence materials and updates, and verifications and consents with respect to such materials that were delivered at closing), (ii) delivering additional landlord and/or tenant estoppel letters, subordination agreements or similar agreements (subject, in all instances, to the terms and conditions of the applicable leases), (iii) participating in meetings and presentations (including the senior management of Borrower) to the Rating Agencies and prospective investors (in each

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case as required by the Rating Agencies or prospective investors), (iv) executing any financing statements or other documents deemed necessary by Lender or its transferee to create, perfect or preserve the rights and interest to be acquired by such transferee, (v) provide any updated financial information with appropriate verification through auditors letters, (vi) deliver revised organizational documents and counsel opinions satisfactory to the Rating Agencies, (viii) execute amendments to the Loan Documents, and (ix) review information contained in a preliminary or final private placement memorandum, prospectus, prospectus supplements or other disclosure document, providing a mortgagor estoppel certificate and such other information about Borrower, Equity Owner, any Guarantor or the Property as Lender may require for Lender’s offering materials provided that no such modification, revision, additional documents, or other action in connection with such cooperation shall materially increase the obligations or materially decrease the rights of Borrower pursuant to the Loan Documents. At the request of Lender, Borrower shall make such representations and warranties as of the date of the securitization as are customary in securitization transactions involving properties of the same nature as the subject properties. Notwithstanding the foregoing, Borrower’s obligations to obtain landlord estoppel letters with respect to the Ground Lease shall be limited as follows: Borrower shall not be required to obtain estoppels for those Individual Properties listed on Schedule 15.02.1, shall be required only to use commercially reasonable efforts to obtain estoppels for those Individual Properties listed on Schedule 15.02.2, and for all other Individual Properties shall obtain estoppels representing at least 80% of the Loan amount allocated to all such Individual Properties. Notwithstanding the foregoing, any costs or expenses incurred by Lender in connection with Borrower’s cooperation with any restructuring of the Loan shall be borne solely by Lender, to the extent that such costs exceed $5,000.

     15.03. Dissemination of Information. Borrower acknowledges that Lender may provide to third parties with an existing or prospective interest in the servicing, enforcement, evaluation, performance, ownership, purchase, participation or Securitization of the Loan, including, without limitation, any Rating Agency and any entity maintaining databases on the underwriting and performance of commercial mortgage loans, any and all information which Lender now has or may hereafter acquire relating to the Loan, the Property, Borrower, Equity Owner or any Guarantor, as Lender determines necessary or desirable and that such information may be included in disclosure documents in connection with a Securitization or syndication of participation interests, including, without limitation, a prospectus, prospectus supplement, offering memorandum, private placement memorandum or similar document (each, a “Disclosure Document”) and also may be included in any filing with the Securities and Exchange Commission pursuant to the Securities Act or the Securities Exchange Act. To the fullest extent permitted under applicable law, Borrower irrevocably waives all rights, if any, to prohibit such disclosure, including, without limitation, any right of privacy.

     15.04. Reserve Accounts. If the Loan is made a part of a Securitization, Borrower acknowledges that all funds held by Lender in the Reserve Accounts in accordance with this Loan Agreement or the other Loan Documents shall be deposited in “eligible accounts” at “eligible institutions” or invested in “permitted investments” as then defined and required by the Rating Agencies, and this Loan Agreement will automatically be amended to so provide.

     15.05. Securitization Indemnification. Each of Borrower and Guarantor agrees to provide in connection with each Disclosure Document provided by Lender to such parties, an

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indemnification certificate: (a) certifying that Borrower and such Guarantor have reviewed such Disclosure Document, including, without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mortgage Loan,” or similar sections, and all sections relating to Borrower, Equity Owner, Guarantors, Property Manager, if any, their respective Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and that, to the best of such indemnitor’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; (b) indemnifying Lender (and for purposes of this Section 15.05, Lender shall include its officers and directors) and the Affiliate of Lender that (i) has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act (collectively, “Issuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Securities Exchange Act (collectively, “Underwriter Group”) for any Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such section or arise out of are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections necessary in order to make the statements in such sections or in light of the circumstances under which they were made, not misleading (collectively, “Securities Liabilities”); and (c) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Issuer Group and the Underwriter Group in investigating or defending the Securities Liabilities; provided, however, that indemnitor will be liable under clauses (b) or (c) above only if and to the extent that (a) such misstatement or omission is material and (b) Borrower, each Guarantor and their respective Affiliates knew, or reasonably should have known after due inquiry, at the time that Borrower, each Guarantor and their respective Affiliates approved the Disclosure Document, that the Disclosure Document contained a material misstatement or omission.. This indemnity is in addition to any liability which Borrower may otherwise have and shall be effective whether or not an indemnification certificate described in (a) above is provided and shall be applicable based on information previously provided by or on behalf of Borrower or a Guarantor if the indemnification certificate is not provided.

     15.06. Additional Financial Information for Large Loans.

          (a) If required by law in connection with a Securitization, Borrower, at Borrower’s expense, shall provide Lender with all financial statements and other financial, statistical or operating information, to the extent required pursuant to Regulation S-X of the Securities Act or any other Requirements of Law in connection with any Disclosure Document

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or Securities Filing. All financial statements provided by Borrower pursuant to this Section shall be prepared in accordance with GAAP and shall meet the requirements of Regulation S-X and other applicable Requirements of Law. All financial statements reporting for a full operating year (i) shall be audited by independent accountants in accordance with generally accepted auditing standards, Regulation S-X and all other applicable Requirements of Law, (ii) shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-X and all other applicable Requirements of Law, and (iii) shall be accompanied by a manually executed written consent of the independent accountants, acceptable to Lender, that authorizes the inclusion of such financial statements in any Disclosure Document or Securities Filing and permits the use of the name of such independent accountants and reference to such independent accountants as “experts” in any Disclosure Document and Securities Filing, all of which shall be provided, at Borrower’s expense, at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by the chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.

          (b) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements or financial, statistical or operating information as Lender determines to be required pursuant to Regulation S-X or other legal requirements in connection with any Disclosure Document or any filing under or pursuant to the Securities Exchange Act in connection with or relating to a Securitization.

          (c) If Lender determines in connection with a Securitization, that the financial statements required in order to comply with Regulation S-X or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may request, and Borrower shall promptly provide, such combination of Acquired Property Statement and/or Large Loan Statements or such other financial statements as Lender determines to be necessary or appropriate for such compliance

ARTICLE 16

BORROW FURTHER ACTS AND ASSURANCES PAYMENT OF SECURITY RECORDING CHARGES

     16.01. Further Acts. Borrower, at Borrower’s expense, agrees to take such further actions and execute such further documents as Lender reasonably may request to carry out the intent of the Loan Documents or to establish and protect the rights and remedies created or intended to be created in favor of Lender under the Loan Documents or to protect the value of the Property and Lender’s security interest or liens therein. Borrower agrees to pay all filing, registration or recording fees or taxes, and all expenses incident to the preparation, execution, acknowledgement, or filing/recording of the Security Instrument, the Assignment of Leases and Rents, financing statements or any such instrument of further assurance, except where prohibited by law so to do.

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     16.02. Replacement Documents. Upon receipt of an affidavit from an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record, and, in the case of any such mutilation, upon surrender and cancellation of such document, Borrower will issue a replacement original in lieu thereof in the same original principal amount and otherwise on the same terms and conditions as the original.

     16.03. Borrower Estoppel Certificates.

          (a) Borrower Information. Borrower, within ten (10) days of Lender’s written request, ()but in any event not more than four (4) times annually, except following an Event of Default, in which case such limitation shall not apply), shall furnish to Lender or Lender’s designee a statement, duly acknowledged and certified by a Responsible Officer, setting forth: (i) the Loan Amount and the amount of principal advanced as of the certificate date; (ii) the unpaid principal amount of the Loan; (iii) the calculation of the rate of interest accruing on the Loan, including the then Applicable Interest Rate; (iv) the Payment Due Date, the Maturity Date, any unexercised rights to extend the Maturity Date and any exercised extension of the Maturity Date, if any; (v) the date installments of interest and/or principal were last paid; (vi) that, except as provided in such statement, no defaults or events exists which would be an Event of Default with the giving of any applicable notice or the expiration of any applicable grace or cure period or both; (vii) that the Loan Documents are valid, legal and binding obligations and have not been modified or, if modified, giving the particulars of such modification; (viii) whether any offsets or defenses exist against Borrower’s obligation to pay the Loan and perform the Obligations and, if any are alleged to exist, a detailed description thereof; (ix) that all Leases are in full force and effect, and for Leases other than residential Leases, have not been modified or if modified, setting forth all modifications; (x) if requested, a current Rent Roll for the Property, (xi) the date to which Rents under the Leases have been paid; (xii) whether or not, to the best knowledge of Borrower, any of the tenants under the Leases are in default under the Leases, and, if any of the tenants are in default, setting forth the specific nature of all such defaults; and (xiii) such other matters reasonably requested by Lender and reasonably related to the Leases or the Property.

          (b) Tenant Estoppels. Subject to the terms and conditions of the applicable leases, Borrower shall deliver to Lender, promptly upon Lender’s written request (but in any event no later than fifteen (15) Business Days following Lender’s request, but in any event not more often than twice annually, except following an Event of Default, in which case such limitation shall not apply), duly executed estoppel certificates from tenants identified by Lender which are paying $50,000 or more annually to Borrower under their respective leases, attesting to such facts regarding a tenant’s non-residential Lease as Lender may require, including, without limitation: (i) that the Lease is in full force and effect with no defaults thereunder on the part of any party, and no event exists that would be an event of default thereunder with giving of any applicable notice or the expiration of any applicable grace or cure period or both; (ii), that none of the Rents have been paid more than one month in advance, except as a security deposit; and (iii) that the tenant claims no defense or offset against the full and timely performance of its obligations under the Lease.

          (c) Lender Statement of Loan Information. After written request by Borrower not more than twice annually, Lender shall furnish Borrower a statement setting forth: (i) the original Loan Amount and the amount of principal advanced by Lender as of the certificate date;

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(ii) the unpaid principal amount of the Loan; (iii) the rate of interest accruing on the Loan, including the then Applicable Interest Rate; and (iv) the balance of amounts held in the Reserve Accounts, if any.

     16.04. Recording Costs. Except as otherwise required by law, Borrower will pay all transfer taxes, filing, registration, recording or similar fees, and all expenses incident to the preparation, execution, acknowledgment, recording, filing and/or release or discharge of the Note, the Security Instrument and each of the other Loan Documents, and all modifications, extensions, consolidations, or restatements of the same, except where prohibited by law so to do.

     16.05. Publicity. Borrower acknowledges and agrees that Lender may release publicity articles concerning the financing or servicing of the Loan, subject, however, to the terms of any confidentiality agreement between Borrower and Lender.

ARTICLE 17

LENDER CONSENT

     17.01. No Joint Venture; No Third Party Beneficiaries. Borrower and Lender intend that the relationships created hereunder and under each of the other Loan Documents are solely those of borrower and lender. Nothing herein or in any of the other Loan Documents is intended to create, nor shall it be construed as creating anything but a debtor-creditor relationship between Borrower and Lender nor shall they be deemed to confer on anyone other than Lender, and its successors and assigns, any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein.

     17.02. Lender Approval. Wherever pursuant to a Loan Document (a) Lender exercises any right to approve or disapprove or to grant or withhold consent; (b) any arrangement or term is to be satisfactory to Lender; (c) a waiver is requested from Lender, or (d) any other decision is to be made by Lender, all shall be made in Lender’s sole discretion, unless expressly provided otherwise in such Loan Document. By approving or granting consent, accepting performance from Borrower, or releasing funds from a Reserve Account, Lender shall not be deemed to have warranted or affirmed the sufficiency, completeness, legality or effectiveness of the subject matter or of Borrower’s compliance with Requirements of Laws. Notwithstanding any provision under the Loan Documents which provide Lender the opportunity to approve or disapprove any action or decision by Borrower, Lender is not undertaking the performance of any obligation of Borrower under any of the Loan Documents or any of the other documents and agreements in connection with this transaction (including, without limitation, the Leases).

     17.03. Performance at Borrower’s Expense. Borrower acknowledges and agrees that in connection with each request by Borrower to: (a) modify or waive any provision of the Loan Documents; (b) release or substitute Property; (c) obtain Lender’s approval or consent whenever required by the Loan Documents including, without limitation, review of a Transfer request, matters affecting a Major Lease, improvements or alterations to the Property, and easements or other additions to Permitted Encumbrances; or (d) provide a subordination, non-disturbance and attornment agreement, Lender reserves the right to collect a review or processing fee from

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Borrower based on a reasonable estimate of the administrative costs which Lender will incur to connection therewith. Borrower agrees to pay such fee along with all reasonable legal fees and expenses incurred by Lender and the fees required for a Rating Confirmation or approval from the trustee if the Loan has been Securitized, as applicable, irrespective of whether the matter is approved, denied or withdrawn (provided, however, that Lender shall only charge review or processing fees which Lender typically and customarily charges to similarly situated Borrowers). Any amounts payable by Borrower hereunder, shall be deemed a part of the Loan, shall be secured by this Loan Agreement and shall bear interest at the Default Rate if not fully paid within ten (10) days of written demand for payment.

     17.04. Non-Reliance. Borrower agrees that any diligence or investigation performed by or on behalf of Lender in underwriting or servicing the Loan (including, without limitation, information obtained about the Property the Borrower or its equity investors or Affiliates) does not in any respect limit or excuse any of Borrower’s representations, warranties, covenants or agreements set forth in this Loan Agreement or any of the other Loan Documents. The fact that Lender has performed diligence does not affect Lender’s ability or right to rely fully upon the representations, warranties, covenants and agreements made by Borrower in the Loan Documents or to pursue any available remedy for a breach thereof. If Lender delivers or has delivered to Borrower (or to Borrower’s agents, equity investors or representatives) any information obtained or developed by Lender relating to the Loan, the Property or Borrower, Borrower acknowledges and agrees that such information has been delivered for informational purposes only and Lender has no liability of responsibility to Borrower with respect to such information, including, without limitation, the completeness or accuracy of any such information. No due diligence consultant engaged by Lender is or shall be deemed an agent of Lender.

ARTICLE 18

MISCELLANEOUS PROVISIONS

     18.01. Notices. All notices and other communications under this Loan Agreement are to be in writing and addressed to each party as set forth below. Default or demand notices shall be deemed to have been duly given upon the earlier of: (a) actual receipt; (b) one (1) Business Day after having been timely deposited for overnight delivery, fee prepaid, with a reputable overnight courier service, having a reliable tracking system; or (c) three (3) Business Days after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by certified mail, postage prepaid, return receipt requested, and in the case of clause (b) and (c) irrespective of whether delivery is accepted. A new address for notice may be established by written notice to the other; provided, however, that no change of address will be effective until written notice thereof actually is received by the party to whom such address change is sent. Notice to outside counsel or parties other than the named Borrower and Lender, now or hereafter designated by a party as entitled to notice, are for convenience only and are not required for notice to a party to be effective in accordance with this section. Notice addresses are as follows:

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Address for Lender:	GMAC Commercial Mortgage Corporation
	200 Witmer Road
	Horsham, PA 19044
	Attn.: Servicing Accounting — Manager
	Fax: 215-328-3478
	With required copies to:
	GMAC Commercial Mortgage Corporation
	200 Witmer Road
	Horsham, PA 19044
	Attn.: PLG Asset Manager
	Fax: 215-328-1190
and	GMAC Commercial Mortgage Bank
	6955 Union Park Center, Suite 330
	Midvale, UT 84047
	Attn: President
	Fax: 801-567-2681
and	Dechert LLP
	Bank of America Corporate Center
	100 North Tryon Street
	Suite 4000
	Charlotte, NC 28202
	Attn: Timothy J. Boyce
	Fax: 704-339-3101
Address for Borrower:	PCAA SP, LLC
	8225 Firestone Boulevard, Suite 502
	Downey, CA 90241
	Attn.: Gregory Andrews
	Fax: 562-287-1334
and	PCAA SP, LLC
	125 West 55th Street, 22nd Floor
	New York, NY 10019
	Attention: General Counsel
and	Dykema Gossett PLLC
	400 Renaissance Center
	Detroit, MI 48243
	Attn: Aleks Miziolek
	Fax: 313-568-6832

     18.02. Entire Agreement; Modifications; Time of Essence. This Loan Agreement, together with the other Loan Documents, contain the entire agreement between Borrower and Lender relating to the Loan and supersede and replace all prior discussions, representations,

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communications and agreements (oral or written). If the terms of any of the Loan Documents are in conflict, this Loan Agreement shall control over all of the other Loan Documents unless otherwise expressly provided in such other Loan Document. No Loan Document shall be modified, supplemented or terminated, nor any provision thereof waived, except by a written instrument signed by the party against whom enforcement thereof is sought, and then only to the extent expressly set forth in such writing. Time is of the essence with respect to all of Borrower’s obligations under the Loan Documents.

     18.03. Binding Effect; Joint and Several Obligations. This Loan Agreement and each of the other Loan Documents shall be binding upon and inure to the benefit of Borrower and Lender and their respective successors and assigns, whether by voluntary action of the parties or by operation of law. (The foregoing does not modify any conditions regulating Transfers.) If Borrower consists of more than one party, each shall be jointly and severally liable to perform the obligations of Borrower under the Loan Documents.

     18.04. Duplicate Originals; Counterparts. This Loan Agreement and each of the other Loan Documents may be executed in any number of duplicate originals, and each duplicate original shall be deemed to be an original. This Loan Agreement and each of the other Loan Documents (and each duplicate original) also may be executed in any number of counterparts, each of which shall be deemed an original and all of which together constitute a fully executed agreement even though all signatures do not appear on the same document.

     18.05. Unenforceable Provisions. Any provision of this Loan Agreement or any other Loan Documents which is determined by a court of competent jurisdiction or government body to be invalid, unenforceable or illegal shall be ineffective only to the extent of such holding and shall not affect the validity, enforceability or legality of any other provision, nor shall such determination apply in any circumstance or to any party not controlled by such determination.

     18.06. Governing Law. This Loan Agreement and each of the other Loan Documents shall be interpreted and enforced according to the laws of the State of New York (without giving effect to rules regarding conflict of laws), provided, however, that the creation, perfection and enforcement of the lien of each Security Instrument and Assignment of Leases and Rents shall instead be governed by the laws of the state in which the Individual Property encumbered by such Security Instrument and Assignment of Leases and Rents is located.

     18.07. Consent to Jurisdiction. Borrower hereby consents and submits to the exclusive jurisdiction and venue of any state or federal court sitting in the county and state of New York with respect to any legal action or proceeding arising with respect to the Loan Documents and waives all objections which it may have to such jurisdiction and venue. Nothing herein shall, however, preclude or prevent Lender from bringing actions against Borrower in any other jurisdiction as may be necessary to enforce or realize upon the security for the Loan provided in any of the Loan Documents.

     18.08. WAIVER OF TRIAL BY JURY. BORROWER AND LENDER EACH WAIVE THEIR RESPECTIVE RIGHT, TO THE FULLEST EXTENT PERMITTED BY LAW, AND AGREE NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS LOAN AGREEMENT, ANY OTHER LOAN

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DOCUMENT, OR THE RELATIONSHIP BETWEEN THE PARTIES AS BORROWER AND LENDER.

     18.09. Good Faith. All decisions, consents and approvals required of Lender under the Loan Documents, whether exercised in Lender’s sole discretion or in its reasonable discretion, shall be made in good faith by Lender.

ARTICLE 19

LIST OF DEFINED TERMS

     19.01. Definitions. The following words and phrases shall have the meaning specified below.

          “Affiliate” of any Person means (a) any other Person which, directly or indirectly, is in Control of, is Controlled by or is under common Control with, such Person; (b) any other Person who is a director or officer of (i) such Person, (ii) any subsidiary of such Person, or (iii) any Person described in clause (a) above; or (c) any corporation, limited liability company or partnership which has as a director any Person described in clause (b) above.

          “Allocated Loan Amount” means, for each Individual Property, the amount set forth on Exhibit E hereto.

          “Applicable Interest Rate” has the meaning set forth in Section 2.02(b) of this Loan Agreement. It is the interest rate from time to time accruing on the Loan.

          “Approved Budget” has the meaning set forth in Section 9.11(a)(v) of this Loan Agreement.

          “Assignment of Interest Rate Cap” means the Assignment of Interest Rate Cap Agreement dated as of the Closing Date from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of Borrower’s rights, title and interest in and to the Rate Cap Agreement.

          “Assignment of Leases and Rents” means the Assignment of Leases and Rents dated as of the Closing Date from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of Borrower’s right, title and interest in and to the Leases and the Rents with respect to the Property.

          “Assignment of Property Management Contract” means an Assignment of Property Management Contract and Subordination of Management Fees dated as of the Closing Date from Borrower, as assignor, to Lender, as assignee, and acknowledged by Property Manager or as applicable, any other Assignment of Property Management Contract executed pursuant to Section 9.14.

          “Bankruptcy Code” means the Bankruptcy Reform Act of 1978 codified as 11 U.S.C. §101 et. seq., and the regulations issued thereunder, both as hereafter modified from time to time.

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          “Borrower” has the meaning set forth in the introductory paragraph of this Loan Agreement.

          “Business Day” or “business day” means any day other than a Saturday, a Sunday, or days when Federal Banks located in the State of New York or Commonwealth of Pennsylvania are closed for a legal holiday or by government directive. When used with respect to the Interest Rate Adjustment Date, “Business Day” shall mean a day upon which United States dollar deposits may be dealt in on the London and New York City interbank markets and commercial banks and foreign exchange markets are open in London and New York City.

          “Capital Improvements/Deferred Maintenance” means the capital improvements to be made to the Property which are identified on Exhibit C hereto.

          “Cash Flow Available for Debt Service” means, for a specified period, (a) actual Operating Income normalized for the following twelve (12) month period less (b) actual Operating Expenses normalized for the following twelve (12) month period. Operating Income and Operating Expenses will be normalized (i) in accordance with the guidelines delivered to Borrower prior to the Closing Date, provided that Lender shall have the right, in its sole and absolute discretion, to amend or discontinue such guidelines from time to time, and (ii) based upon information available to Lender at the time of such calculation which are expected to effect such calculation, including but not limited to (x) termination of a Lease or a Parking Lease, (y) changes in Borrower’s obligations under any Ground Lease or (z) receipt of a current tax bill.

          “Casualty” means the occurrence of damage or destruction to the Property, or any part thereof, by fire, flood, vandalism, windstorm, hurricane, earthquake, acts of terrorism or any other casualty.

          “Closing Date” means October 3, 2005.

          “Compliance Certificate” means a compliance certificate substantially in the form of Exhibit A hereto, signed by a Responsible Officer of Borrower.

          “Condemnation” means the taking by any Governmental Authority of the Property or any part thereof through eminent domain or otherwise (including, without limitation, any transfer made in lieu of or in anticipation of the exercise of such taking).

          “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person whether through ownership of voting securities, beneficial interests, by contract or otherwise. The definition is to be construed to apply equally to variations of the word “Control” including “Controlled,” “Controlling” or “Controlled by.”

          “Data Delivery Failure” means, without reference to any cure period under Article 11, each instance that any of the following occur: (a) failure to deliver any of the reports, information, statements or other materials required under Section 9.11 after Lender giving of two written notices, the first written notice to provide Borrower with thirty (30) days to cure, Borrower’s failure and the second notice to provide Borrower with an additional thirty (30) days to cure, (b) failure to provide the Compliance Certificate within five (5) Business Days after

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written notice from Lender, or (c) failure to permit Lender or its representatives to inspect or copy books and records within two (2) Business Days of Lender’s written request. Notwithstanding anything in this Loan Agreement to the contrary, Borrower’s failure to deliver any of the reports, information, statements or other materials required under Section 9.11 on a timely basis shall be excused by, and the respective dates by which Borrower shall be required to provide such reports, information, statements or other materials shall be extended for the period of any delay caused by any Force Majeure Event.

          “Data Delivery Failure Fee” means an amount of Five Thousand Dollars ($5,000.00) for the first failure, Ten Thousand ($10,000.00) for the second failure, Twenty-five Thousand Dollars ($25,000.00) for the third failure and each failure thereafter.

          “Debt” means the aggregate of all principal and interest payments that accrue or are due and payable in accordance with the Loan Agreement, together with any other amounts due under the Loan Documents. The terms “Debt” and “Loan” have the same meaning whenever used in the Loan Documents.

          “Debt Service Coverage Ratio” means, as to a specific period, the ratio of (a) the Cash Flow Available for Debt Service, to (b) interest due and payable under the Note for that period.

          “Debt Service Coverage Constant Ratio” means, as to a specific period, the ratio obtained by dividing (a) the Cash Flow Available for Debt Service, by (b) a debt service payment calculated using the Loan Constant.

          “Default Rate” has the meaning set forth in Section 2.04(e) of this Loan Agreement.

          “Disbursement Request” means a written request substantially in the form of Exhibit B from Borrower delivered to Lender, signed by a Responsible Officer of Borrower and requesting Lender to disburse funds from a Reserve Account. Each Disbursement Request shall describe in reasonable detail the use of the funds requested by the Disbursement Request and shall have attached to it, as applicable: (a) the original invoices for all items or materials purchased or services performed which are to be funded by the Disbursement Request, and (b) copies of all permits, licenses and approvals, if any, by any Governmental Authority confirming completion of the Reserve Items. If an original invoice is not available, Borrower shall be required to evidence, to Lender’s satisfaction, the amounts expended for which reimbursement is requested.

          “Disclosure Documents” has the meaning set forth in Section 15.03 of this Loan Agreement.

          “Environmental Indemnity” means the Environmental Indemnity Agreement dated as of the Closing Date from Borrower and the other “Indemnitors” named therein to Lender.

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          “Equity Interests” means (a) partnership interests (whether general or limited) in an entity which is a partnership; (b) membership interests in an entity which is a limited liability company; or (c) the shares or stock interests in an entity which is a corporation.

          “Equity Owner” means PCAA Parent, LLC, a Delaware limited liability company.

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

          “Event of Default” means any of the events specified in Section 11.01 of this Loan Agreement.

          “Extension Term” has the meaning set forth in Section 2.03(d) of this Loan Agreement.

          “First Extended Maturity Date” has the meaning set forth in Section 2.03(d) of this Loan Agreement.

          “First Extension Term” has the meaning set forth in Section 2.03(d) of this Loan Agreement.

          “Force Majeure Event” means any act of God, act of war, insurrection, terrorist activity, governmental restriction or any other cause beyond Borrower’s reasonable control.

          “GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time.

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

          “Ground Lease” means that certain Lease dated January 19, 1995 by and between Reynal Co. Limited Partnership, an Ohio limited partnership, as lessor, and Olympic Management Systems, Inc., a New York corporation (as the same has been subsequently amended and assigned) or any subsequent ground lease executed by Borrower which secures the Loan.

          “Guarantor” means PCAA Parent, LLC, a Delaware limited liabilty company, who is executing the Guaranty as the guarantor, or, pursuant to the terms and conditions of this Loan Agreement and the Guaranty, a replacement guarantor who satisfies Lender’s requirements as to creditworthiness, net worth and liquidity substantially similar to those imposed by Lender on the foregoing named guarantor.

          “Guaranty” means the Guaranty (Exceptions to Nonrecourse Liability) dated as of the Closing Date from Guarantor to Lender.

          “Improvements” has the meaning set forth in the Security Instrument.

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          “Indemnified Claim” means the basis for the Indemnified Party’s claim for indemnification under Article 13 hereof.

          “Indemnified Parties” means Lender, together with its successors and assigns, which shall include, without limitation, any owner or prior owner or holder of the Note, any servicer of the Loan, any investor, or holder of a full or partial interest in the Loan, any receiver or other fiduciary appointed in a foreclosure or other proceeding under any Requirements of Law regarding creditors’ rights, any officers, directors, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, Affiliates of any and all of the foregoing, in all cases whether during the term of the Loan or as part of, or following, a foreclosure of the Security Instrument.

          “Independent Director/Manager” means an individual who shall not have been at the time of such individual’s initial appointment, and may not have been at any time during the preceding five years, and shall not be at any time while serving as an Independent Director/Manager of the Equity Owner or Borrower if a single member limited liability company or, if applicable, either (a) a shareholder of, or an officer, director, partner or employee of, Borrower or Equity Owner or any of their respective shareholders, partners, members, subsidiaries or Affiliates, (b) a customer of, or supplier to, Borrower or Equity Owner or any of their respective shareholders, partners, members, subsidiaries or Affiliates, (c) a person or other entity Controlling or under common Control with any such shareholder, officer, director, partner, member, employee, supplier or customer, or (d) a member of the immediate family of any such shareholder, officer, director, partner, member, employee, supplier or customer.

          “Individual Property” means fee title to, or a leasehold interest in, as the case may be, of any of the properties described in Exhibit G.

          “Insurance Premium Escrow Account” means an account held by Lender, or Lender’s designee, in which Borrower’s initial deposit for Insurance Premiums paid on the Closing Date and the Monthly Insurance Deposits will be held, pursuant to the provisions of Section 4.03 of this Loan Agreement.

          “Insurance Premiums” means the premiums for the insurance Borrower is required to provide pursuant to Section 9.03 of this Loan Agreement.

          “Interest Accrual Period” shall mean, with respect to any Payment Due Date, the period beginning on the fifteenth (15^th) day of the month prior to such Payment Due Date, through and including the fourteenth (14^th) day of the month of such Payment Due Date. By way of example, for a Payment Due Date of February 9, the Interest Accrual Period would run from January 15 through and including February 14.

          “Interest Rate Adjustment Date” means two (2) Business Days prior to the beginning of any Interest Accrual Period.

          “Interest Rate Index” means the weekly average yield on United States Treasury Securities adjusted to a constant maturity of one year, as made available by the Federal Reserve Board forty-five (45) days prior to each Interest Rate Adjustment Date.

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          “Issuer Group” has the meaning set forth in Section 15.05 of this Loan Agreement.

          “Issuer Person” has the meaning set forth in Section 15.05 of this Loan Agreement.

          “Land” has the meaning set forth in the Security Instrument.

          “Large Loan Statements” has the meaning provided in Section 15.06 of this Loan Agreement.

          “Lease” has the meaning set forth in the Security Instrument.

          “Lease Guaranty” has the meaning set forth in the Security Instrument.

          “Leasehold Estate” shall have the meaning set forth in the Security Instrument.

          “Lender” has the meaning in the introductory paragraph of this Loan Agreement.

          “Letter of Credit” has the meaning set forth in Section 6.07 of this Loan Agreement.

          “LIBOR Rate” means the average of London Interbank Offered Rates (in U.S. dollar deposits) for a term of one month determined solely by Lender as of each Interest Rate Adjustment Date. On each Interest Rate Adjustment Date, Lender will obtain the close-of-business LIBOR Rate from “Page 3750” on the Telerate Service (or such other page as may replace Page 3750 on that service) on the Interest Rate Adjustment Date. If Telerate Service ceases publication or ceases to publish the LIBOR Rate, Lender shall select a comparable publication to determine the LIBOR Rate and provide notice thereof to Borrower. The LIBOR Rate may or may not be the lowest rate based upon the market for U.S. dollar deposits in the London Interbank Eurodollar Market at which Lender prices loans on the date on which the LIBOR Rate is determined by Lender as set forth above.

          “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, the filing of any financing statement under the UCC or comparable law of any jurisdiction in respect of any of the foregoing and a mechanics’ or materialman’s lien).

          “Liquidity” means cash and unencumbered, marketable securities.

          “Loan” means the aggregate of all principal and interest payments that accrue or are due and payable in accordance with the Loan Agreement, together with any other amounts due under the Loan Documents. The terms “Loan” and “Debt” have the same meaning whenever used in the Loan Documents.

          “Loan Agreement” means this Loan Agreement.

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          “Loan Amount” means the principal amount of $48,750,000.00 (as increased pursuant to the terms hereunder), in lawful money of the United States of America, to be advanced to Borrower pursuant to this Loan Agreement. Reference in the Loan Agreement to “Loan Amount” mean the maximum principal amount, irrespective of actual principal amount outstanding or actually advanced to Borrower during the term of the Loan.

          “Loan Constant” means 11.33%.

          “Loan Documents” means, collectively, this Loan Agreement, the Note, the Security Instrument, the Assignment of Leases and Rents, the Assignment of Property Management Contract, the Environmental Indemnity, the Guaranty, the Lockbox Agreement, the Assignment of Interest Rate Cap Agreement, the Rate Cap Provider Consent and any and all other documents and agreements executed in connection with the Loan, as each such agreement may be modified, supplemented, consolidated, extended, restated or reinstated from time to time.

          “Loan to Value Ratio” means with respect to the specified period, the ratio obtained by dividing (a) the Outstanding Loan Amount, by (b) either, as selected in Lender’s discretion, the “as-is” or “as-stabilized” value of the Property as set forth in the appraisal obtained by Lender in connection with its underwriting of the Loan or any update thereto, whichever is most recent.

          “Lockbox Agreement” means the Lockbox – Deposit Account and Control Agreement dated as of the Closing Date between Borrower, PNC Bank and Lender.

          “Lockbox Trigger Event” has the meaning set forth in the Lockbox Agreement.

          “Losses” means any and all claims, suits, liabilities (including, without limitation, strict liabilities and liabilities under federal and state securities laws), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments, awards, and amounts paid in settlement of whatever kind or nature (including without limitation reasonable legal fees and other costs of defense).

          “Major Lease” means any Lease covering ten percent (10%) or more rentable square feet of any Individual Property including any expansion options years including any extension or options to renew. Lender may, in Lender’s sole discretion, aggregate any and all Leases to Affiliated to determine whether such Leases should be treated as a Major Lease.

          “Margin” has the meaning set forth in Section 2.02(b) of this Loan Agreement.

          “Material Adverse Effect” means, with respect to any circumstance, act, condition or event of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singly or in conjunction with any other event, act, condition circumstances, whether or not related, in Lender’s reasonable judgment, a material adverse change in, or a materially adverse effect upon (a) the business, operations, prospects or financial condition of Borrower or Guarantor; (b) the ability of Borrower or Guarantor to perform its obligations under any Loan Document to which it is a party; (c) the value or condition of the Property; (d) compliance of the Property with any Requirements of Law; (e) the validity, priority or enforceability of any Loan Document or the liens, rights

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(including, without limitation, recourse against the Property) or remedies of Lender hereunder or thereunder; or (f) the occupancy rate of the Property.

          “Maturity Date” has the meaning set forth in Section 2.03(c) of this Loan Agreement. If Borrower has extended the Maturity Date in accordance with this Loan Agreement, references thereafter in this Loan Agreement shall mean the Maturity Date as so extended, unless the context otherwise requires.

          “Monthly Insurance Deposit” means, with respect to the specified period, an amount equal to one-twelfth (1/12) of the Insurance Premiums that Lender estimates will be payable during the next ensuing twelve (12) months, subject to adjustment as set forth in Section 4.03(d) of this Loan Agreement.

          “Monthly Replacement Reserve Deposit” has the meaning set forth in Section 4.05(b) of this Loan Agreement, subject to adjustment as set forth in Section 4.05(d).

          “Monthly Tax Deposit” means, with respect to the specified period, an amount equal to one-twelfth (1/12) of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months, subject to adjustment as set forth in Section 4.02(d) of this Loan Agreement.

          “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

          “Net Worth” means, as of a given date, a Person’s equity calculated in conformance with GAAP by subtracting total liabilities from the total market value of total tangible assets.

          “Note” means the Promissory Note dated as of the Closing Date from Borrower to the order of Lender in the maximum principal amount equal to $58,740,000.

          “Obligations” means the Loan, and all other obligations and liabilities of the Borrower to Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with the Loan the Loan Documents, whether on account of principal, interest, fees, indemnities, costs, expenses (including, without limitation, all reasonable fees and disbursements of legal counsel) or otherwise.

          “OFAC List” means the list of specially designated nationals and blocked persons subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of Foreign Assets Control and any other similar list maintained by the U.S. Treasury Department, Office of Foreign Assets Control pursuant to any Requirements of Law, including, without limitation, trade embargo, economic sanctions, or other prohibitions imposed by Executive Order of the President of the United States. The OFAC List is accessible through the internet website www.treas.gov/ofac/t11sdn.pdf.

          “Operating Agreements” has the meaning set forth in the Security Instrument.

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          “Operating Expenses” means all cash expenses actually incurred by or charged to Borrower (appropriately pro-rated for any expenses that, although actually incurred in a particular period, also relate to other periods), with respect to the ownership, operation, leasing and management of the Property in the ordinary course of business, determined in accordance with GAAP, including, without limitation: (a) personal property taxes and real estate taxes; (b) sales taxes or any tax on rents (unless netted against Operating Income); (c) wages, salaries, payroll taxes and employee benefits; (d) costs of utility services; (e) maintenance, repair and custodial costs; (f) premiums payable for insurance carried on or with respect to the Property; (g) office supplies, other administrative expenses and professional fees; (h) costs of advertising and marketing for the Property; (i) costs of telephone service; (j) costs of garbage removal; (k) an allowance for income items that are determined to be uncollectible; (l) if a property or asset manager has been engaged by Borrower, any compensation, fees or reimbursements paid to such property or asset manager; if a property or asset manager has not been engaged by Borrower, all management related and head office expenses and salaries incurred by Borrower (but not less than 1.75% of Operating Income) and (k) ground rents. Notwithstanding the foregoing, Operating Expenses specifically exclude (1) capital expenditures, (2) depreciation and amortization, (3) payments made in connection with the payment of the outstanding principal balance of the Loan, (4) costs of Restoration following a Casualty or Condemnation, (5) funds disbursed from any Reserve Account, (6) any other non-cash items, (7) interest expense and (8) all income tax expenses. Solely for purposes of calculating the Debt Service Coverage Ratio under Sections 2.03(d)(ii)(F) and 10.03(a)(ii) and the Debt Service Coverage Constant Ratio under Section 2.03(d)(ii)(D), Operating Expenses under clause (1) above shall be deemed capped at the higher of (x) the actual management fee paid to any third party property manager and (y) 1.75% of Operating Income.

          “Operating Income” means all gross cash income, revenues and consideration received or paid to or for the account or benefit of Borrower resulting from or attributable to the operation or leasing of the Property determined in accordance with GAAP, including, without limitation: (a) parking revenues, rents from tenants, assignees, subtenants, ground lessee, or parties to walkway agreements, provided such tenants, assignees or subtenants are in actual occupancy pursuant to valid leases and paying rent; (b) amounts (to the extent included in Operating Expenses) payable by tenants to Borrower on account of maintenance or service charges, taxes, assessments, utilities and maintenance of the Property; (c) rents and receipts from licenses, service contracts, concessions, vending machines and similar items located at or operated from the Property; and (d) interest income; but excluding any income or revenues from a sale, refinancing, Casualty or Condemnation, payment of rents more than one (1) month in advance, lease termination payments, or payments from any other events not related to the ordinary course of operations of the Property.

          “Operating Permits” has the meaning set forth in Section 8.10 of this Loan Agreement.

          “Organizational Chart” means the chart attached hereto as Exhibit D which shows all persons or entities having an ownership interest in Borrower and in the Equity Owner.

          “Other Charges” means all ground rents, maintenance charges, impositions (other than Taxes) and similar charges (including, without limitation, vault charges and license

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fees for the use of vaults, chutes and similar areas adjoining the Property), now or hereafter assessed or imposed against the Property, or any part thereof, together with any penalties thereon.

          “Outstanding Loan Amount” means the principal amount of the Loan outstanding from time to time.

          “Partial Release” has the meaning set forth in Section 10.03 of this Loan Agreement.

          “Partial Release Date” has the meaning set forth in Section 10.03 of this Loan Agreement.

          “Partial Release Price” has the meaning set forth in Section 10.03 of this Loan Agreement.

          “Payment Due Date” has the meaning set forth in Section 2.03(b) of this Loan Agreement. It is the date that a regularly scheduled payment of principal and interest (or interest if the loan payments are interest-only) is due.

          “Permitted Encumbrances” means each of the following:

          (a) Those exceptions shown in the Title Insurance Policy and each other Lien which has been approved in writing by Lender.

          (b) Liens for taxes or other governmental charges not at the time delinquent or thereafter payable without penalty or being contested in good faith by appropriate proceedings and, in each case, for which Borrower maintains adequate reserves.

          (c) Liens arising in the ordinary course of business (such as (1) Liens of carriers, warehousemen, mechanics and materialmen and other similar Liens imposed by law and (2) Liens incurred in connection with worker’s compensation, unemployment compensation and other types of social security (excluding Liens arising under ERISA) or in connection with surety bonds, bids, performance bonds and similar obligations) for sums not overdue or being contested in good faith by appropriate proceedings and not involving any deposits or advances or borrower money or the deferred purchase price of property or services and, in each case, for which Borrower maintains adequate reserves.

          (d) Liens arising in connection with capital leases (and attaching only to the property being leased), subject to the limitations of Section 7.02(a)(xiii); and

          (e) easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens arising after the date hereof which will not interfere in any material respect with the value, use or ordinary conduct of the business of the Borrower.

          “Permitted Lease” has the meaning set forth in Section 9.06(a) of this Loan Agreement.

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          “Permitted Transfer” means each of the following:

          (a) Transfers of Equity Interests which, in the aggregate over the term of the Loan (i) do not exceed forty-nine percent (49%) of the total interests in Borrower or in Equity Owner or in Guarantor, as applicable; (ii) do not result in any Person holding an Equity Interest in Borrower or Equity Owner, as applicable, which exceeds forty-nine percent (49%) of the total Equity Interests in Borrower or in Equity Owner, as applicable; and (iii) do not result in a change of Control.

          (b) Intentionally Reserved.

          (c) Transfers which have been approved by Lender in accordance with Section 10.02 of this Loan Agreement.

          (d) Permitted Encumbrances.

          (e) All Transfers of worn out or obsolete furnishings, fixtures or equipment that are promptly replaced with property of equivalent value and functionality.

          (f) All Major Leases which have been approved by Lender in accordance with this Loan Agreement.

          (g) Transfer of interests in Borrower and its Affiliates prior to Closing which have been approved by Lender.

          (h) All Leases which are not Major Leases and which have been approved by the Lender pursuant to Section 9.06 or that not require Lender’s approval pursuant to Section 9.06.

          (i) If the transferor is an individual, Transfers of Equity Interests of such transferor to such transferor’s immediate family members or trusts established for the benefit of such family members for estate planning purposes, provided that (i) Borrower provides prior written notice of such Transfers to Lender, together with all supporting information and documentation required by Lender in connection with such Transfers, (ii) Borrower pays any and all Lender’s costs in connection with the review of any such Transfer, and (iii) no such Transfer results in a change of Control.

          “Person” means an individual, partnership, limited partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature.

          “Personal Property” has the meaning set forth in the Security Instrument.

          “Prepayment Fee” has the meaning set forth in Section 2.05(b) of this Loan Agreement.

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          “Property” means collectively, all Individual Properties securing the Loan, as described on Exhibit G attached hereto, or one or more of the Individual Properties, as the context requires.

          “Property Management Contract” means the Operations Agreement between Borrower and Property Manager which provides for the management of the Property for Borrower by Property Manager.

          “Property Manager” means Airport Parking Management, Inc., a Delaware corporation or any third party property manager retained by Borrower at Lender’s direction or with Lender’s approval, all as set forth in this Loan Agreement.

          “Property Manager” means any third party property manager retained by Borrower at Lender’s direction or with Lender’s approval, all as set forth in this Loan Agreement.

          “Property Banks” has the meaning set forth in Section 3.01 of this Loan Agreement.

          “Qualified Transferee” shall mean one or more of the following:

          (a) a real estate investment trust, bank, saving and loan association, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund or pension advisory firm, mutual fund, government entity or plan, provided that any such Person referred to in this clause (i) satisfies the Eligibility Requirements;

          (b) an investment company, money management firm or “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an institutional “accredited investor” within the meaning of Regulation D under the Securities Act of 1933, as amended, provided that any such Person referred to in this clause (ii) satisfies the Eligibility Requirements;

          (c) an institution substantially similar to any of the foregoing entities described in clauses (i) or (ii) that has total assets (in name or under management) in excess of $600,000,000 and (except with respect to a pension advisory firm or similar fiduciary) capital/statutory surplus or shareholder’s equity of $250,000,000 satisfies the Eligibility Requirements;

          (d) any entity controlled by any of the entities described in clauses (i), (ii) or (iii) above; or

          (e) an investment fund, limited liability company, limited partnership or general partnership where a Permitted Fund Manager or an entity that is otherwise a Qualified Transferee under clauses (i), (ii), (iii) or (iv) of this definition acts as the general partner, managing member or fund manager and at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Transferees under clauses (i), (ii), (iii) or (iv) of this definition.

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which entity also either satisfies or engages a property manager or employs a management team which satisfies the following:

1) has at least five (5) years’ experience in the management of off-airport parking operations similar to the operation of the Property.

2) operates at least ten (10) off-airport parking facilities which (i) are located at a minimum of six (6) different airports nationally; (ii) contain a minimum of 12,000 parking spaces in aggregate, and (iii) generate a minimum revenue of $25 million annually.

          “Rate Cap” means an interest rate cap in the notional amount of the Outstanding Loan Amount obtained by Borrower as protection against interest rate fluctuations under the Loan, which interest rate cap shall remain in effect until the Maturity Date.

          “Rate Cap Agreement” means the written agreement evidencing the financial and performance terms of the Rate Cap purchased by Borrower from Rate Cap Provider which satisfies all requirements of Section 2.07 of this Loan Agreement.

          “Rate Cap Provider” means the counterparty issuing a Rate Cap to Borrower.

          “Rate Cap Provider Consent” means the Rate Cap Provider Consent and Acknowledgement to Assignment of Rate Cap with respect to the assignment of the Rate Cap from Borrower to Lender, executed by the Rate Cap Provider in favor of Lender.

          “Rating Agencies” means Fitch, Inc., Moody’s Investors Service, Inc. and S & P, or any successor entity of the foregoing, or any other nationally recognized statistical rating organization to the extent that any of the foregoing have been or will be engaged by Lender or its designees in connection with or in anticipation of Securitization or any other sale or grant of participation interests in the Loan (or any part thereof).

          “Rating Confirmation” means a written confirmation from each of the Rating Agencies (unless otherwise agreed by Lender) that an action shall not result in a downgrade, withdrawal or qualification of any securities issued in connection with a Securitization.

          “Release Property” means each portion of the Property identified as “Release Property” above in the definition of Partial Release Price.

          “Rent Roll” means a statement from Borrower, in a form reasonably acceptable to Lender, detailing the names of all tenants of the Property, the portion of Property occupied by each tenant, the base rent and any other charges payable under each Lease, the term of each Lease, the beginning date and expiration date of each Lease, whether any tenant is in default under its Lease (and detailing the nature of such default), and any other information as is reasonably required by Lender, all certified by a Responsible Officer to be true, correct and complete.

          “Rents” has the meaning set forth in the Security Instrument.

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          “Replacement Reserve Account” means an account held by Lender, or Lender’s designee, in which the Monthly Replacement Reserve Deposits will be held, which shall not constitute a trust fund.

          “Replacement Reserve Cap” has the meaning set forth in Section 4.05(b).

          “Replacements” means the scheduled repairs and replacements to the Property identified on Exhibit F hereto.

          “Requirements of Law” means (a) the organizational documents of an entity, and (b) any law, regulation, ordinance, code, decree, treaty, ruling or determination of an arbitrator, court or other Governmental Authority, or any Executive Order issued by the President of the United States, in each case applicable to or binding upon such Person or to which such Person, any of its property or the conduct of its business is subject including, without limitation, laws, ordinances and regulations pertaining to the zoning, occupancy and subdivision of real property.

          “Reserve Accounts” means, individually and collectively, as the context requires, the Tax Escrow Account, the Insurance Premiums Escrow Account, the Replacement Reserve Account, the Capital Improvements/Deferred Maintenance Escrow Account and the Leasehold Payment Reserve Account.

          “Reserve Item” means, individually and collectively, as the context requires, the Replacements, the Capital Improvements.

          “Responsible Officer” means, as to any Person, an individual who is a managing member, a general partner, the chief executive officer, the president or any vice president of such Person or, with respect to financial matters, the chief financial officer or treasurer of such Person or any other officer authorized by such Person to deliver documents with respect to financial matters pursuant to this Loan Agreement.

          “Restoration” means the repairs, replacements, improvements, or rebuilding of or to the Property following a Casualty or Condemnation.

          “Restoration Deficiency Deposit” has the meaning set forth in Section 9.04(d) of this Loan Agreement. All amounts deposited by Borrower with Lender as the Restoration Deficiency Deposit shall become a part of the Restoration Proceeds and disbursed by Lender for Restoration on the same conditions applicable to disbursement of Restoration Proceeds and, until so disbursed, are pledged to Lender as security for the Loan and Obligations.

          “Restoration Holdback” has the meaning set forth in Section 9.04(e) of this Loan Agreement.

          “Restoration Proceeds” has the meaning set forth in Section 9.04(b) of this Loan Agreement.

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

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          “Second Extended Maturity Date” has meaning set forth in Section 2.03(d) of this Loan Agreement.

          “Second Extension Term” has meaning set forth in Section 2.03(d) of this Loan Agreement.

          “Securities Act” means the Securities Act of 1933 and any successor statute thereto and the related regulations issued thereunder, all as amended from time to time.

          “Securities Exchange Act” means the Securities Exchange Act of 1934, and any successor statute thereto and the related regulations issued thereunder, all as amended from time to time.

          “Securities Liabilities” has the meaning provided in Section 15.05 of this Loan Agreement.

          “Securitization” or “Securitize” means the sale of the Loan, by itself or as part of pool with other loans, in a transaction whereby mortgage pass-through certificates or other securities evidencing a beneficial interest, backed by the Loan or such pool of loans, will be sold as a rated or unrated public offering or private placement.

          “Security Instrument” means those certain Mortgages, Assignment of Rents and Leases, Security Agreement and Fixture Filing, or the Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing, as applicable, encumbering the Property and executed by Borrower to Lender or to a trustee for the benefit of Lender, as the case may be, to secure Borrower’s payment of the Loan and performance of the Obligations.

          “Single Purpose Entity” has the meaning set forth in Section 7.02 of this Loan Agreement.

          “Standard Lease Form” means, as applicable, the standard form of lease agreement used by Borrower for the rental of commercial units at the Property and the standard form of lease agreement used by Borrower for the rental of residential units at the Property, in each case in the form certified to Lender as of the Closing Date or subsequently approved by Lender in writing.

          “Strike Rate” means with respect to the period from and including the Closing Date through October 15, 2008, four and forty-eight one-hundredths percent (4.48%). The Strike Rate for any Extension Term shall be determined by Lender in accordance with Section 2.03(d) hereof.

          “Tax Code” means the Internal Revenue Code of 1986 and the related Treasury Department regulations issued thereunder, including temporary regulations, all as amended from time to time.

          “Tax Escrow Account” means an account held by Lender, or Lender’s designee, in which Borrower’s initial deposit for Taxes made on the Closing Date and the Monthly Tax Deposits will be held, which shall not constitute a trust fund.

88

          “Taxes” means all real estate taxes, government assessments or impositions, lienable water charges, lienable sewer rents, assessments due under owner association documents, ground rents, vault charges and license fees for the use of vault chutes and all other charges (other than the Other Charges), now or hereafter levied or assessed against the Land and Improvements.

          “Title Insurance Policy” means the mortgagee title insurance policy obtained by Lender in connection with the Loan, and, until the issuance of such policy, the commitment for title insurance as marked-up as of the Closing Date, in either case in form and substance (with such endorsements and affirmative coverages) as is satisfactory to Lender, insuring that the Security Instrument constitutes a perfected first Lien against the Property in the Loan Amount, subject only to Permitted Encumbrances.

          “Transfer” means any action other than a Permitted Transfer by which either (a) the legal or beneficial ownership of the Equity Interests in Borrower or in Equity Owner or (b) the legal or equitable title to the Property, or any part thereof, or (c) the cash flow from the Property or any portion thereof, are sold, assigned, transferred, hypothecated, pledged or otherwise encumbered or disposed of, in each case (a), (b) or (c) whether undertaken, directly or indirectly, or occurring by operation of law or otherwise, including, without limitation, each of the following actions:

(i)	the sale, conveyance, assignment, grant of an option with respect to, mortgage, deed in trust, pledge, grant of a security interest in, or any other transfer, as security or otherwise, of the Property or with respect to the Leases or Rents (or any thereof);
(ii)	the grant of an easement across the Property (other than minor easements not having a Material Adverse Effect) or any other agreement granting rights in or restricting the use or development of the Property (including, without limitation, air rights);
(iii)	an installment sale wherein Borrower agrees to sell the Property for a price to be paid in installments;
(iv)	an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder; or
(v)	the issuance of additional partnership, membership or other equity interests, as applicable.

          “Transferee” has the meaning provided in Section 6.08 of this Loan Agreement.

          “UCC” means the Uniform Commercial Code in effect in the State where the Property is located, as from time to time amended or restated. For purposes of the UCC’s application to the Reserve Accounts, the parties agree that the Reserve Accounts shall be deemed located in the laws of the State of New York.

89

          “Underwriter Group” has the meaning provided in Section 15.05 of this Loan Agreement.

ARTICLE 20

FUTURE FUNDINGS

     20.01. General. As of the Closing Date, Borrower is pursuing the acquisition of certain other fee and leasehold properties located in New York, New York (“La Guardia Property”) and Phoenix, Arizona (“Phoenix Property”), respectively. Accordingly, Borrower has not completed, nor submitted to Lender for review and approval, all of the due diligence materials required in connection with either such property. Within forty-five (45) days of the date of this Agreement, Borrower agrees to submit all due diligence materials relating to such properties specified in the closing conditions listed on Exhibit I (“Future Funding Conditions”). Accordingly, notwithstanding anything to the contrary contained in this Loan Agreement, it is contemplated that, subject to satisfaction of the Future Funding Conditions and/or of this Loan Agreement, as the case may be, the Loan will be disbursed in three (3) separate advances, as follows:

          (a) $48,750,000 shall be disbursed on the Closing Date;

          (b) $7,200,000 shall be disbursed on or before November 17, 2005 in connection with the La Guardia Property (the “La Guardia Disbursement”); and

          (c) $2,790,000 shall be disbursed on or before November 17, 2005 in connection with the Phoenix Property (the “Phoenix Disbursement”).

     20.02. The La Guardia Disbursement.

          (a) The Lender shall not be required to make the La Guardia Disbursement unless all of the Future Funding Conditions with respect to the La Guardia Property have been met as of November 17, 2005 and/or have been waived in writing by the Lender and each of the following additional conditions have been met:

(i)	The Borrower shall have executed and delivered an acceptable first mortgage and an assignment of leases and rents encumbering such property in favor of Lender;
(ii)	The Title Insurance Policy shall be increased by $7,200,000 and endorsed to include the La Guardia Property.
(iii)	The notional amount of the Rate Cap shall be increased by $7,200,000.
(iv)	The Lender shall have received an opinion of local counsel for the Borrower regarding the proper form and enforceability of the

90

	mortgage and the assignment of leases and rents encumbering such property.
(v)	No Event of Default shall have occurred and be continuing under this Loan Agreement.
(vi)	Each of the representations and warranties of the Borrower set forth in this Loan Agreement shall be true and accurate as of the date of such disbursement.

          (b) In the event the La Guardia Disbursement is made:

(i)	The Allocated Loan Amount shall be $7,200,000 for the La Guardia Property, and Exhibit E will be deemed modified accordingly.
(ii)	The following references shall be modified:

(A)	Exhibit G will be deemed modified by any additional capital improvements identified by Lender in writing.
(B)	the definition of Ground Lease will be modified to reflect any ground lease associated with the La Guardia Property, and individually or collectively with the Ground Lease on the Columbus, Ohio property as the context of the Loan Documents requires.
(C)	the Monthly Replacement Reserve Deposit shall be increased by $785.83.
(D)	all references to Property shall be deemed to include the La Guardia Property.
(E)	the Capital Improvements/Deferred Maintenance Deposit shall be increased by an amount determined by Lender, in its sole reasonable discretion.
(F)	the Replacement Reserve Cap and any applicable Letter of Credit shall be increased by $9,430.
(G)	the Leasehold Payment Reserve Account shall be increased by an amount equal to one month’s rent under any ground lease of the La Guardia Property.

(iii) The Prepayment Fee specified in Section 2.05(b)(iii)(A) shall be reduced to eighty-eight one-hundredths percent (0.88%), the Prepayment Fee specified in Section 2.05(b)(iii)(B) shall be reduced to forty-four one-hundredths percent (0.44%) and the

91

release fee applied to the Partial Release Price shall be reduced to 0.88% in Section 10.03(a(iii)(A) and 0.44% in Section 10.03(a)(iii)(B).

     20.03. The Phoenix Disbursement.

          (a) The Lender shall not be required to make the Phoenix Disbursement unless all of the Future Funding Conditions with respect to the Phoenix Property have been met as of November 17, 2005 and/or have been waived in writing by the Lender and each of the following additional conditions have been met:

(i)	The Borrower shall have executed and delivered an acceptable first deed of trust and an assignment of leases and rents encumbering such property in favor of Lender.
(ii)	The Title Insurance Policy shall be increased by $2,790,000 and endorsed to include the Phoenix Property.
(iii)	The notional amount of the Rate Cap shall be increased by $2,790,000.
(iv)	The Lender shall have received an opinion of local counsel for the Borrower regarding the proper form and enforceability of the deed of trust and the assignment of leases and rents encumbering such property.
(v)	No Event of Default shall have occurred and be continuing under this Loan Agreement.
(vi)	Each of the representations and warranties of the Borrower set forth in this Loan Agreement shall be true and accurate as of the date of such disbursement.

          (b) In the event the Phoenix Disbursement is made:

(i)	The Allocated Loan Amount shall be $2,790,000 for the Phoenix Property, and Exhibit E will be deemed modified accordingly.
(ii)	The following references shall be modified:

(A)	Exhibit G will be deemed modified by any additional capital improvements identified by Lender in writing.
(B)	the Monthly Replacement Reserve Deposit shall be increased by $550.00.
(C)	all references to Property shall be deemed to include the Phoenix Property.

92

(D)	the Capital Improvements/Deferred Maintenance Deposit shall be increased by $600,000.
(E)	the Replacement Reserve Cap and any applicable Letter of Credit shall be increased by $6,600.

(iii) The equity investment described in Sections 8.30 and 9.17 shall be increased by $1,235,000.

93

Loan Number: 48442

Attachments:
Schedule 8.01	Exceptions to Required Approvals
Schedule 8.04	Litigation
Schedule 8.08	Condemnation Proceedings
Schedule 8.09	Exceptions to Compliance with Requirements of Law
Schedule 8.10	Exceptions to Required Licenses and Permits
Schedule 8.11	Exceptions to Separate Tax Lots
Schedule 8.15	Encroachments
Schedule 8.19(A)	Leases
Schedule 8.19(D)	Leases to Related Persons
Schedule 8.32	Leases for which no memorandum has been recorded and
	Changes since Memorandum of Lease
Exhibit A	Compliance Certificate Form
Exhibit B	Disbursement Request Form
Exhibit C	Capital Improvements
Exhibit D	Organizational Chart
Exhibit E	Allocated Loan Amount
Exhibit F	Replacements
Exhibit G	List of Properties
Exhibit H	Excess Parcel
Exhibit I	Future Funding Conditions

[Remainder of page is blank; signatures appear on next page.]

          IN WITNESS WHEREOF, Lender and Borrower hereby sign, seal and deliver this Loan Agreement. By signing below on behalf of Borrower, Equity Owner also consents, in its individual capacity, to the obligations of Equity Owner set forth in Sections 9.11(c), 8.21 and Article 15 of this Loan Agreement.

LENDER:
GMAC COMMERCIAL MORTGAGE BANK, a Utah industrial bank
By:	/s/ Nancy Bendokas
	Name:	Nancy Bendokas
	Title:	Limited Signer
BORROWER:
PCAA SP, LLC, a Delaware limited liability company
By:	PCAA Parent, LLC, a Delaware limited liability
	company, its Sole Member
	By:	Parking Company of America Airports
		Holdings, LLC, a Delaware limited liability
		company, its Managing Member
		By:	Macquarie Americas Parking
			Corporation, a Delaware
			corporation, its Managing Member
			By:	/s/ Peter Stokes
				Name:	Peter Stokes
				Title:	Vice President
Borrower’s State Identification Number:
Borrower’s Tax Identification Number:

2

          Parking Company of America Airports LLC executes this Agreement to acknowledge the provisions of Section 8.34 hereof.

PARKING COMPANY OF AMERICA AIRPORTS LLC
By:	PCAA Parent, LLC, a Delaware limited liability company, its Sole Member
	By:	Parking Company of America Airports Holdings, LLC, a Delaware limited liability company, its Managing Member
		By:	Macquarie Americas Parking Corporation, a Delaware corporation, its Managing Member
			By:	/s/ Peter Stokes
				Name:	Peter Stokes
				Title:	Vice President

3

SCHEDULE 8.01

Exceptions to Required Approvals

1. St. Louis Site, Edmunson, Missouri, requires that a new certificate of occupancy be issued after a transfer of real estate is completed. Borrower has made the necessary applications but a final certificate of occupancy cannot be provided until the closing has occurred. Once the closing occurs, the final certificate of occupancy will be pursued by Borrower diligently.

SCHEDULE 8.04

Litigation

None.

SCHEDULE 8.08

Condemnation Proceedings

1. Phoenix Site, Borrower is acquiring the Phoenix Site subject to a pre-existing purchase agreement pursuant to which the City of Phoenix is acquiring 2,076 square feet of frontage along East Washington Street along with a temporary construction easement and a public utility easement. A copy of this purchase agreement was provided to Lender.

SCHEDULE 8.09

Exceptions to Compliance with Requirements of Law

1. St. Louis Site, Edmunson, Missouri, requires that a new certificate of occupancy be issued after a transfer of real estate is completed. Borrower has made the necessary applications but a final certificate of occupancy cannot be provided until the closing has occurred. Once the closing occurs, the final certificate of occupancy will be pursued by Borrower diligently.

SCHEDULE 8.10

Exceptions to Required Licenses and Permits

1. St. Louis Site, Edmunson, Missouri, requires that a new certificate of occupancy be issued after a transfer of real estate is completed. Borrower has made the necessary applications but a final certificate of occupancy cannot be provided until the closing has occurred. Once the closing occurs, the final certificate of occupancy will be pursued by Borrower diligently.

SCHEDULE 8.11

Exceptions to Separate Tax Lots

None.

SCHEDULE 8.15

Encroachments

As shown on surveys delivered to Lender.

SCHEDULE 8.19(A)

Leases

1. Buffalo, the Buffalo Site is subject to an office space lease in favor of Pasquale Scarzamuzza dated July 1, 1992 which has been renewed on a year to year basis.

SCHEDULE 8.19(D)

Leases to Related Persons

None.

SCHEDULE 8.32

Leases for which no memorandum has been recorded
and
Changes since Memorandum of Lease

None.

Exhibit A

Compliance Certificate Form

COMPLIANCE CERTIFICATE

Borrower Name:                                                                                                                                                    &n bsp;           

Property Address:                                                                                                                                                     ;            

GMACCM Loan Number:                                                                                                                                            

Borrower is providing this Compliance Certificate in accordance with the terms of the Loan Agreement dated October 3, 2005 (“Loan Agreement”) executed between Borrower and GMAC Commercial Mortgage Bank (“Lender”). Capitalized terms used in this Compliance Certificate and not specifically defined herein have the meaning provided in the Loan Agreement.

This Compliance Certificate covers the period from                     ,  200___  through                     , 200___, inclusive (“Covered Period”).

Borrower hereby represents, warrants and certifies to Lender that, as of the date hereof (or such other date as may be specified below), and unless otherwise provided on Schedule A hereto:

1.	No Event of Default has occurred and is continuing [, and no event or condition exists that would be an Event of Default if notice had been given or applicable grace/cure periods had expired (or both).]
2.	Borrower’s representations and warranties set forth in the Loan Documents [(including without limitation, those in Article 8 of the Loan Agreement and in Article 2 of the Environmental Indemnity Agreement)] are true and correct in all material respects.
3.	The Debt Service Coverage Ratio as of the end of the Covered Period is:

Required:	___  to 1.0
Actual:	___  to 1.0

4. Guarantor’s Net Worth as of the end of the Covered Period is:

Required:	___
Actual:	___

5. Guarantor’s Liquidity as of the end of the Covered Period is:

Required:	___
Actual:	___

6. The following financial statements of Borrower (“Financial Statements”) attached hereto are true, accurate and complete reports of the period covered thereby:

[___] [monthly][quarterly][year-to-date] operating statement for the Property

[___] [monthly][quarterly][year-to-date] balance statement

[___] [monthly][quarterly][year-to-date] changes in financial position

[___] [monthly][quarterly][year-to-date] profit/loss statement

[___] [monthly][quarterly][year-to-date] statement detailing the amount and type of Capital Expenditures completed at the Property during           the applicable period

No payments have been made to equity investors in Borrower as returns of equity other than as reported in [identify applicable financial statement and its date].

7.	No Transfer has occurred in violation of the Loan Agreement. If any change has occurred in Borrower’s Organizational Chart, a new Organizational Chart is attached hereto.
8.	The attached operating budget for the Property is a true, accurate and complete projection of Operating Income, Operating Expenses and Capital Expenditures reasonably anticipated in good faith for the period commencing on ___ and ending ___, inclusive.
9.	No floods, major plumbing or water leaks have occurred at the Property since the end of the Covered Period in the last Compliance Certificate.
10.	No event or condition exists which, in Borrower’s reasonable judgment, could have Material Adverse Effect on Borrower, any Guarantor, the Property, the Property Manager or any Major Lease.
11.	No change has occurred in the Property Manager or with respect to the Property Management Contract. No event of default currently exists under the Property Management Contract[, and no event or condition exists that would be an event of default under the Property Management Contract if notice had been given or applicable grace/cure periods had expired (or both)].
12.	All policies of insurance required for the Loan are in full force and effect and in the required coverage amounts. Borrower has not received notice that any insurance policy is to be cancelled, not renewed, materially modified or existing coverage excluded.

[OPTIONAL PROVISIONS, AS NEEDED]

13. The Loan-to-Value Ratio as of the determination date is:

Required:	___
Actual	___

2

14.	The outstanding principal balance of all indebtedness (other than the Loan) of Borrower is ___. Schedule A identifies each obligation, the purpose, and principal amount due.
15.	The outstanding principal balance of all indebtedness of Equity Owner is ___. Schedule A identifies each obligation, the purpose, and principal amount due.
16.	No unpaid or unreimbursed construction or fit-up allowances are due to any tenant of a Major Lease.
17.	The O&M Plan (as defined in the Environmental Indemnity Agreement) for [define purpose] is being followed and maintained.
18.	The attached current budget for ______ [define scope of work, e.g. Capital Improvements, Replacements] represents Borrower’s good faith and reasonable estimate of the funds needed to complete the required work. Any change in a budget item, scope of work, or completion date since the end of the Covered Period in the last Compliance Certificate is identified on Schedule A. [No material dispute exists between Borrower and any contractor, supplier, subcontractor or material provider in connection with any work or improvements being performed at the Property.]
19.	[Use this provision when repairs/improvements are required, but Lender has not escrowed, reserved or held back funds to ensure completion]. The [define scope of work, e.g. Capital Improvements] [have been completed][are progressing on schedule] in compliance with the requirements of the Loan Agreement. All payments due to contractors, suppliers, subcontractors and material providers in connection with such work have been paid in full, and no Liens exists against the Property in connection with such work.

3

BY SIGNING BELOW, Borrower certifies that (a) all information provided in this Compliance Certificate and Schedule A hereto (if attached) is true, accurate and correct in all material respects and does not omit any material fact that would make any statement false or misleading and (b) the undersigned representative is duly authorized to sign this Compliance Certificate on Borrower’s behalf.

	Borrower
Date:	By:
	Name:
	Title:

4

Exhibit B

Disbursement Request Form

Exhibit C

Capital Improvements

     None.

2

Exhibit D

Organizational Chart

3

Exhibit E

Allocated Loan Amount

Buffalo	-	$	9,100,000
Houston	-	$	1,100,000
Columbus	-	$	4,300,000
Oklahoma City	-	$	3,500,000
Philadelphia	-	$	10,250,000
St. Louis	-	$	20,500,000

4

Exhibit F

Replacements

5

Exhibit G

List of Properties

1.	Buffalo, NY
2.	Houston, TX
3.	Columbus, OH
4.	Oklahoma City, OK
5.	Philadelphia, PA
6.	St. Louis, MO

6

Exhibit H

Oklahoma City Release Parcel

7

Exhibit I

Future Funding Conditions

     Lender’s obligation to fund the La Guardia Property or the Phoenix Property shall be conditioned upon, and subject to, satisfaction of each of the following conditions:

     (a) Lender shall have received to the extent not previously delivered to and approved by Lender prior to the date hereof:

          (i) a final written appraisal satisfactory to Lender;

          (ii) a written comprehensive environmental Phase One site assessment meeting Lender’s requirements, conducted using ASTM standards by certified independent qualified environmental consultant(s) registered with the Lender, and satisfactory resolution of any environmental issues raised therein (including, but not limited to, Phase II environmental reports if necessary);

          (iii) a final written architectural and engineering report by an engineering firm designated by Lender satisfactory to Lender; and

          (iv) the original, or a copy certified by the insurance agent, of the policy(ies) of insurance, all in form and content satisfactory to Lender. Insurance binders or certificates will not be accepted.

     (b) Final review and approval of any documentation, other than the Loan Documents, contemplated by the transaction described in the Addendum to Application or otherwise required in satisfying all of the remaining terms and conditions of this letter.

     (c) All of the terms, covenants and conditions of the Addendum to Application dated August 10, 2005 (“Application”) and this Exhibit I on the part of Borrower to be fulfilled or performed shall have been fulfilled and performed to the satisfaction of Lender.

     (d) Other terms and conditions:

          (i) Intentionally omitted.

          (ii) Intentionally omitted.

          (iii) Intentionally omitted.

          (iv) Receipt of estoppels and consents from landlords under all ground leases (which will be in effect after the Loan Closing) in form substantially similar to those attached to the Agreement for the Sale and Purchase of Property dated as of August 2, 2005, together with satisfactory estoppels for any leases subsequently entered into after the dates of the aforesaid estoppels and consents.

8

          (v) Receipt and approval by Lender, to its satisfaction, of zoning letters with respect to the properties or alternatively, receipt by Lender, to its satisfaction, of other evidence of zoning compliance with respect to the properties.

          (vi) Intentionally omitted.

          (vii) Execution and delivery of a purchase and sale agreement in substantially the form which has been approved by Lender and performance by Borrower of its obligations thereunder, to the extent same are capable of being performed as of the Loan Closing.

          (viii) Review and approval of satisfactory title searches and surveys for each property and delivery of title insurance policies or marked title commitments for all such properties in a form and having endorsements satisfactory to Lender.

     (e) Except as approved in writing by Lender:

          (i) As to those properties for which a site inspection has been conducted, since the date of such inspection by Lender, no material portion of such property shall have been damaged and not repaired to Lender’s satisfaction, or shall have been taken in condemnation or other similar proceedings, or any such proceedings shall be pending;

          (ii) As to those properties for which a site inspection has been conducted, since the date of such inspection by Lender, there has been no material change in the structure or physical condition thereof;

          (iii) neither Borrower nor any Guarantor or any affiliate thereof, or officers or principals of any of the foregoing, shall be the subject of any bankruptcy, reorganization or insolvency proceeding;

          (iv) no default shall have occurred and be continuing in the performance of any obligation of Borrower, the Guarantors or any affiliate of any of the foregoing in the instruments evidencing, securing or guaranteeing any other loan;

          (v) except as disclosed in the environmental reports required to be delivered to Lender and which have been approved in connection with the Loan, no asbestos, toxic waste, oil or petroleum spillage or other Hazardous Substances (as defined in the Loan Documents) or condition shall exist on any property;

          (vi) intentionally omitted;

          (vii) the income and expenses of the properties, and any other features of the transaction contemplated hereby, shall be substantially as represented in this Exhibit I or any other documents delivered to, or communications with, Lender in order to induce Lender to make the Loan;

9

          (viii) a material adverse change shall not have occurred in (a) the financial condition of, or (b) any information or other matters affecting, Borrower or the Guarantors since the date the financial data, documentation, information or other matters relating to such persons or entities was disclosed to Lender;

          (ix) no other change in facts, events, conditions or circumstances shall occur, and no new facts, events, conditions or circumstances shall occur after the date hereof, which may reasonably be expected to cause the Loan to become delinquent or to materially and adversely affect the (a) Loan or property, (b) business, operations, properties or condition (financial or otherwise) of the Borrower or Guarantors or (c) financial, banking or capital markets such that a prudent lender would be unwilling or unable to close the Loan or unable or unwilling to securitize, syndicate or sell on a whole loan basis the Loan thereafter; and

          (x) All of the information provided by Borrower, the Guarantors or any affiliate thereof, or any officers or principals of any of the foregoing, in connection with Borrower’s application for the Loan, including but not limited to questionnaires completed by any of the foregoing persons or entities, was true and correct in all material respects on the dates provided and did not omit any information necessary to render the information provided complete and accurate in all material respects on the respective dates provided, and all such information shall remain materially accurate on the Closing Date, except as Borrower has otherwise disclosed in writing to, and has been approved in writing by, Lender. All representations and warranties by Borrower and the Guarantors in the Loan Documents shall be accurate and complete on the Closing Date.

     (f) Intentionally omitted.

     (g) Any and all amounts required to be paid by Borrower on or before the Closing Date in accordance with the Loan closing settlement statement (including, without limitation, amounts specified by Lender in the Loan Agreement as initial deposits for the escrow and reserve accounts required to be maintained under the Loan Agreement) shall have been paid to Lender’s designated escrow agent by wire transfer of immediately available funds no later than 12:00 noon New York City time on the Closing Date.

     (h) There shall have been no material adverse change to any of the due diligence conducted by and approved by Lender as of the date hereof.

10

EX-10.3

Exhibit 10.3

EXECUTION COPY

$250,000,000

CREDIT AGREEMENT

Dated as of November 11, 2005

among

Macquarie Infrastructure Company Inc.
(d/b/a Macquarie Infrastructure Company (US))
as Borrower,

Macquarie Infrastructure Company LLC
as Holdings,

The Lenders and Issuers 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

TABLE OF CONTENTS

	Page
ARTICLE I DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS	1
Section 1.1 Defined Terms	1
Section 1.2 Computation of Time Periods	26
Section 1.3 Accounting Terms and Principles	26
Section 1.4 Certain Terms	27
ARTICLE II THE FACILITY	28
Section 2.1 The Commitments	28
Section 2.2 Borrowing Procedures	28
Section 2.3 Letters of Credit	30
Section 2.4 Reduction and Termination of the Commitments	34
Section 2.5 Repayment of Loans	34
Section 2.6 Evidence of Debt	35
Section 2.7 Optional Prepayments	36
Section 2.8 Mandatory Prepayments	36
Section 2.9 Interest	37
Section 2.10 Conversion/Continuation Option	38
Section 2.11 Fees	39
Section 2.12 Payments and Computations	39
Section 2.13 Special Provisions Governing Eurodollar Rate Loans	42
Section 2.14 Capital Adequacy	44
Section 2.15 Taxes	44
Section 2.16 Substitution of Lenders	48
ARTICLE III CONDITIONS TO LOANS AND LETTERS OF CREDIT	49
Section 3.1 Conditions Precedent to Effectiveness	49
Section 3.2 Conditions Precedent to Each Loan and Letter of Credit	51
Section 3.3 Determinations of Conditions Precedent to Effectiveness	52
ARTICLE IV REPRESENTATIONS AND WARRANTIES	52
Section 4.1 Corporate Existence; Compliance with Law	52
Section 4.2 Corporate Power; Authorization; Enforceable Obligations	53
Section 4.3 Ownership of Borrower; Subsidiaries	54
Section 4.4 Financial Statements	54

 i

TABLE OF CONTENTS
(continued)

	Page
Section 4.5 Material Adverse Change	55
Section 4.6 Solvency	55
Section 4.7 Litigation	55
Section 4.8 Taxes	55
Section 4.9 Full Disclosure	56
Section 4.10 No Defaults	56
Section 4.11 Investment Company Act; Public Utility Holding Company Act	56
Section 4.12 Use of Proceeds	57
Section 4.13 Perfection, Etc	57
ARTICLE V FINANCIAL COVENANTS	57
Section 5.1 Maximum Leverage Ratio	57
Section 5.2 Minimum Interest Coverage Ratio	58
ARTICLE VI REPORTING COVENANTS	58
Section 6.1 Financial Statements	58
Section 6.2 Default Notices	59
Section 6.3 Litigation	59
Section 6.4 SEC Filings; Press Releases	60
Section 6.5 Acquisitions	60
Section 6.6 Other Information	60
ARTICLE VII AFFIRMATIVE COVENANTS	61
Section 7.1 Preservation of Corporate Existence, Etc.	61
Section 7.2 Compliance with Laws, Etc.	61
Section 7.3 Payment of Taxes, Etc.	61
Section 7.4 Access	61
Section 7.5 Keeping of Books	62
Section 7.6 Application of Proceeds	62
Section 7.7 Additional Collateral	62
Section 7.8 Additional Guarantees	63
Section 7.9 Further Assurances	63
Section 7.10 Cash Collateral Accounts	64
ARTICLE VIII NEGATIVE COVENANTS	64
Section 8.1 Liens, Etc.	64

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TABLE OF CONTENTS
(continued)

	Page
Section 8.2 Restriction on Fundamental Changes	64
Section 8.3 Transactions with Affiliates	65
Section 8.4 Accounting Changes; Fiscal Year	65
Section 8.5 No Speculative Transactions	65
Section 8.6 Certain Agreements	65
ARTICLE IX EVENTS OF DEFAULT	65
Section 9.1 Events of Default	65
Section 9.2 Remedies	67
Section 9.3 Actions in Respect of Letters of Credit	67
Section 9.4 Rescission	68
ARTICLE X THE ADMINISTRATIVE AGENT	68
Section 10.1 Authorization and Action	68
Section 10.2 Administrative Agent’s Reliance, Etc.	69
Section 10.3 Posting of Approved Electronic Communications	70
Section 10.4 The Administrative Agent Individually	71
Section 10.5 Lender Credit Decision	71
Section 10.6 Indemnification	71
Section 10.7 Successor Administrative Agent	71
Section 10.8 Collateral and Guarantee Matters	72
ARTICLE XI MISCELLANEOUS	74
Section 11.1 Amendments, Waivers, Etc.	74
Section 11.2 Assignments and Participations	76
Section 11.3 Costs and Expenses	79
Section 11.4 Indemnities	80
Section 11.5 Limitation of Liability	81
Section 11.6 Right of Set-off	82
Section 11.7 Sharing of Payments, Etc.	82
Section 11.8 Notices, Etc.	83
Section 11.9 No Waiver; Remedies	85
Section 11.10 Binding Effect	85
Section 11.11 Governing Law	86
Section 11.12 Submission to Jurisdiction; Service of Process	86

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TABLE OF CONTENTS
(continued)

	Page
Section 11.13 Waiver of Jury Trial	86
Section 11.14 Marshaling; Payments Set Aside	86
Section 11.15 Section Titles	87
Section 11.16 Patriot Act Notice	87
Section 11.17 Execution in Counterparts	87
Section 11.18 Entire Agreement	87
Section 11.19 Confidentiality	87

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TABLE OF CONTENTS
(continued)

			Page
		Schedules
Schedule I	—	Commitments
Schedule II	—	Applicable Lending Offices and Addresses for Notices
Schedule 4.2	—	Consents
Schedule 4.3	—	Ownership of Subsidiaries
Schedule 4.7	—	Litigation
		Exhibits
Exhibit A	—	Form of Assignment and Acceptance
Exhibit B	—	Form of Note
Exhibit C	—	Form of Notice of Borrowing
Exhibit D	—	Form of Letter of Credit Request
Exhibit E	—	Form of Notice of Conversion or Continuation
Exhibit F-1	—	Form of Opinion of Counsel for the Borrower and Holdings
Exhibit F-2	—	Form of Opinion of Delaware Counsel for the Borrower and Holdings
Exhibit F-3	—	Form of Opinion of General Counsel
Exhibit G	—	Form of Guaranty
Exhibit H	—	Form of Pledge Agreement
Exhibit I-1	—	Form of GMAC Consent
Exhibit I-2	—	Form of Balfour Beatty Consent

 v

          Credit Agreement, dated as of November 11, 2005, among Macquarie Infrastructure Company Inc., a Delaware corporation (doing business in New York as Macquarie Infrastructure Company (US)), as borrower (the “Borrower”), Macquarie Infrastructure Company LLC, a Delaware limited liability company (“Holdings”), the Lenders (as defined below), the Issuers (as defined below) and Citicorp North America, Inc. (“Citicorp”), as agent for the Lenders and the Issuers (in such capacity, and as agent for the Secured Parties under the Collateral Documents (each as defined below), the “Administrative Agent”).

W i t n e s s e t h

          Whereas, the Borrower has requested that the Lenders and Issuers make available for the purposes specified in this Agreement, a revolving credit and letter of credit facility; and

          Whereas, the Lenders and Issuers are willing to make available to the Borrower such revolving credit and letter of credit facility 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 acquisition by Holdings, the Borrower or any of their respective Subsidiaries of all or substantially all of the assets or Stock of any Person or any operating division thereof by way of a merger, consolidation or otherwise.

          “Adjusted Cash From Operations” means, for any Measurement Period, on a Consolidated basis and subject to Section 1.3 (Accounting Terms and Principles):

          (a) Consolidated Net Cash From Operating Activities of MICT and its Subsidiaries during such Measurement Period, plus

          (b) the aggregate amount of any base management or performance fees that were paid by MICT or any of its Subsidiaries to MI Management pursuant to the terms of the Management Services Agreement that were reinvested by MI Management in MICT or any of its Subsidiaries during such Measurement Period by way of a purchase of the Stock or Stock Equivalents of MICT or any of its Subsidiaries, plus

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          (c) the aggregate amount of any Restricted Payments received from any Investment held by MICT or any of its Subsidiaries during such Measurement Period to the extent included in Consolidated Net Cash From Investment Activities of MICT and its Subsidiaries during such Measurement Period, plus

          (d) the aggregate amount of any repayments of principal of any Indebtedness owed by any Person to MICT or any of its Subsidiaries during such Measurement Period to the extent included in Consolidated Net Cash From Investment Activities of MICT and its Subsidiaries during such Measurement Period, less

          (e) the aggregate amount of Capital Expenditures incurred by MICT or any of its Subsidiaries in the ordinary course of business in connection with the maintenance of its properties and assets during such Measurement Period, less

          (f) the portion of Consolidated Net Cash From Operating Activities attributable to any Subsidiary of Holdings during such Measurement Period to the extent that on the relevant Calculation Date, such Subsidiary is not permitted by the terms of any Contractual Obligation governing Indebtedness of such Subsidiary to make Restricted Payments to MICT or any of its Subsidiaries , less

          (g) the aggregate amount of any Restricted Payments received from any non-Consolidated Investment of MICT or any of its Subsidiaries during such Measurement Period to the extent that on the relevant Calculation Date, the Person that made such Restricted Payment is not permitted to make Restricted Payments to MICT or any of its Subsidiaries pursuant to the terms of any Contractual Obligation governing Indebtedness of such recipient Person, less

          (h) the aggregate amount of any payments of principal and interest in respect of any Indebtedness owed by any Person to MICT or any of its Subsidiaries during such Measurement Period to the extent that on the relevant Calculation Date the Person which made such payment would be prohibited pursuant to the terms of any Contractual Obligation governing Indebtedness of such Person from making such payment in the event that such payment were due on such Calculation Date; less

          (i) pro forma interest expense associated with any Debt Issuance of any Subsidiary of Holdings other than the Borrower during such Measurement Period for the period commencing on the first day of such Measurement Period and ending on the date of such Debt Issuance calculated using the interest rate applicable to the Indebtedness incurred in connection with such Debt Issuance as of the relevant Calculation Date, less

          (j) Consolidated Net Cash From Operating Activities and Consolidated Net Cash From Investment Activities of MICT and its Subsidiaries generated by any asset of any Subsidiary of MICT during such Measurement Period which asset was the subject of an Asset Sale (other than an Excluded Asset Sale) by such Subsidiary during such Measurement Period, less

          (k) the aggregate amount of (i) any scheduled repayments of principal of any Indebtedness owed by MICT or any of its Subsidiaries other than (A) any such repayment made in respect of any Financial Covenant Debt of any Loan Party or (B) any such repayments of principal made with the proceeds from the incurrence of any Indebtedness (other than Financial Covenant Debt of any Loan Party) incurred by MICT or any of its Subsidiaries and (ii) payments

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in respect of the principal component of any Capital Lease of MICT or any of its Subsidiaries during such Measurement Period, plus

          (l) the aggregate amount of Cash Interest Expense of any Loan Party in respect of any Financial Covenant Debt of any Loan Party during such Measurement Period;

          provided, however, in the event of any bankruptcy or other insolvency event of any Subsidiary of MICT occurring or otherwise existing during such Measurement Period, “Adjusted Cash From Operations” shall not include that portion of Adjusted Cash From Operations attributable to such Subsidiary for such Measurement Period.

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

          “Affected Lender” has the meaning specified in Section 2.16 (Substitution of Lenders).

          “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, each officer, director, general partner or joint-venturer of such Person, and each Person that is the beneficial owner of 10% or more of any class of Voting Stock of such Person. For the purposes of this definition, “control” (including the terms “controlling,” “controlled by,” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

          “Agent Affiliate” has the meaning specified in Section 10.3 (Posting of Approved Electronic Communications).

          “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, with respect to (a) Loans maintained as Base Rate Loans, a rate equal to 0.25% per annum and (b) Loans maintained as Eurodollar Rate Loans, a rate equal to 1.25% per annum.

          “Applicable Unused Commitment Fee Rate” means 0.25% per annum.

          “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 supplement to the Guaranty, 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; provided, however, that, “Approved Electronic Communication” shall exclude (i) any Notice of Borrowing, Letter of Credit Request, Notice of Conversion or Continuation, and any

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other notice, demand, communication, information, document and other material relating to a request for a new, or a conversion of an existing, Borrowing, (ii) any notice pursuant to Section 2.7 (Optional Prepayments) and Section 2.8 (Mandatory Prepayments) and any other notice relating to the payment of any principal or other amount due under any Loan Document prior to the scheduled date therefor, (iii) all notices of any Default or Event of Default and (iv) any notice, demand, communication, information, document and other material required to be delivered to satisfy any of the conditions set forth in Article III (Conditions To Loans And Letters Of Credit) or Section 2.3(a) (Letters of Credit)or any other condition to any Borrowing or other extension of credit hereunder or any condition precedent to the effectiveness of this Agreement.

          “Approved Electronic Platform” has the meaning specified in Section 10.3 (Posting of Approved Electronic Communications).

          “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 runner.

          “Asset Sale” means the sale, conveyance, transfer, license, lease or other disposition of any property or any interest therein by any Person (including the sale or factoring at maturity or collection of any accounts); provided that for the avoidance of doubt, the granting of a Lien on any such property or interest therein shall not in and of itself constitute an “Asset Sale”.

          “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 (Form of Assignment and Acceptance).

          “Available Credit” means, at any time, (a) the then effective Commitments minus (b) the aggregate Outstandings at such time.

          “Balfour Beatty Consent” has the meaning specified in Section 10.8(f) (Collateral and Guarantee Matters).

          “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 highest 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) 0.50% per annum plus the Federal Funds Rate.

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

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

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          “Borrower’s Accountants” means KPMG LLP or other independent nationally-recognized public accountants reasonably acceptable to the Administrative Agent, provided, that any such nationally recognized public accounting firm that is a “big 4” accounting firm shall be deemed acceptable to the Administrative Agent.

          “Borrowing” means a borrowing consisting of Loans made on the same day by the Lenders ratably according to their respective Commitments.

          “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.

          “Calculation Date” means the last day of each Fiscal Quarter of MICT commencing with the last day of the Fiscal Quarter ending December 31, 2005.

          “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 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 under Capital Leases.

          “Cash Collateral Account” means any Deposit Account or Securities Account that is (a) established by the Administrative Agent from time to time in its sole discretion to receive cash and Cash Equivalents (or purchase cash or Cash Equivalents with funds received) from the Loan Parties or Persons acting on their behalf pursuant to the Loan Documents, (b) with such depositaries and securities intermediaries as the Administrative Agent may determine in its sole discretion, (c) in the name of the Administrative Agent (although such account may also have words referring to the Borrower and the account’s purpose), (d) under the control of the Administrative Agent and (e) in the case of a Securities Account, with respect to which the Administrative Agent shall be the Entitlement Holder and the only Person authorized to give Entitlement Orders with respect thereto.

          “Cash Equivalents” means (a) securities issued or fully guaranteed or insured by the United States federal government or any agency thereof, (b) certificates of deposit, eurodollar time deposits, overnight bank deposits and bankers’ acceptances of any Lender or any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies (fully protected against currency fluctuations) that, at the time of acquisition, are rated at least “A-1” by S&P or “P-1” by Moody’s, (c) commercial paper of an issuer rated at least “A-1” by S&P or “P-1” by Moody’s and (d) shares of any money market fund that (i) has at least 95% of its assets invested continuously in the types of investments referred to in clauses (a), (b) and (c) above, (ii) has net assets in

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excess of $500,000,000 and (iii) is rated at least “A-1” by S&P or “P-1” by Moody’s; provided, however, that the maturities of all obligations of the type specified in clauses (a), (b) and (c) above shall not exceed 180 days.

          “Cash Interest Expense” means, with respect to any Loan Party for any Measurement Period, the Interest Expense of such Loan Party for such Measurement Period less the Non-Cash Interest Expense of such Loan Party for such Measurement Period.

          “CFC” means any Subsidiary (other than any (a) Initial Pledged Entity and (b) Subsidiary of Holdings that owns the Stock of the Borrower) of any Loan Party that would be a “controlled foreign corporation” under Section 957 of the Code or any Subsidiary of a Loan Party whose principal assets consist of Stock or other Stock Equivalents of a Person that would be a “controlled foreign corporation” under Section 957 of the Code.

          “Change of Control” means the occurrence of any of the following:

          (a) any person or group of persons (within the meaning of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended) of 50% or more of the issued and outstanding Voting Stock of MICT or, to the extent MICT is terminated in accordance with the terms of the Trust Agreement, Holdings, in each case, on a fully diluted basis;

          (b) during any period of twelve consecutive calendar months, individuals who, at the beginning of such period, constituted the board of directors (or equivalent governing body) of Holdings (together with any new directors whose election by the board of directors of Holdings or whose nomination for election by the stockholders of Holdings was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose elections or nomination for election was previously so approved) cease for any reason other than death or disability to constitute a majority of the directors then in office;

          (c) MICT shall cease to own and control all of the economic and voting rights associated with all of the outstanding Stock of Holdings, other than to the extent MICT is terminated in accordance with the terms of the Trust Agreement;

          (d) Holdings shall cease to own and control all of the economic and voting rights associated with all of the outstanding Stock of the Borrower; or

          (e) MI Management or Macquarie Bank Limited or any fund or other Person (other than an individual) reasonably acceptable to the Administrative Agent that is a Subsidiary of (or managed by a Subsidiary of) Macquarie Bank Limited, shall cease to manage the business and operations of Holdings and its Subsidiaries; provided, that any such fund or other Person that is a Subsidiary of (or managed by a Subsidiary of) Macquarie Bank Limited that has, at the relevant time, at least substantially the same resources and expertise available to it through Macquarie Bank Limited as are available to MI Management on the Closing Date (as certified to the Administrative Agent by a Responsible Officer of the Borrower) shall be deemed reasonably acceptable to the Administrative Agent.

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          “Change of Control Consents” means any approvals or consents required to be obtained by MICT or any of its Subsidiaries under (a) any Contractual Obligation of MICT or such Subsidiary or (b) Requirement of Law applicable to MICT or such Subsidiary, in each case, in connection with any pledge, sale, disposition or other transfer of ownership interests or exercise of voting rights or other remedies in respect of any Stock or Stock Equivalents constituting part of the Collateral.

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

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

          “Closing Date” means the date on which this Agreement shall have become effective in accordance with Section 3.1 (Conditions Precedent to Effectiveness).

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

          “Collateral” means all property and interests in property and proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a Lien is granted under any Collateral Document.

          “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.

          “Collateral Letter” means that certain letter agreement dated as of the Closing Date by and among the Borrower, Holdings, each Person that is a Lender or an Issuer on the Closing Date and the Administrative Agent relating to certain Enforcement Actions with respect to the Collateral.

          “Commitment” means, with respect to any Lender, the commitment of such Lender to make Loans and acquire interests in other Outstandings in the aggregate principal amount outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule I (Commitments) under the caption “Commitment,” as amended to reflect each Assignment and Acceptance executed by such Lender and as such amount may be reduced pursuant to this Agreement.

          “Compliance Certificate” has the meaning specified in Section 6.1(c) (Financial Statements).

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

          “Consolidated Net Cash From Investment Activities” means the amount reported on the Consolidated statement of cash flows of MICT for the line item entitled “net cash provided by investment activities” or any equivalent line item, determined in accordance with GAAP and in a manner consistent with the methodologies used to calculate such amount in the audited financial statements of MICT referred to in Section 4.4 (Financial Statements).

          “Consolidated Net Cash From Operating Activities” means the amount reported on the Consolidated statement of cash flows of MICT for the line item entitled “net cash provided

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by operating activities” or any equivalent line item, determined in accordance with GAAP and in a manner consistent with the methodologies used to calculate such amount in the audited financial statements of MICT referred to in Section 4.4 (Financial Statements).

          “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, (b) the by-laws, operating agreement (or the equivalent governing documents) of such Person and (c) any document setting forth the manner of election or duties of the directors or managing members of such Person (if any) and the designation, amount or relative rights, limitations and preferences of any class or series of such Person’s Stock or Stock Equivalents.

          “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.

          “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 and payable 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;

     (b) 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) which secure amounts not overdue for a period of more than 60 days 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;

     (c) pledges and deposits made in the ordinary course of business in connection with workers’ compensation, 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;

          (d) Liens securing judgments for the payment of money not constituting an Event of Default under Section 9.1(g) (Events of Default) or securing appeal or other surety bonds related to such judgments; and

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          (e) Liens arising by virtue of any statutory or common law provision relating to bankers’ liens, rights of setoff or similar rights as to deposit accounts or other funds maintained with a credit or depository institution.

          “Debt Issuance” means the incurrence of Indebtedness of the type specified in clause (a) or (b) of the definition of “Indebtedness” by any Subsidiary of Holdings (other than the Borrower), other than Excluded Debt Issuances of such Person.

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

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

          “Documentary Letter of Credit” means any Letter of Credit that is drawable upon presentation of documents evidencing the sale or shipment of goods purchased by the Borrower or any of its Subsidiaries in the ordinary course of its business.

          “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 (Applicable Lending Offices and Addresses for Notices) 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 Borrower and the Administrative Agent.

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

          “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 Borrower) 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; provided, that no Affiliate of the Borrower shall constitute an Eligible Assignee at any time when the sale, transfer, negotiation or assignment of Loans or Commitments to such Person would result in Affiliates of the Borrower that are Lenders holding, collectively, greater than or equal to 50% of the outstanding Loans or Commitments, as the case may be, under the Facility.

          “Enforcement Action” means any sale or other disposition or exercise of voting rights by the Administrative Agent or any Secured Party (including by way of foreclosure) in respect of all or any part of the Collateral.

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

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          “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 worker health and 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, including the Industrial Site Recovery Act (N.J. Stat. Ann. § 13:1K-6 et seq.).

          “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, worker 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.

          “Equity Issuance” means the issuance or sale of any Stock of MICT or any of its Subsidiaries.

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

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

          “Eurodollar Base Rate” means, with respect to any Interest Period for any Eurodollar Rate Loan, the rate determined by the Administrative Agent to be the offered rate for deposits in Dollars for the applicable Interest Period appearing on the Dow Jones Markets Telerate Page 3750 as of 11:00 a.m., London time, on the second full Business Day next preceding the first day of each Interest Period. In the event that such rate does not appear on the Dow Jones Markets Telerate Page 3750 (or otherwise on the Dow Jones Markets screen), the Eurodollar Base Rate for the purposes of this definition shall be determined by reference to such other comparable publicly available service for displaying eurodollar rates as may be selected by

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the Administrative Agent or, in the absence of such availability, the Eurodollar Base Rate shall be the rate of interest determined by the Administrative Agent to be the rate per annum at which deposits in Dollars are offered by the principal office of Citibank in London to major banks in the London interbank market at 11:00 a.m. (London time) two Business Days before the first day of such Interest Period in an amount substantially equal to the Eurodollar Rate Loan of Citibank for a period equal to such Interest Period.

          “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 (Applicable Lending Offices and Addresses for Notices) 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 Borrower and the Administrative Agent.

          “Eurodollar Rate” means, with respect to any Interest Period for any Eurodollar Rate Loan, an interest rate per annum equal to the rate per annum obtained by dividing (a) the Eurodollar Base Rate by (b)(i) a percentage equal to 100% minus (ii) the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the Eurodollar Rate is determined) having a term equal to 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 (Events of Default).

          “Excluded Asset Sale” means each of the following Asset Sales:

     (a) the sale or other disposition of property that has become obsolete or worn out or is replaced in the ordinary course of business or which in the good faith judgment of the Borrower, Holdings or the relevant Subsidiary is no longer useful in such Person’s business;

     (b) the sale or other disposition of Cash Equivalents, Inventory or other goods or services, in each case in the ordinary course of business;

     (c) sales or other dispositions by the Borrower, Holdings or any Subsidiary of Holdings to the Borrower, Holdings or any Subsidiary of any thereof;

     (d) sales or other dispositions of property in connection with a foreclosure, transfer or deed in lieu of foreclosure or other exercise of remedial action;

     (e) sales or other dispositions of property by any Subsidiary of the Borrower or Holdings, the proceeds of which are required to be used to repay Indebtedness of such Subsidiary (or any direct or indirect parent company of such Subsidiary other than a Loan Party) by the documentation governing such Indebtedness;

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     (f) sales of Real Property or Equipment to the extent that such Real Property or Equipment is exchanged for credit against the purchase price of similar replacement Real Property or Equipment;

     (g) sales of accounts receivable and other rights to payment for collection purposes;

     (h) assignments and licenses of intellectual property of Holdings and its Subsidiaries in the ordinary course of business; and

     (i) a true lease or sublease of Real Property not constituting Indebtedness and not constituting a sale and leaseback transaction;

          provided, however, that notwithstanding anything to the contrary in the foregoing, no sale or disposition of Collateral shall be deemed to be an “Excluded Asset Sale”.

          “Excluded Debt Issuance” means each of the following Debt Issuances:

     (a) Qualified Acquisition Debt;

     (b) Indebtedness incurred by any Loan Party to the extent such Indebtedness is permitted to be incurred hereunder;

     (c) Indebtedness to finance the acquisition, construction or improvement of fixed assets or other Capital Expenditures in the ordinary course of business by Holdings or any of its Subsidiaries; provided, that for the avoidance of doubt, the acquisition, construction or improvement of fixed assets, or other Capital Expenditures relating to property, that are in the same line of business (or reasonably incidental thereto) as the principal business of such Subsidiary shall be deemed to be in the ordinary course of business of such Subsidiary for purposes of determining whether such Indebtedness constitutes an “Excluded Debt Issuance”;

     (d) Indebtedness incurred in the ordinary course of business and applied to finance working capital of Holdings and its Subsidiaries;

     (e) Indebtedness arising from intercompany loans among any of Holdings and its Subsidiaries;

     (f) Indebtedness of any Person that becomes a direct or indirect Subsidiary of Holdings after the date hereof which Indebtedness is outstanding at the time such Person becomes a Subsidiary; provided, that such Indebtedness is not (i) incurred in contemplation of such Person becoming a Subsidiary of Holdings and (ii) is not guaranteed by any Loan Party; and

     (g) Renewals, extensions, refinancings and refunds of Indebtedness of Holdings or any of its Subsidiaries outstanding on the date hereof; provided, however, that any such renewal, extension, refinancing or refund is in an aggregate principal amount not greater than the sum of (i) the principal amount of the Indebtedness being renewed, extended, refinanced or refunded, (ii) the amount of any accrued and unpaid interest in respect of such principal amount, (iii) any prepayment, early termination or

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call premium paid in connection with the foregoing and (iv) the amount of any reasonable fees and expenses incurred by such Person in connection therewith; provided, further, however, that for the avoidance of doubt, to the extent that the principal amount of the Indebtedness incurred in connection with the renewal, extension, refinancing or refunding of any Indebtedness of Holdings or any of its Subsidiaries exceeds the sum of the amounts contemplated by clauses (i) through (iv) above, the amount of such excess Indebtedness incurred by Holdings or any such Subsidiary shall not constitute an “Excluded Debt Issuance”.

          “Excluded Equity” has the meaning set forth in the Pledge Agreement.

          “Excluded Equity Issuance” means each of the following Equity Issuances:

     (a) the issuance or sale of Stock by MICT or any of its Subsidiaries to any Person that is the parent of such Person, which issuance or sale is made in consideration of a contribution to the equity capital of such Person from such parent;

     (b) the issuance of common stock by MICT or any of its Subsidiaries occurring in the ordinary course of business to any director, member of management, or employee of MICT or any of its Subsidiaries;

     (c) the issuance or sale of Stock by any Subsidiary of Holdings (other than the Borrower), the proceeds of which are required to be used to repay Indebtedness of such Subsidiary (or, in the case of non-Consolidated Investments, any direct or indirect parent company of such Subsidiary that is not a Loan Party) by the documentation governing such Indebtedness; and

     (d) the issuance or sale of Stock by MICT or any Loan Party to MI Management or any successor thereto, as manager under the Management Services Agreement pursuant to the terms of the Management Services Agreement.

          “Excluded Property Loss Event” means any Property Loss Event, the proceeds of which are required to be used to prepay Indebtedness of Holdings or any of its Subsidiaries (or, in the case of non-Consolidated Investments, any direct or indirect parent company of such Subsidiary that is not a Loan Party) by the documentation governing such Indebtedness.

          “Excluded Entity” has the meaning set forth in Section 1.3(d) (Accounting Terms and Principles).

          “Facility” means the Commitments and the provisions herein related to the Loans and Letters of Credit.

          “Facility Termination Date” means the earliest of (a) the Scheduled Termination Date, (b) the date of termination of all of the Commitments pursuant to Section 2.4 (Reduction and Termination of the Commitments) and (c) the date on which the Obligations become due and payable pursuant to Section 9.2 (Remedies).

          “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

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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” means the commitment letter agreement dated as of August 30, 2005, addressed to the Borrower and Holdings from Citigroup Global Markets Inc. and accepted by the Borrower and Holdings on August 30, 2005, with respect to, among other things, certain fees to be paid from time to time to the Administrative Agent.

          “Financial Covenant Debt” of any Person means Indebtedness of the type specified in clauses (a), (b), (d), (e), (f) and (h) of the definition of “Indebtedness” and non-contingent obligations of the type specified in clause (c) of such definition; provided, that “Indebtedness” shall not include Indebtedness owing by Holdings or the Borrower to the Borrower, Holdings or any of its Subsidiaries.

          “Financial Statements” means the financial statements of the Borrower and its Subsidiaries delivered in accordance with Section 4.4 (Financial Statements) and Section 6.1 (Financial Statements).

          “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.

          “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.

          “GMAC Consent” has the meaning specified in Section 10.8(e) (Collateral and Guarantee Matters).

          “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.

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          “Guarantor” means, collectively, Holdings and each other Person that becomes a Guarantor pursuant to Section 7.8 (Additional Guarantees).

          “Guaranty” means the guaranty, in substantially the form of Exhibit G (Form of Guaranty), executed by Holdings and each other Guarantor that becomes a party thereto.

          “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), co-making, discounting with recourse or sale 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), (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. 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 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” has the meaning specified in the preamble to this Agreement.

          “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 or that bear interest, (c) all reimbursement and all obligations with respect to letters of credit, bankers’ acceptances, surety bonds and performance bonds, whether or not matured, (d) all indebtedness for the deferred purchase price of property or services, other than trade payables (which, for the avoidance of doubt, shall include payables to MI Management pursuant to the terms of the Management Services Agreement) incurred in the ordinary course of business that are not overdue, (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

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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) all payments that such Person would have to make in the event of an early termination on the date Indebtedness of such Person is being determined in respect of Hedging Contracts of such Person 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.

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

          “Indemnitee” has the meaning specified in Section 11.4 (Indemnities).

          “Initial Pledged Entities” means each of the Borrower, Macquarie FBO Holdings LLC, a Delaware limited liability company, Macquarie District Energy Holdings LLC, a Delaware limited liability company, Macquarie Americas Parking Corporation, a Delaware corporation, Macquarie Yorkshire LLC, a Delaware limited liability company, South East Water LLC, a Delaware limited liability company, Communications Infrastructure LLC, a Delaware limited liability company and Macquarie Gas Holdings LLC, a Delaware limited liability company.

          “Interest Coverage Ratio” means, for any Measurement Period, the ratio of (a) Adjusted Cash From Operations for such Measurement Period to (b) Cash Interest Expense in respect of Financial Covenant Debt of any Loan Party for such Measurement Period.

          “Interest Expense” means, for any Loan Party for any Measurement Period, (a) Consolidated total interest expense of such Loan Party for such Measurement Period and including, in any event, interest capitalized during such Measurement Period and net costs under Interest Rate Contracts for such Measurement Period minus (b) Consolidated net gains of such Loan Party under Interest Rate Contracts for such Measurement Period.

          “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 one, two, three or six months thereafter, as selected by the Borrower in its Notice of Borrowing or Notice of Conversion or Continuation given to the Administrative Agent pursuant to Section 2.2 (Borrowing Procedures) or Section 2.10 (Conversion/Continuation Option) and (b) thereafter, if such Loan is continued, in whole or in part, as a Eurodollar Rate Loan pursuant to Section 2.10 (Conversion/Continuation Option), a period commencing on the last day of the immediately preceding Interest Period therefor and ending one, two, three or six months thereafter, as selected by the Borrower in its Notice of Conversion or Continuation given to the Administrative Agent pursuant to Section 2.10 (Conversion/Continuation Option); provided, however, that all of the foregoing provisions relating to Interest Periods in respect of Eurodollar Rate Loans are subject to the following:

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     (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) 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 Borrower may not select any Interest Period that ends after the date of a scheduled principal payment on the Loans as set forth in Article II (The Facility) unless, after giving effect to such selection, the aggregate unpaid principal amount of the Loans for which Interest Periods end after such scheduled principal payment shall be equal to or less than the principal amount to which the Loans are required to be reduced after such scheduled principal payment is made; and

     (iv) there shall be outstanding at any one time no more than six Interest Periods in the aggregate.

          “Interest Rate Contracts” means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance.

          “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.

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

          “Issue” means, with respect to any Letter of Credit, to issue, extend the expiry of, renew or increase the maximum face amount (including by deleting or reducing any scheduled decrease in such maximum face amount) of, such Letter of Credit. The terms “Issued” and “Issuance” shall have a corresponding meaning.

          “Issuer” means (a) each of Citicorp, Credit Suisse and Macquarie Bank Limited (or Affiliates of any of them, including, in the case of Citicorp, Citibank), each in their respective capacities as issuers of Letters of Credit hereunder and (b) each other Lender or Affiliate of a

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Lender that hereafter becomes an Issuer with the approval of the Administrative Agent and the Borrower by agreeing pursuant to an agreement with and in form and substance satisfactory to the Administrative Agent and the Borrower to be bound by the terms hereof applicable to Issuers.

          “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 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.

          “Letter of Credit” means any letter of credit Issued pursuant to Section 2.3 (Letters of Credit).

          “Letter of Credit Obligations” means, at any time, the aggregate of all liabilities at such time of the Borrower to all Issuers with respect to Letters of Credit, whether or not any such liability is contingent, including, without duplication, the sum of (a) the Reimbursement Obligations at such time and (b) the Letter of Credit Undrawn Amounts at such time.

          “Letter of Credit Reimbursement Agreement” has the meaning specified in Section 2.3(a) (Letters of Credit).

          “Letter of Credit Request” has the meaning specified in Section 2.3(c) (Letters of Credit).

          “Letter of Credit Sublimit” means an amount equal to the aggregate amount of the Commitments in effect from time to time. The Letter of Credit Sublimit is part of, and not in addition to, the Commitments.

          “Letter of Credit Undrawn Amounts” means, at any time, the aggregate undrawn face amount of all Letters of Credit outstanding at such time.

          “Leverage Ratio” means, as of any Calculation Date, the ratio of (a) Financial Covenant Debt of Holdings and the Borrower outstanding as of such Calculation Date to (b) Adjusted Cash From Operations for the Measurement Period ending on such Calculation Date.

          “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, 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, and the filing of any financing statement under the UCC or comparable law of any jurisdiction naming the owner of the asset to which such Lien relates as debtor.

          “Loan” has the meaning specified in Section 2.1 (The Commitments).

          “Loan Documents” means, collectively, this Agreement, the Notes (if any), the Guaranty, the Fee Letter, each Letter of Credit Reimbursement Agreement, the Collateral

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Documents and, to the extent designated in writing as a Loan Document by the Borrower and the Administrative Agent, each certificate, agreement or document executed by a Loan Party and delivered to the Administrative Agent or any Lender in connection with or pursuant to any of the foregoing.

          “Loan Party” means each of the Borrower, Holdings and each other Person, if any, that becomes a Guarantor.

          “Management Services Agreement” means that certain Management Services Agreement, dated December 21, 2004, by and between Holdings, certain Subsidiaries of Holdings and MI Management, as in effect on the Closing Date and as may be amended, modified or otherwise supplemented from time to time in accordance with Section 8.6 (Certain Agreements).

          “Mandatory Prepayment Date” has the meaning specified in Section 2.8 (Mandatory Prepayments).

          “Material Adverse Change” means a material adverse change in the operations, assets, financial condition or business of the Borrower and Holdings, taken as a whole.

          “Material Adverse Effect” means a material adverse effect on (a) the operations, assets, financial condition or business of the Borrower and Holdings, taken as a whole and (b) the legality, validity or enforceability of any Loan Document against the Borrower or any other Loan Party which would have a material adverse effect on the rights, remedies and benefits available to or conferred upon the Administrative Agent, the Lenders or the Issuers thereunder, taken as whole; provided, that the inclusion in certain Contractual Obligations of Subsidiaries of the Loan Parties of provisions giving the counterparty thereto the right to terminate such Contractual Obligation upon the occurrence of a “change of control” or similar event in connection with an Enforcement Action shall not, in and of themselves be deemed a material adverse effect on the rights, remedies and benefits available to or conferred upon the Administrative Agent, the Lenders or the Issuers thereunder, taken as a whole.

          “Measurement Period” means, with respect to any Calculation Date, each period of four consecutive Fiscal Quarters of MICT ending (or most recently then ended) on such Calculation Date, or, if less than four consecutive Fiscal Quarters of MICT have been completed since December 21, 2004, each Fiscal Quarter of MICT that has been completed since December 21, 2004; provided, that, for purposes of determining the amount of Adjusted Cash From Operations included in the calculation of the Leverage Ratio for the Fiscal Quarter ended September 30, 2005, such amount for the Measurement Period then ended shall equal the amount of Adjusted Cash From Operations for the three consecutive Fiscal Quarters then ended multiplied by 4/3.

          “MIC Group” means MICT and its Subsidiaries.

          “MICT” means Macquarie Infrastructure Company Trust, a statutory trust organized under the laws of the state of Delaware.

          “MI Management” means Macquarie Infrastructure Management (USA) Inc, a Delaware corporation.

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

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          “Net Cash Proceeds” means proceeds received by Holdings, the Borrower or any of their respective Subsidiaries after the Closing Date in cash or Cash Equivalents from any (a) Asset Sale, other than an Excluded Asset Sale, net of (i) the reasonable cash costs of sale, assignment or other disposition (including, without limitation, sales and commission fees and legal, accounting and investment banking fees), (ii) taxes paid or reasonably estimated to be payable as a result thereof, (iii) appropriate amounts to be retained by such Person as a reserve, in accordance with GAAP, against liabilities associated with such Asset Sale, including liabilities under any indemnification obligations associated with such Asset Sale; provided, that if and to the extent such reserves are no longer required to be maintained in accordance with GAAP, such amounts shall constitute Net Cash Proceeds to the extent such amounts would have otherwise constituted Net Cash Proceeds under this clause (a), and (iv) any amount required to be paid or prepaid on Indebtedness (other than the Obligations) of Holdings or any of its Subsidiaries (or, in the case of non-Consolidated Investments, any direct or indirect parent company of such Subsidiary that is not a Loan Party) by the documentation governing such Indebtedness as a consequence of such Asset Sale, provided, however, that reasonable evidence of each of clauses (i), (ii), (iii) and (iv) above is provided to the Administrative Agent in form and substance reasonably satisfactory to it, (b) Property Loss Event (other than an Excluded Property Loss Event) net of (i) taxes paid or reasonably estimated to be payable as a result thereof and (ii) appropriate amounts to be retained by such Person as a reserve, in accordance with GAAP, against liabilities associated with such property; provided, however, that reasonable evidence of each of clauses (i) and (ii) above is provided to the Administrative Agent in form and substance reasonably satisfactory to it, or (c)(i) Equity Issuance (other than any Excluded Equity Issuance) or (ii) any Debt Issuance (other than any Excluded Debt Issuance), in each case net of brokers’ and advisors’ fees and other costs incurred in connection with such transaction; provided, however, that in the case of this clause (c), reasonable evidence of such costs is provided to the Administrative Agent in form and substance reasonably satisfactory to it.

          “Non-Cash Interest Expense” means, with respect to any Loan Party for any Measurement Period, the sum of the following amounts to the extent included in the definition of Interest Expense (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 of any Loan Party, (c) interest payable in evidences of Indebtedness or by 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) (Amendments, Waivers, Etc.).

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

          “Non-U.S. Lender” means each Lender or Issuer (or the Administrative Agent) that is not a Domestic Person.

          “Note” means any promissory note of the Borrower payable to the order of any Lender in a principal amount equal to the amount of such Lender’s Commitment evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Loans owing to such Lender.

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

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          “Notice of Conversion or Continuation” has the meaning specified in Section 2.10 (Conversion/Continuation Option).

          “Obligations” means the Loans, the Letter of Credit Obligations and all other amounts, obligations, covenants and duties owing by the Borrower to the Administrative Agent, any Lender, any Issuer, 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 or any other Loan Document, whether direct or indirect (including those acquired by assignment), 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 of credit, cash management and other fees, interest, charges, expenses, attorneys’ fees and disbursements, and other sums chargeable to the Borrower under this Agreement or any other Loan Document and all obligations of the Borrower under any Loan Document to provide cash collateral for any Letter of Credit Obligation.

          “Outstandings” means, at any particular time, the sum of (a) the principal amount of the Loans outstanding at such time and (b) the Letter of Credit Obligations outstanding at such time.

          “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into Law October 26, 2001)).

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

          “Permitted Affiliate Transactions” means, collectively, (a) transactions with Affiliates involving consideration of less than $1,000,000 individually and $10,000,000 in the aggregate for all such transactions; (b) transactions with Affiliates pursuant to Contractual Obligations in effect on and as of the Closing Date as such Contractual Obligations may be amended, replaced or otherwise modified from time to time after the Closing Date to the extent such amendment, replacement or modification is not more disadvantageous to the interests of the Lenders, as reasonably determined in good faith by the Board of Directors (or equivalent governing body) (or any committee thereof) of Holdings, the Borrower or any other Loan Party, as applicable; (c) loans or advances to employees or officers of Holdings, the Borrower or any Subsidiaries of Holdings 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; (d) reasonable and customary (as determined in good faith by the Board of Directors (or equivalent governing body) (or any committee thereof) of Holdings, the Borrower or any other Loan Party, as applicable) fees, and other compensation payable to (and indemnities provided on behalf of) officers, directors, employees, advisors and consultants of Holdings, the Borrower or any such other Loan Party; (e) transactions among Holdings, the Borrower and their respective Subsidiaries; (f) transactions with Affiliates in connection with any non-Consolidated Investment of Holdings if Holdings, the Borrower or any other Loan Party participates in the ordinary course of business and on a basis no less advantageous than the basis on which the owners of the other Stock of such non-Consolidated Investment participate in such transaction; (g) agreements with MICT, Holdings or any Subsidiary of Holdings to provide for the commercially reasonable and

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           equitable allocation of shared costs and expenses (including corporate overhead costs and expenses) of the MIC Group and (h) the Loans or other extensions of credit made to the Borrower by Macquarie Bank Limited in its capacity as a Lender or an Issuer pursuant to this Agreement and the other Loan Documents.

          “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 H (Form of Pledge Agreement), executed by the Borrower and each Guarantor.

          “Pledged Stock” has the meaning specified in the Pledge Agreement and shall include, as of the Closing Date, the Stock and Stock Equivalents of the Initial Pledged Entities owned by Holdings and the Borrower.

          “Pro Forma Basis” means, with respect to any calculation of compliance with any financial covenant or financial term, the calculation thereof in respect of the relevant Measurement Period after giving effect, on a pro forma basis, to each Acquisition and each Investment consummated during such Measurement Period (provided, that in the case of any Acquisition of, or Investment in, property or assets (other than Stock), such pro forma calculation shall only apply to each Fiscal Quarter during such Measurement Period for which historical financial results accounted for in accordance with GAAP for the property or assets so acquired are available) for which aggregate consideration paid by Holdings or any of its Subsidiaries shall be equal to or greater than $25,000,000, together with all transactions relating thereto consummated during such Measurement Period (including any incurrence, assumption, refinancing or repayment of Indebtedness), as if such Acquisition or Investment, as the case may be, and related transactions had been consummated on the first day of such Measurement Period, in each case, as determined in good faith by a Responsible Officer of Holdings and based on historical results accounted for in accordance with GAAP and, for any fiscal period ending on or prior to the first anniversary of such Acquisition or such Investment, may include adjustments to reflect operating expense and cost reductions reasonably expected to result from such Acquisition or such Investment, as the case may be, and related transactions less the amounts reasonably expected to be incurred by Holdings and its Subsidiaries to achieve such expense and cost savings and, to the extent practicable, adjustments in accordance with Regulation S-X of the Securities Act of 1933, to the extent that Holdings delivers to the Administrative Agent (a) a certificate of a Responsible Officer of Holdings setting forth such operating expense and cost reductions and the costs to achieve such reductions and (b) information and calculations supporting in reasonable detail such estimated operating expenses, cost reductions and the costs to achieve such reductions.

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

          “Projected Debt Service Coverage Ratio” means, with respect to any proposed Acquisition or Investment, the ratio of (a) the cash flow projected to be available from the proposed Acquisition or Investment to repay scheduled payments of principal and interest in respect of the applicable Qualified Acquisition Debt (determined based upon a base case model and calculations used by Holdings or any of its Subsidiaries in connection with such Acquisition or Investment (such model and calculations to be reasonably acceptable to the Administrative Agent), as the case may be, a copy of which shall have been delivered to the Administrative

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Agent) to (b) the scheduled payments of principal and interest in respect of the applicable Qualified Acquisition Debt (excluding any scheduled repayments of principal at the maturity of such Qualified Acquisition Debt).

          “Property Loss Event” means (a) any loss of or damage to property of Holdings or any of its Subsidiaries that results in the receipt by such Person of proceeds of insurance in excess of $5,000,000 (individually or in the aggregate) or (b) any taking of property of Holdings or any of its Subsidiaries that results in the receipt by such Person of a compensation payment in respect thereof in excess of $5,000,000 (individually or in the aggregate).

          “Purchasing Lender” has the meaning specified in Section 11.7 (Sharing of Payments, Etc.).

          “Qualified Acquisition Debt” means any Indebtedness incurred or assumed in connection with an Acquisition or Investment; provided, that (a) the amount of such Indebtedness does not exceed the sum of (i) the total consideration paid in respect of such Acquisition plus (ii) the amount of the fees and other out of pocket costs and expenses incurred in connection with such Acquisition and such Indebtedness; (b) after giving effect to such Indebtedness, the Projected Debt Service Coverage Ratio shall not be less than 1.00 to 1.00 for each full Fiscal Year thereafter occurring prior to the Scheduled Termination Date to the extent such Indebtedness remains outstanding and (c) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer certifying (together with the base case model and calculations used by Holdings or any of its Subsidiaries in connection with such Acquisition) that each of conditions specified in the foregoing clauses (a), and (b) have been satisfied.

          “Ratable Portion” or (other than in the expression “equally and ratably”) “ratably” means, with respect to any Lender, the percentage obtained by dividing (a) the Commitment of such Lender by (b) the aggregate Commitments of all Lenders (or, at any time after the Facility Termination Date, the percentage obtained by dividing the aggregate outstanding principal balance of the Outstandings owing to such Lender by the aggregate outstanding principal balance of the Outstandings 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.

          “Register” has the meaning specified in Section 2.6 (Evidence of Debt).

          “Reimbursement Date” has the meaning specified in Section 2.3(h) (Letters of Credit).

          “Reimbursement Obligations” means, as and when matured, the obligation of the Borrower to pay, on the date payment is made or scheduled to be made to the beneficiary under each such Letter of Credit (or at such other date as may be specified in the applicable Letter of

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           Credit Reimbursement Agreement), all amounts of each draft and other requests for payments drawn under Letters of Credit, and all other matured reimbursement or repayment obligations of the Borrower to any Issuer with respect to amounts drawn under Letters of Credit.

          “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, (a) at any time prior to the Facility Termination Date, at least three Lenders having, collectively, more than fifty percent (50%) of the aggregate outstanding amount of the Commitments and (b) after the Facility Termination Date, at least three Lenders having, collectively, more than fifty percent (50%) of the sum of the aggregate Outstandings. A Non-Funding Lender shall not be included in the calculation of “Requisite Lenders.”

          “Responsible Officer” means, with respect to any Person, any of the principal executive officers, 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 Person or any of its Subsidiaries 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 Person or any of its Subsidiaries now or hereafter outstanding.

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

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

          “Scheduled Termination Date” means March 31, 2008.

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

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

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

          “Securities Intermediary” has the meaning given to such term in the Pledge Agreement.

          “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 (Sharing of Payments, Etc.).

          “Solvent” means, with respect to any Person as of any date of determination, that, as of such date, (a) the fair value of the assets of such Person is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liabilities of such Person on its debts as they become matured, (c) such Person does not intend to, and does not believe that it will incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in a business or a transaction, and is not about to engage in a business or transaction, for which such Person’s assets would constitute an unreasonably small capital. 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.

          “Standby Letter of Credit” means any Letter of Credit that is not a Documentary Letter of Credit.

          “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.

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“Substitute Institution” has the meaning specified in Section 2.16 (Substitution of Lenders).

“Substitution Notice” has the meaning specified in Section 2.16 (Substitution of Lenders).

          “2004 S-1A” means the report on Form S-1/A (including all exhibits thereto) filed by MICT with the Securities and Exchange Commission on December 13, 2004.

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

          “Taxes” has the meaning specified in Section 2.15(a) (Taxes).

          “Trust Agreement” means that certain Second Amended and Restated Trust Agreement dated as of September 1, 2005, by and among, Holdings, as Sponsor, Wells Fargo Delaware Trust Company, as Delaware Trustee, and Peter Stokes, as Regular Trustee, as amended, modified or otherwise supplemented from time to time in accordance with its terms and the terms of this Agreement.

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

          “Unused Commitment Fee” has the meaning specified in Section 2.11(a) (Fees).

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

          “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.

          “Working Capital Sublimit” has the meaning specified in Section 4.12 (Use of Proceeds).

          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

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(Financial Covenants) 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 (Financial Statements) 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 the Borrower with the agreement of the Borrower’s Accountants and results in a change in any of the calculations required by Article V (Financial Covenants) or VIII (Negative Covenants) that would not have resulted had such accounting change not occurred, the parties hereto agree to enter into good faith negotiations in order to amend such provisions so as to equitably reflect such change such that the criteria for evaluating compliance with such covenants by the Borrower 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 (Financial Covenants) or VIII (Negative Covenants) shall be given effect until such provisions are amended to reflect such changes in GAAP.

          (c) For purposes of making all financial calculations to determine compliance with any financial covenant or financial term (including Article V (Financial Covenants) and Section 3.2(c) (Conditions Precedent to Each Loan and Letter of Credit)), 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 the Borrower or any of its Subsidiaries (including through Acquisitions) after the first day of the applicable Measurement Period and prior to the end of such Measurement Period, as determined in good faith by the Borrower on a Pro Forma Basis.

          (d) For purposes of making all financial calculations to determine compliance with any financial covenant or financial term (including Article V (Financial Covenants) and Section 3.2(c) (Conditions Precedent to Each Loan and Letter of Credit)) or for any other purpose hereunder, (i) the Financial Statements of MICT used to make such calculations shall be limited to those Financial Statements including only MICT, Holdings and Holdings’ Subsidiaries and (ii) to the extent that any such Financial Statements include financial information for any Person other than MICT, Holdings or Holdings’ Subsidiaries (each such Person, an “Excluded Entity”), all such financial calculations and Financial Statements shall be adjusted to exclude the financial information of each Excluded Entity.

          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.

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          (c) Each agreement 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) References in this Agreement to any statute shall be to such statute as amended or modified from time to time and to any successor legislation thereto, in each case as in effect at the time any such reference is operative.

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

          (f) The terms “Lender,” “Issuer” and “Administrative Agent” include, without limitation, their respective successors.

          (g) Upon the appointment of any successor Administrative Agent pursuant to Section 10.7 (Successor Administrative Agent), references to Citicorp in Section 10.4 (The Administrative Agent Individually) and to Citibank in the definitions of Base Rate and Eurodollar Rate 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 Facility

          Section 2.1 The Commitments

          On the terms and subject to the conditions contained in this Agreement, each Lender severally agrees to make loans in Dollars (each a “Loan”) to the Borrower from time to time on any Business Day during the period from the date hereof until the Facility Termination Date in an aggregate principal amount at any time outstanding for all such loans by such Lender not to exceed such Lender’s Commitment; provided, however, that at no time shall any Lender be obligated to make a Loan (a) in excess of such Lender’s Ratable Portion of the Available Credit or (b) for the purposes specified in Section 4.12(a)(ii) (Use of Proceeds) if the aggregate outstanding Loans and Letters of Credit used for the purposes specified in Section 4.12(a)(ii) (Use of Proceeds) would exceed the Working Capital Sublimit. Within the limits of the Commitment of each Lender, amounts of Loans repaid may be reborrowed under this Section 2.1.

          Section 2.2 Borrowing Procedures

          (a) Each Borrowing shall be made on notice given by the Borrower to the Administrative Agent not later than 11:00 a.m. (New York time) three Business Days prior to the date of the proposed Borrowing of Base Rate Loans or Eurodollar Rate Loans, as the case may be. Each such notice shall be in substantially the form of Exhibit C (Form of Notice of Borrowing) (a “Notice of Borrowing”), specifying, (A) the date of such proposed Borrowing, (B) the aggregate amount of such proposed Borrowing, (C) whether any portion of the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate Loans, (D) whether any proceeds of such Borrowing will be used for the purposes specified in Section 4.12(a)(ii) (Use of Proceeds), and if so, the utilized amount of the Working Capital Sublimit after giving effect to such

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Borrowing, and (E) for each Eurodollar Rate Loan, the initial Interest Period or Periods thereof. Loans shall be made as Base Rate Loans unless, subject to Section 2.13 (Special Provisions Governing Eurodollar Rate Loans), the Notice of Borrowing specifies that all or a portion thereof shall be Eurodollar Rate Loans. Each Borrowing shall be in an aggregate amount of not less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof.

          (b) The Administrative Agent shall give to each Lender prompt notice (and in any event within two Business Days of receipt) 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 2.13(a) (Determination of Interest Rate). Each Lender shall, before 1:00 p.m. (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 (Notices, Etc.), in immediately available funds, such Lender’s Ratable Portion of such proposed Borrowing. Upon fulfillment (or due waiver in accordance with Section 11.1 (Amendments, Waivers, Etc.)) (i) on the Closing Date, of the applicable conditions set forth in Section 3.1 (Conditions Precedent to Effectiveness) and (ii) at any time (including the Closing Date), of the applicable conditions set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit), and after the Administrative Agent’s receipt of such funds, the Administrative Agent shall make such funds available to the 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 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 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 Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of the 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 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 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”), including any payment in respect of its participation in Letter of Credit Obligations, 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.

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          Section 2.3 Letters of Credit

          (a) On the terms and subject to the conditions contained in this Agreement, each Issuer agrees to Issue at the request of the Borrower and for the account of the Borrower one or more Letters of Credit from time to time on any Business Day during the period commencing on the Closing Date and ending on the earlier of the Facility Termination Date and 30 days prior to the Scheduled Termination Date; provided, however, that no Issuer shall be under any obligation to Issue (and, upon the occurrence of any of the events described in clauses (ii), (iii), (iv), (v), and (vi)(A) below, shall not Issue) any Letter of Credit upon the occurrence of any of the following:

            (i) any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain such Issuer from Issuing such Letter of Credit or any Requirement of Law applicable to such Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuer shall prohibit, or request that such Issuer refrain from, the Issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuer with respect to such Letter of Credit any restriction or reserve or capital requirement (for which such Issuer is not otherwise compensated) not in effect on the date of this Agreement or result in any unreimbursed loss, cost or expense that was not applicable, in effect or known to such Issuer as of the date of this Agreement and that such Issuer in good faith deems material to it;

            (ii) such Issuer shall have received any written notice of the type described in clause (d) below;

            (iii) after giving effect to the Issuance of such Letter of Credit, (A) the aggregate Outstandings would exceed the aggregate Commitments in effect at such time or (B) the outstanding Loans and Letters of Credit used for the purpose specified in Section 4.12(a)(ii) (Use of Proceeds) would exceed the Working Capital Sublimit;

            (iv) after giving effect to the Issuance of such Letter of Credit, the sum of (i) the Letter of Credit Undrawn Amounts at such time and (ii) the Reimbursement Obligations at such time exceeds the Letter of Credit Sublimit;

            (v) such Letter of Credit is requested to be denominated in any currency other than Dollars; or

            (vi) (A) any fees due in connection with a requested Issuance have not been paid, (B) such Letter of Credit is requested to be Issued in a form that is not reasonably acceptable to such Issuer or (C) the Issuer for such Letter of Credit shall not have received, in form and substance reasonably acceptable to it and, if applicable, duly executed by such Borrower, applications, agreements and other documentation (collectively, a “Letter of Credit Reimbursement Agreement”) that such Issuer generally employs in the ordinary course of its business for the Issuance of letters of credit of the type of such Letter of Credit.

None of the Lenders (other than the Issuers in their capacity as such) shall have any obligation to Issue any Letter of Credit.

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Notwithstanding anything in this Agreement to the contrary, no Issuer shall be required to Issue or amend any Letter of Credit Issued by it if, after giving effect to such Issuance or amendment, the aggregate face amount of all Letters of Credit Issued by such Issuer would exceed the Commitment of such Issuer in its capacity as a Lender or, in the case of any Issuer that is not a Lender hereunder, the Commitment of the Affiliate of such Issuer that is a Lender hereunder.

          (b) In no event shall the expiration date of any Letter of Credit (i) be more than one year after the date of issuance thereof or (ii) be less than five days prior to the Scheduled Termination Date; provided, however, that any Letter of Credit with a term less than or equal to one year may provide for the renewal thereof for additional periods less than or equal to one year, as long as, (A) on or before the expiration of each such term and each such period, the Borrower and the Issuer of such Letter or Credit shall have the option to prevent such renewal and (B) neither the Issuer nor the Borrower shall permit any such renewal to extend the expiration date of any Letter beyond the date set forth in clause (ii) above.

          (c) In connection with the Issuance of each Letter of Credit, the Borrower shall give the relevant Issuer and the Administrative Agent at least two Business Days’ prior written notice, in substantially the form of Exhibit D (Form of Letter of Credit Request) (or in such other written or electronic form as is acceptable to the Issuer), of the requested Issuance of such Letter of Credit (a “Letter of Credit Request”). Such notice shall be irrevocable and shall specify the Issuer of such Letter of Credit, the face amount of the Letter of Credit requested (which shall not be less than $5,000,000) the date of Issuance of such requested Letter of Credit, the date on which such Letter of Credit is to expire (which date shall be a Business Day) and, in the case of an issuance, the Person for whose benefit the requested Letter of Credit is to be issued. Such notice, to be effective, must be received by the relevant Issuer and the Administrative Agent not later than 11:00 a.m. (New York time) on the second Business Day prior to the requested Issuance of such Letter of Credit.

          (d) Subject to the satisfaction of the conditions set forth in this Section 2.3, the relevant Issuer shall, on the requested date, Issue a Letter of Credit on behalf of the Borrower in accordance with such Issuer’s usual and customary business practices. No Issuer shall Issue any Letter of Credit in the period commencing on the first Business Day after it receives written notice from any Lender that one or more of the conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) or clause (a) above (other than those conditions set forth in clauses (a)(i), (a)(vi)(B) and (C) above and, to the extent such clause relates to fees owing to the Issuer of such Letter of Credit and its Affiliates, clause (a)(vi)(A) above) are not on such date satisfied or duly waived and ending when such conditions are satisfied or duly waived. No Issuer shall otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have been satisfied in connection with the Issuance of any Letter of Credit.

          (e) The Borrower agrees that, if requested by the Issuer of any Letter of Credit, it shall execute a Letter of Credit Reimbursement Agreement in respect to any Letter of Credit Issued hereunder. In the event of any conflict between the terms of any Letter of Credit Reimbursement Agreement and this Agreement, the terms of this Agreement shall govern.

          (f) Each Issuer shall comply with the following:

            (i) give the Administrative Agent written notice (or telephonic notice confirmed promptly thereafter in writing), which writing may be a telecopy or

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electronic mail, of the Issuance of any Letter of Credit Issued by it, of all drawings under any Letter of Credit Issued by it and of the payment (or the failure to pay when due) by the Borrower of any Reimbursement Obligation when due (which notice the Administrative Agent shall promptly transmit by telecopy, electronic mail or similar transmission to each Lender);

            (ii) upon the request of any Lender, furnish to such Lender copies of any Letter of Credit Reimbursement Agreement to which such Issuer is a party and such other documentation as may reasonably be requested by such Lender; and

            (iii) no later than 10 Business Days following the last day of each calendar month, provide to the Administrative Agent (and the Administrative Agent shall provide a copy to each Lender requesting the same) and the Borrower separate schedules for Documentary Letters of Credit and Standby Letters of Credit issued by it, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the aggregate Letter of Credit Obligations, in each case outstanding at the end of each month and any information requested by the Borrower or the Administrative Agent relating thereto.

          (g) Immediately upon the issuance by an Issuer of a Letter of Credit in accordance with the terms and conditions of this Agreement, such Issuer shall be deemed to have sold and transferred to each Lender, and each Lender shall be deemed irrevocably and unconditionally to have purchased and received from such Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Lender’s Ratable Portion of the Commitments, in such Letter of Credit and the obligations of the Borrower with respect thereto (including all Letter of Credit Obligations with respect thereto) and any security therefor and guaranty pertaining thereto.

          (h) The Borrower agrees to pay to the Issuer of any Letter of Credit the amount of all Reimbursement Obligations owing to such Issuer under any Letter of Credit issued for its account no later than the date that is the next succeeding Business Day after the Borrower receives written notice from such Issuer that payment has been made under such Letter of Credit (provided, however, that if such written notice is given by such Issuer to the Borrower prior to 11:00 a.m. (New York time), the Borrower shall pay such amount to the Issuer on the date of such notice) (such date, the “Reimbursement Date”), irrespective of any claim, set-off, defense or other right that the Borrower may have at any time against such Issuer or any other Person. In the event that any Issuer makes any payment under any Letter of Credit and the Borrower shall not have repaid such amount to such Issuer pursuant to this clause (h) or any such payment by the Borrower is rescinded or set aside for any reason, such Reimbursement Obligation shall be payable on demand with interest thereon computed (i) from the date on which such Reimbursement Obligation arose to the Reimbursement Date, at the rate of interest applicable during such period to Loans that are Base Rate Loans and (ii) from the Reimbursement Date until the date of repayment in full, at the rate of interest applicable during such period to past due Loans that are Base Rate Loans, and such Issuer shall promptly notify the Administrative Agent, which shall promptly notify each Lender of such failure, and each Lender shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuer the amount of such Lender’s Ratable Portion of such payment in immediately available funds in Dollars. If the Administrative Agent so notifies such Lender prior to 12:00 p.m. (New York time) on any Business Day, such Lender shall make available to the Administrative Agent for the account of such Issuer its Ratable Portion of the amount of such payment on such Business Day in immediately available funds. Upon such payment by a Lender, such Lender shall, except during

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the continuance of a Default or Event of Default under Section 9.1(f) (Events of Default) and notwithstanding whether or not the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), be deemed to have made a Loan to the Borrower in the principal amount of such payment. Whenever any Issuer receives from the Borrower a payment of a Reimbursement Obligation as to which the Administrative Agent has received for the account of such Issuer any payment from a Lender pursuant to this clause (h), such Issuer shall pay over to the Administrative Agent any amount received in excess of such Reimbursement Obligation and, upon receipt of such amount, the Administrative Agent shall promptly pay over to each Lender, in immediately available funds, an amount equal to such Lender’s Ratable Portion of the amount of such payment adjusted, if necessary, to reflect the respective amounts the Lenders have paid in respect of such Reimbursement Obligation.

          (i) If and to the extent such Lender shall not have so made its Ratable Portion of the amount of the payment required by clause (h) above available to the Administrative Agent for the account of such Issuer, such Lender agrees to pay to the Administrative Agent for the account of such Issuer forthwith on demand any such unpaid amount together with interest thereon, for the first Business Day after payment was first due at the Federal Funds Rate and, thereafter, until such amount is repaid to the Administrative Agent for the account of such Issuer, at a rate per annum equal to the rate applicable to Base Rate Loans under the Facility.

          (j) The Borrower’s obligation to pay each Reimbursement Obligation and the obligations of the Lenders to make payments to the Administrative Agent for the account of the Issuers with respect to Letters of Credit shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement, under any and all circumstances whatsoever, including the occurrence of any Default or Event of Default, and irrespective of any of the following:

            (i) any lack of validity or enforceability of any Letter of Credit or any Loan Document, or any term or provision therein;

            (ii) any amendment or waiver of or any consent to departure from all or any of the provisions of any Letter of Credit or any Loan Document;

            (iii) the existence of any claim, set-off, defense or other right that the Borrower, any other party guaranteeing, or otherwise obligated with, the Borrower, any Subsidiary or other Affiliate thereof or any other Person may at any time have against the beneficiary under any Letter of Credit, any Issuer, the Administrative Agent or any Lender or any other Person, whether in connection with this Agreement, any other Loan Document or any other related or unrelated agreement or transaction;

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

            (v) payment by the Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; and

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            (vi) any other act or omission to act or delay of any kind of the Issuer, the Lenders, the Administrative Agent or any other Person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.3, constitute a legal or equitable discharge of the Borrower’s obligations hereunder.

Any action taken or omitted to be taken by the relevant Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not result in any liability of such Issuer to the Borrower or any Lender. In determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof, the Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary and, in making any payment under any Letter of Credit, the Issuer may rely exclusively on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including reliance on the amount of any draft presented under such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be insufficient in any respect, if such document on its face appears to be in order, and whether or not any other statement or any other document presented pursuant to such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever, and any noncompliance in any immaterial respect of the documents presented under such Letter of Credit with the terms thereof shall, in each case, be deemed not to constitute willful misconduct or gross negligence of the Issuer.

          Section 2.4 Reduction and Termination of the Commitments

          The Borrower may, upon at least three Business Days’ prior notice to the Administrative Agent, terminate in whole or reduce in part ratably (subject to the last sentence of this Section 2.4) the unused portions of the respective Commitments of the Lenders; provided, however, that each partial reduction shall be in an aggregate amount of not less than $20,000,000 or an integral multiple of $1,000,000 in excess thereof. In addition, all outstanding Commitments shall terminate on the Scheduled Termination Date. Any reduction of the Commitments shall be applied first, to reduce the Commitments of any Lenders that are Affiliates of the Borrower on a ratable basis until the aggregate Commitments of such Lenders is not greater than $50,000,000 and then, to ratably reduce the Commitments of all Lenders by each such Lender’s Ratable Portion of the amount of such reduction; provided, that if at the time of any such reduction of the Commitments the Outstandings exceed $0, each Lender shall acquire, immediately upon giving effect to such reduction and without recourse or warranty, an undivided participation in the Outstandings of each other Lender (ratably in accordance with the then Outstandings) in principal amounts to the extent necessary to ensure that the Outstandings of each Lender (after giving effect to such reduction in Commitments) are proportionate to the Commitment of such Lender at such time, and, to the extent necessary, by paying to the Administrative Agent for the account of each other Lender, in immediately available funds in Dollars, an amount equal to the amount so required to be purchased.

          Section 2.5 Repayment of Loans

          The Borrower promises to repay the entire unpaid principal amount of the Loans on the Scheduled Termination Date or earlier, if otherwise required by the terms hereof.

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          Section 2.6 Evidence of Debt

          (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing Indebtedness of the 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 of the Borrower solely for this purpose and for tax purposes, shall establish and maintain at its address referred to in Section 11.8 (Notices, Etc.) a record of ownership (the “Register”) in which the Administrative Agent agrees to register by book entry the Administrative Agent’s, each Lender’s and each Issuer’s interest in each Loan, each Letter of Credit and each Reimbursement Obligation, 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 of the 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 and the Issuers, (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 Borrower to, or for the account of, each Lender hereunder, (v) the amount that is due and payable, and paid, by the Borrower to, or for the account of, each Issuer, including the amount of Letter Credit Obligations (specifying the amount of any Reimbursement Obligations) due and payable to an Issuer, and (vi) the amount of any sum received by the Administrative Agent hereunder from the 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 and Issuer’s, as the case may be, share thereof, if applicable.

            (ii) Notwithstanding anything to the contrary contained in this Agreement, the Loans (including the Notes evidencing such Loans) and the Reimbursement Obligations are registered obligations and the right, title, and interest of the Lenders and the Issuers and their assignees in and to such Loans or Reimbursement Obligations, as the case may be, 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, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 2.6(b) and Section 11.2 (Assignments and Participations) shall be construed so that the Loans and Reimbursement Obligations are at all times maintained in “registered form” 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 Requirements of 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 the Borrower to repay the Loans in accordance with their terms. In addition, the Loan Parties, the Administrative Agent, the Lenders and the Issuers shall treat each Person whose name is recorded in the Register as a Lender or as an Issuer, as applicable, for all purposes of this Agreement. Information contained in the Register with respect to any Lender or Issuer shall be available for inspection by

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the Borrower, the Administrative Agent, such Lender or such Issuer 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 the 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 Borrower hereunder, the Borrower shall promptly execute and deliver a Note or Notes to such Lender evidencing any Loans of such Lender, substantially in the form of Exhibit B (Form of Note).

          Section 2.7 Optional Prepayments

          (a) The Borrower may, upon at least three Business Days’ prior notice to the Administrative Agent, prepay the outstanding principal amount of the Loans in whole or in part at any time; provided, however, that each such prepayment shall be in an aggregate amount of not less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof; and provided, further, however, that if any prepayment of any Eurodollar Rate Loan is made by the Borrower other than on the last day of an Interest Period for such Loan, the Borrower shall also pay any amount owing pursuant to Section 2.13(e) (Breakage Costs).

          (b) Any such optional prepayments shall be applied, first, to repay any amounts outstanding under the Working Capital Sublimit and second to repay all other Loans.

          (c) The Borrower shall have no right to prepay the principal amount of any Loan other than as provided in this Section 2.7.

          Section 2.8 Mandatory Prepayments

          (a) Upon receipt by any member of the MIC Group of Net Cash Proceeds arising from any Asset Sale (to the extent such Net Cash Proceeds exceed $5,000,000 in the aggregate during the applicable Fiscal Year of the Borrower), Property Loss Event, Debt Issuance or Equity Issuance, the Borrower shall immediately prepay the Loans (or provide cash collateral in respect of Letters of Credit) in an amount equal to 100% of such Net Cash Proceeds; provided, that to the extent that any such mandatory prepayment arises as a result of any such Asset Sale, Property Loss Event or Debt Issuance by a Subsidiary of Holdings that is not a Wholly-Owned Subsidiary of Holdings, the amount of the mandatory prepayment required pursuant to this Section 2.8(a) will be equal to the product of (A) the amount of such mandatory prepayment that would otherwise be required by this clause (a) and (B) an amount equal to the percentage of all issued and outstanding Stock that Holdings and the Borrower own, directly or indirectly, in such Subsidiary. Any such mandatory prepayment shall be applied in accordance with clause (b) below.

          (b) Subject to the provisions of Section 2.12(g) (Payments and Computations), any prepayments made by the Borrower required to be applied in accordance with this clause (b) shall be applied as follows: first, to repay the outstanding principal balance of the Loans until such Loans shall have been paid in full; and then, to provide cash collateral for any Letter of Credit Obligations in an amount equal to 105% of such Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein. All repayments of the Loans made pursuant to this clause (b) shall be applied first, to repay any amounts outstanding under the Working Capital Sublimit and second, to repay all other Loans.

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          (c) If at any time, the aggregate principal amount of the Outstandings exceeds the aggregate Commitments at such time, the Borrower shall forthwith prepay the Loans then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the aggregate outstanding Loans, the Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) in an amount equal to 105% of such excess.

          (d) Notwithstanding anything to the contrary in this Section 2.8, so long as no Event of Default shall have occurred and be continuing or would result therefrom, if (i) any prepayment of the Loans or cash collateralization of any Letter of Credit Obligations would be required to be made in accordance with clauses (a), (b) or (c) of this Section 2.8 on a day other than on the last day of the Interest Period applicable to such Obligations, or (ii) the aggregate amount of Net Cash Proceeds or other amounts required by clause (a), (b) or (c) of this Section 2.8 to be applied to prepay the Loans or cash collateralize any Letter of Credit Obligations on such date are less than or equal to $5,000,000, the Borrower may defer such prepayment until (A) in the case of any amounts deferred pursuant to subclause (i), the last day of such Interest Period and (B) in the case of any amounts deferred pursuant to subclause (ii), the earlier of the date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required by such subsections to be applied to prepay Loans or cash collateralize Letter of Credit Obligations exceeds $5,000,000 or the date that the Borrower so requests (in either case, such day being a “Mandatory Prepayment Date”); provided that in the event that the Borrower elects to defer payments of amounts due pursuant to this clause (d), the Borrower shall (i) promptly (and in any event within 5 days thereof) notify the Administrative Agent of the applicable Asset Sale, Property Loss Event, Debt Issuance or Equity Issuance, as the case may be, giving rise to such prepayment requirement and (ii) cause any such amounts to be deposited into a Cash Collateral Account until the occurrence of a Mandatory Prepayment Date, at which time the Administrative Agent is hereby authorized (without any further action by or notice to or from the Borrower or any of the other Loan Parties) to apply such amounts deposited to the Cash Collateral Account to the prepayment of the Loans and the cash collateralization of the Letter of Credit Obligations in accordance with this Section 2.8. Upon the occurrence of an Event of Default, the Administrative Agent is hereby authorized (without any further action by or notice to or from the Borrower or any of the other Loan Parties) to apply any amounts so deposited in the Cash Collateral Account to any Loans or Letter of Credit Obligations then outstanding.

          Section 2.9 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 in effect from time to time during such Eurodollar Interest Period.

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          (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, and (B) if not previously paid in full, 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 payment or prepayment thereof in full or in part and (C) if not previously paid in full, 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, if any amount payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), effective immediately upon the occurrence of such Default and for as long thereafter as such Default shall be continuing, 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 per annum in excess of the rate of interest 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 2.10 Conversion/Continuation Option

          (a) The 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 $5,000,000 or an integral multiple of $1,000,000 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 (Form of Notice of Conversion or Continuation) (a “Notice of Conversion or Continuation”) and shall be made by giving the Administrative Agent at least three Business Days’ 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) 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 2.13 (Special Provisions Governing Eurodollar Rate Loans). If, within the time period required under the terms of this Section 2.10, the Administrative Agent does not receive a Notice of Conversion or Continuation from the 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

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Period, the Borrower shall be deemed to have delivered a Notice of Conversion or Continuation electing to continue such Loans as Eurodollar Rate Loans having an Interest Period of one month. Each Notice of Conversion or Continuation shall be irrevocable.

          Section 2.11 Fees

          (a) Unused Commitment Fee. The Borrower agrees to pay in immediately available Dollars to each Lender a commitment fee on the actual daily amount by which the Commitment of such Lender exceeds such Lender’s Ratable Portion of the sum of (i) the aggregate outstanding principal amount of Loans and (ii) the outstanding amount of the aggregate Letter of Credit Obligations (the “Unused Commitment Fee”) from the date hereof through the Facility Termination Date at the Applicable Unused Commitment Fee Rate, payable in arrears (A) on the first Business Day of each calendar quarter, commencing on the first such Business Day following the Closing Date and (B) on the Facility Termination Date.

          (b) Letter of Credit Fees. The Borrower agrees to pay the following amounts with respect to Letters of Credit issued by any Issuer:

            (i) to the Administrative Agent for the account of each Issuer of a Letter of Credit, with respect to each Letter of Credit issued by such Issuer, an issuance fee equal to 0.125% per annum of the maximum undrawn face amount of such Letter of Credit, payable in arrears (A) on the first Business Day of each calendar quarter, commencing on the first such Business Day following the issuance of such Letter of Credit and (B) on the Facility Termination Date;

            (ii) to the Administrative Agent for the ratable benefit of the Lenders, with respect to each Letter of Credit, a fee accruing in Dollars at a rate per annum equal to the Applicable Margin for Loans that are Eurodollar Rate Loans on the maximum undrawn face amount of such Letter of Credit, payable in arrears (A) on the first Business Day of each calendar quarter, commencing on the first such Business Day following the issuance of such Letter of Credit and (B) on the Facility Termination Date; provided, however, that during the continuance of an Event of Default, such fee shall be increased by two percent per annum (instead of, and not in addition to, any increase pursuant to Section 2.9(c) (Interest)) and shall be payable on demand; and

            (iii) to the Issuer of any Letter of Credit, with respect to the issuance, amendment or transfer of each Letter of Credit and each drawing made thereunder, customary documentary and processing charges in accordance with such Issuer’s standard schedule for such charges in effect at the time of issuance, amendment, transfer or drawing, as the case may be.

          (c) Additional Fees. The Borrower has agreed to pay to the Administrative Agent additional fees, the amount and dates of payment of which are embodied in the Fee Letter.

          Section 2.12 Payments and Computations

          (a) The Borrower shall make each payment hereunder (including fees and expenses) not later than 2:00 p.m. (New York time) on the day when due, in the currency specified herein (or, if no such currency is specified, in Dollars) to the Administrative Agent at its address referred to in Section 11.8 (Notices, Etc.) in immediately available funds without set-off

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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 2.14 (Capital Adequacy), Section 2.15 (Taxes) or Section 2.13(c) or (d) (Special Provisions Governing Eurodollar Rate Loans) shall be paid only to the affected Lender or Lenders. Payments received by the Administrative Agent after 2:00 p.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, 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 Borrower of any Loan, Reimbursement Obligation (including interest or fees in respect thereof) and each reimbursement of various costs, expenses or other Obligation 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 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 Eurodollar Interest Periods being repaid prior to those having later expiring Eurodollar Interest Periods.

          (e) Unless the Administrative Agent shall have received notice from the Borrower to the Lenders prior to the date on which any payment is due hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent that the Borrower shall not have made such payment in full to the Administrative Agent, each 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 2.8(b) (Mandatory Prepayments)), all payments and any other amounts received by the Administrative Agent from or for the benefit of the Borrower shall be applied as follows: first, to pay principal of, and interest on, any portion of the Loans 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

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such Lender or the Borrower, second, to pay all other Obligations then due and payable and third, as the Borrower so designates; provided that all payments in respect of principal of the Loans shall be applied first to repay any amounts outstanding under the Working Capital Sublimit and, second, to repay all other Loans. Payments in respect of Loans received by the Administrative Agent shall be distributed to each Lender in accordance with such Lender’s Ratable Portion of the Commitments; and all payments of fees and all other payments in respect of any other Obligation shall be allocated among such of the Lenders and Issuers as are entitled thereto and, for such payments allocated to the Lenders, in proportion to their respective Ratable Portions.

          (g) The 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 2.8(b) (Mandatory Prepayments) and clause (f) above, the Administrative Agent may, and, upon either (A) the written direction of the Requisite Lenders or (B) the acceleration of the Obligations pursuant to Section 9.2 (Remedies) shall apply all payments in respect of any Obligations and all funds on deposit in any Cash Collateral Account 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 Borrower;

            (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 and the Issuers;

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

            (v) fifth, to pay interest then due and payable in respect of the Loans and Reimbursement Obligations;

            (vi) sixth, to pay or prepay principal amounts on the Loans and Reimbursement Obligations and to provide cash collateral for outstanding Letter of Credit Undrawn Amounts in the manner described in Section 9.3 (Actions in Respect of Letters of Credit), ratably to the aggregate principal amount of such Loans, Reimbursement Obligations and Letter of Credit Undrawn Amounts; 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 or Issuer’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

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time to time be changed by the agreement of the Requisite Lenders without necessity of notice to or consent of or approval by the Borrower, any Secured Party that is not a Lender or Issuer or by any other Person that is not a Lender or Issuer. 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 2.13 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 the 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 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 shall notify the Borrower that the Requisite Lenders have determined that the circumstances causing such suspension no longer exist.

          (c) Increased Costs

          If at any time 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 (other than any change by way of imposition or increase of reserve requirements included in determining the Eurodollar Rate) 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), in each case, after the date hereof, shall have the effect of increasing the cost to such Lender of agreeing to make or making, funding or maintaining any Eurodollar Rate Loans (excluding any such increased costs resulting from (i) Taxes or Other Taxes (as to which Section 2.15 (Taxes) shall govern) and (ii) taxes measured by its net or gross income, and franchise taxes imposed on it, and similar taxes imposed (A) by the jurisdiction (or any political subdivision thereof) under the laws of which it is organized or (B) as a result of a present or former connection between it and the jurisdiction of the Governmental Authority imposing such tax (or any political subdivision thereof), then the Borrower shall from time to time, upon demand (together with appropriate supporting documentation) by such Lender (with a copy of such demand and documentation 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 Borrower and the Administrative Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error. Notwithstanding anything to the contrary in the foregoing, with respect to any

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Lender’s claim for compensation pursuant to this clause (c), the Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred twenty (120) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim for compensation; provided, that, if the circumstance giving rise to such increased cost is retroactive, then such 120 day period referred to above shall be extended to include the period of retroactive effect thereof. If any Lender requests compensation by the Borrower pursuant to this clause (c), the Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue Eurodollar Rate Loans from one Interest Period to another, or to convert Base Rate Loans into Eurodollar Rate Loans, until the event or condition giving rise to such claim for compensation ceases to be in effect (in which case the provisions of Section 2.10 (Conversion/Continuation Option) shall be applicable); provided that such suspension shall not affect the right of such Lender to receive the compensation so requested.

          (d) Illegality

            (i) 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 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 each such Lender shall make a Base Rate Loan as part of any requested Borrowing of Eurodollar Rate Loans and (ii) if the affected Eurodollar Rate Loans are then outstanding, the Borrower shall immediately 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 Borrower and the Administrative Agent, and the Administrative Agent shall promptly transmit the notice to each other Lender. The Borrower’s right to request, and such Lender’s obligation, if any, to make Eurodollar Rate Loans shall thereupon be restored.

            (ii) Any Lender that has determined in accordance with clause (i) above that it is unlawful for such Lender to fund or make any Eurodollar Rate Loan 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 enable such Lender to make or fund Eurodollar Rate Loans and would not, in the sole determination of such Lender, be otherwise disadvantageous to such Lender.

          (e) Breakage Costs

          In addition to all amounts required to be paid by the Borrower pursuant to Section 2.9 (Interest), the Borrower shall compensate each Lender, upon demand (together with appropriate supporting documentation), for all 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 the Borrower but excluding any loss of the Applicable Margin on the relevant Loans or other

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anticipated 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 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 2.10 (Conversion/Continuation Option), (ii) if for any reason any Eurodollar Rate Loan is prepaid (including mandatorily pursuant to Section 2.8 (Mandatory Prepayments)) 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 the Borrower to repay Eurodollar Rate Loans when required by the terms hereof. The Lender making demand for such compensation shall deliver to the Borrower concurrently with such demand a written statement as to such losses, expenses and liabilities, and this statement shall be conclusive as to the amount of compensation due to such Lender, absent manifest error. Notwithstanding anything to the contrary in the foregoing, with respect to any Lender’s claim for compensation pursuant to this clause (e), the Borrower shall not be required to compensate such Lender for any such amount incurred more than sixty (60) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim for compensation.

          Section 2.14 Capital Adequacy

       (i) 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) 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 or in respect of any Letter of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, change, compliance or interpretation, then, upon demand from time to time by such Lender (with a copy of such demand to the Administrative Agent), the 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 as to such amounts submitted to the Borrower and the Administrative Agent by such Lender shall be conclusive and binding for all purposes absent manifest error.

       (ii) Any Lender claiming any additional amounts payable pursuant to this Section 2.14 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 2.15 Taxes

          (a) Except as otherwise provided in this Section 2.15, any and all payments by any Loan Party under each Loan Document shall be made free and clear of and without

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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, each Issuer and the Administrative Agent (A) taxes measured by its net or gross income, and franchise taxes imposed on it, and similar taxes imposed (1) by the jurisdiction (or any political subdivision thereof) under the laws of which such Lender, such Issuer or the Administrative Agent (as the case may be) is organized, or (2) as a result of a present or former connection between such Lender, such Issuer or the Administrative Agent (as the case may be) and the jurisdiction of the Governmental Authority imposing such tax (or any political subdivision thereof), and (B) any withholding taxes required to be withheld with respect to payments under the Loan Documents under laws (including any statute, treaty or regulation) in effect on the date hereof or with respect to any particular Lender, the date on which it designates a different Applicable Lending Office (or, in the case of (x) an Eligible Assignee, the date of the Assignment and Acceptance, (y) a successor Administrative Agent, the date of the appointment of such Administrative Agent, and (z) a successor Issuer, the date such Issuer becomes an Issuer) at the rate applicable to such Lender, such Issuer or the Administrative Agent, as the case may be, but not excluding any increase in withholding taxes payable in excess of such applicable rate 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 or the date such Issuer becomes an Issuer) (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, any Issuer 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 2.15), such Lender, such Issuer 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 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 by any Loan Party 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, each Issuer 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 2.15) paid by such Lender, such Issuer or the Administrative Agent (as the case may be) and any liability (including for penalties, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 45 days from the date such Lender, such Issuer or the Administrative Agent (as the case may be) makes written demand therefor; provided however, if the relevant Loan Party reasonably determines that any such Taxes or Other Taxes were not correctly or legally asserted, such Lender, such Issuer or the Administrative Agent, as the case may be, shall use commercially reasonable efforts (as determined in good faith by such Lender, Issuer or Administrative Agent, as the case may be and at the sole cost and expense of

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such Loan Party) in cooperating with the relevant Loan Party in contesting any such Taxes or Other Taxes with the appropriate Governmental Authority.

          (d) Within 45 days after the date of any payment of Taxes or Other Taxes by any Loan Party, the Borrower shall furnish to the Administrative Agent, at its address referred to in Section 11.8 (Notices, Etc.), the original or a certified copy of a receipt (or other documentation reasonably satisfactory to the Administrative Agent) evidencing payment thereof.

          (e) Without prejudice to the survival of any other agreement of any Loan Party hereunder or under the Guaranty, the agreements and obligations of such Loan Party contained in this Section 2.15 shall survive the payment in full of the Obligations.

            (f) (i) Any Non-U.S. Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which a Loan Party is resident for Tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments under any Loan Document shall deliver to the Administrative Agent and the Borrower, at the time or times prescribed by applicable Law or reasonably requested by Borrower or the Administrative Agent, two completed originals of such properly completed and executed documentation prescribed by applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding.

       (ii) Without limiting the generality of the foregoing, 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, the date a successor Issuer becomes an Issuer 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 Borrower and the Administrative Agent, and (z) from time to time if requested by the Borrower or the Administrative Agent, provide the Administrative Agent and the 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 and a written statement certifying that it is not (1) a “bank” (as defined in Section 881(c)(3)(A) of the Code), (2) a ten percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower or

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            Holdings or any other Guarantor or (3) a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code); or

            (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 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.

          (iii) 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, on or prior to the date a successor Issuer becomes an Issuer 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 Borrower and the Administrative Agent, and (z) from time to time if requested by the Borrower or the Administrative Agent, provide the Administrative Agent and the 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 2.15(f), a U.S. Lender shall not include a Lender, an Issuer 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).

          (iv) For any period with respect to which any U.S. Lender or Non-U.S. Lender has failed to provide the Administrative Agent and the Borrower with the appropriate form, certificate or other document described in this subsection (f) (other than if such failure is due to a change in law or in the interpretation or application thereof, occurring after the date on which such form, certificate or other document originally was required to be provided or if such form, certificate or other document otherwise is not required under this clause (f)), such U.S. Lender or Non-U.S. Lender shall not be entitled to indemnification under subsection (a) or (c) of this Section 2.15 with respect to Taxes imposed by the United States by reason of such failure, except to the extent the failure to provide such forms did not give rise to the withholding.

          (g) Any U.S. Lender or Non-U.S. Lender claiming any additional amounts payable pursuant to this Section 2.15 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.

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                    (h) If the Administrative Agent, any Lender or Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or Holdings or with respect to which the Borrower or Holdings has paid additional amounts pursuant to this Section 2.15, it shall pay to the Borrower or Holdings, as the case may be, an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower or Holdings, as applicable, under this Section 2.15 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or such Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower and Holdings, upon the request of the Administrative Agent, such Lender or such Issuer, agree to repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or such Issuer in the event the Administrative Agent, such Lender or such Issuer is required to repay or return all or any part of such refund to such Governmental Authority. This subsection shall not be construed to require the Administrative Agent, any Lender or such Issuer to conduct its business or to arrange or alter in any respect its tax or financial affairs so that it is entitled to receive such refund other than performing ministerial acts necessary to be entitled to receive such refund.

                    Section 2.16 Substitution of Lenders

                    (a) (i) In the event that (A) any Lender makes a claim under Section 2.13(c) (Increased Costs) or Section 2.14 (Capital Adequacy), (B) it becomes illegal for any Lender to continue to fund or make any Eurodollar Rate Loan and such Lender notifies the Borrower pursuant to Section 2.13(d) (Illegality), (C) the Borrower or Holdings is required to make any payment pursuant to Section 2.15 (Taxes) that is attributable to a particular Lender or (D) any Lender becomes a Non-Funding Lender, (ii) in the case of clause (i)(A) above, as a consequence of increased costs in respect of which such claim is made, the effective rate of interest payable to such Lender under this Agreement with respect to its Loans materially exceeds the effective average annual rate of interest payable to the Requisite Lenders under this Agreement and (iii) in the case of clauses (i)(A), (B) and (C) above, Lenders holding at least 75% of the Commitments are not subject to increased costs or illegality, payment or proceedings (any such Lender, an “Affected Lender”), the Borrower may substitute any Lender 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 the 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 in clause (i) above that the 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 the Borrower within 30 days of each other, then the Borrower may substitute all, but not (except to the extent the Borrower has already substituted one of such Affected Lenders before the Borrower’s receipt of the other Affected Lenders’ claim) less than all, Lenders making such claims.

                    (b) If the Substitution Notice was properly issued under this Section 2.16, 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

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respect of any damages (which pursuant to Section 11.5 (Limitation of Liability), 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 Outstandings together with any other Obligations owing to it, (ii) the receipt by the Administrative Agent of an agreement in form and substance satisfactory to it and the Borrower whereby the Substitute Institution shall agree to be bound by the terms hereof 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. 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 2.16, 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.

ARTICLE III

Conditions To Loans And Letters Of Credit

                    Section 3.1 Conditions Precedent to Effectiveness

                    This Agreement shall become effective (and the obligation of each Lender to make the Loans, if any, requested to be made by it on the date hereof and the obligation of each Issuer to Issue Letters of Credit, if any, requested to be made by it on the date hereof, is subject to) the satisfaction or due waiver in accordance with Section 11.1 (Amendments, Waivers, Etc.) 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 otherwise indicated or agreed to by the Administrative Agent, in form and substance satisfactory to the Administrative Agent and in sufficient copies for each Lender:

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

     (ii) the Guaranty, duly executed by Holdings;

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

     (A) evidence 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 the Borrower and Holdings as the Administrative Agent may reasonably request with respect to the perfection of its security interests in the Collateral (including financing statements under the UCC, and other applicable documents under the laws of any jurisdiction with respect to the perfection of Liens created by the Pledge Agreement) and (y) copies of UCC search reports as of a recent date listing all effective financing statements that name the Borrower or Holdings 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 Agreement and stock powers for such certificates, instruments and other documents executed in blank.

     (iv) a favorable opinion of (A) Shearman & Sterling LLP, counsel to the Borrower and Holdings, in substantially the form of Exhibit F-1 (Form of Opinion of Counsel for the Borrower and Holdings), (B) Potter Anderson and Corroon LLP, Delaware counsel to the Borrower and Holdings, in substantially the form of Exhibit F-2 (Form of Opinion of Delaware Counsel for the Borrower and Holdings), (C) Heidi Mortensen, General Counsel of Holdings and the Borrower, in substantially the form of Exhibit F-3 (Form of Opinion of General Counsel) and (D) counsel to the Administrative Agent as to the enforceability of this Agreement and the other Loan Documents to be executed on the Closing Date;

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

     (vi) a certificate of the Secretary or an Assistant Secretary of each of the Borrower and Holdings 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 incorporation (or equivalent Constituent Document) of such Loan Party from the certificate of incorporation (or equivalent Constituent Document) delivered pursuant to clause(v) above; and

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          (vii) the Collateral Letter, duly executed by the Borrower, Holdings, the Lenders, the Issuers and the Administrative Agent.

                    (b) Fees and Expenses Paid.

          (i) The Borrower shall have paid to the Administrative Agent for the account of each Person that is a Lender on the Closing Date an establishment fee equal to 0.25% of the amount of such Lender’s Commitment in effect on the Closing Date.

          (ii) 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 fees and expenses of counsel) due and payable on or before the Closing Date (including all such fees described in the Fee Letter).

                    (c) Consents, Etc. The Administrative Agent shall have received copies of the consents, authorizations, approval, notices, filings or registrations listed on Schedule 4.2 (Consents) (including all Change of Control Consents required in connection with the pledge of Stock of the Initial Pledged Entities), each of which shall be in full force and effect. The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower to the effect that the matters set forth in Section 4.2(a)(iv) (Corporate Power; Authorization; Enforceable Obligations) and Section 4.13 (Perfection, Etc.) are true and correct on and as of the Closing Date; it being understood that the none of Holdings, the Borrower and any of their Subsidiaries shall be required to obtain as a condition to the effectiveness of this Agreement those Change of Control Consents that would be required in connection with any Enforcement Action.

                    (d) Financial Statements. The Lenders shall have received the Financial Statements referred to in Section 4.4(a) (Financial Statements).

                    Section 3.2 Conditions Precedent to Each Loan and Letter of Credit

                    The obligation of each Lender on any date (including the Closing Date) to make any Loan and of each Issuer on any date (including the Closing Date) to Issue any Letter of Credit is subject to the satisfaction of each of the following conditions precedent:

                    (a) Request for Borrowing or Issuance of Letter of Credit. With respect to any Loan, the Administrative Agent shall have received a duly executed Notice of Borrowing and, with respect to any Letter of Credit, the Administrative Agent and the Issuer shall have received a duly executed Letter of Credit Request.

                    (b) 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 (Representations and Warranties) 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

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relate to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date; and

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

                    (c) Pro Forma Compliance with Leverage Ratio. In the event that any Asset Sale (other than any Excluded Asset Sale) or Debt Issuance (other than any Excluded Debt Issuance) shall have occurred during Fiscal Quarter in which such Loan is being made or such Letter of Credit is being Issued, the Leverage Ratio for the most recently ended Measurement Period, determined on a pro forma basis after giving effect to such Loan or Letter of Credit, as the case may be, and such Asset Sale or Debt Issuance, as the case may be (and calculated as if such Asset Sale or Debt Issuance occurred on the last day of the most recently ended Measurement Period), shall not be more than 5.6 to 1.0.

Each submission by the Borrower to the Administrative Agent of a Notice of Borrowing and the acceptance by the Borrower of the proceeds of each Loan requested therein, and each submission by the Borrower to an Issuer of a Letter of Credit Request, and the Issuance of each Letter of Credit requested therein, shall be deemed to constitute a representation and warranty by the Borrower as to the matters specified in clause (b) above on the date of the making of such Loan or the Issuance of such Letter of Credit.

                    Section 3.3 Determinations of Conditions Precedent to Effectiveness

                    For purposes of determining compliance with the conditions specified in Section 3.1 (Conditions Precedent to Effectiveness), 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 12:00 p.m. (noon) New York time on the date hereof specifying its objection thereto and, in the event that a Borrowing is to be made on the date hereof, 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, the Issuers and the Administrative Agent to enter into this Agreement, each of Holdings and the Borrower represents and warrants each of the following to the Lenders, the Issuers and the Administrative Agent, on and as of the Closing Date and after giving effect to the making of the Loans and the other financial accommodations on the Closing Date and on and as of each date as required by Section 3.2(b)(i) (Conditions Precedent to Each Loan and Letter of Credit):

                    Section 4.1 Corporate Existence; Compliance with Law

                    Each of Holdings, the Borrower and their respective Subsidiaries (a) is duly organized or formed, validly existing and (to the extent applicable in the jurisdiction of organization of such Subsidiaries (other than the Borrower)) in good standing under the laws of

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the jurisdiction of its organization, except, solely in the case of Subsidiaries of Holdings that are not Loan Parties, where the failure to be so organized, existing or in good standing would not reasonably be expected, in the aggregate, to have a Material Adverse Effect (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 reasonably be expected, in the aggregate, to have a Material Adverse Effect, (c) has all requisite corporate, limited liability company or other similar organizational 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, except, solely in the case of Subsidiaries of Holdings that are not Loan Parties, where the failure to have such power and authority would not reasonably be expected, in the aggregate, to have a Material Adverse Effect, (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 reasonably be expected, in the aggregate, 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 taking of ministerial action to secure the grant or transfer thereof or the failure to obtain or make would not reasonably be expected, in the aggregate, 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 (Conditions To Loans And Letters Of Credit) will have been duly authorized by all necessary corporate or other organizational 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 material Contractual Obligation of such Loan Party or any of its Subsidiaries (subject, in the case of any Enforcement Action, to the receipt of the required Change of Control Consents) 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 (i) those in favor of the Secured Parties pursuant to the Collateral Documents or (ii) such Liens on any property of any Subsidiary of Holdings (other than a Loan Party) that could not reasonably be expected to materially adversely affect the interests of the Lenders; 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 (Consents) and that have been or will be, prior to

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the Closing Date, obtained or made, copies of which have been or will be delivered to the Administrative Agent pursuant to Section 3.1 (Conditions Precedent to Effectiveness), and each of which on the Closing Date will be in full force and effect and (I) with respect to the Collateral, filings required to perfect the Liens created by the Collateral Documents and (II) in the case of any Enforcement Action, the Change of Control Consents.

                    (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, except to the extent limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

                    Section 4.3 Ownership of Borrower; Subsidiaries

                    Set forth on Schedule 4.3 (Ownership) is a complete and accurate list of the direct Subsidiaries of Holdings and the Borrower showing, as of the date hereof, as to each such Subsidiary, the jurisdiction of its organization or formation, the number of shares, membership interest or other ownership interest of each class of Stock authorized (if applicable), the number outstanding on the date hereof and the number and percentage of the outstanding shares of each such class owned directly by Holdings and the Borrower and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase of any similar rights at the date hereof. All of the outstanding Stock of each Subsidiary of each of Holdings and the Borrower owned directly by Holdings and the Borrower, as applicable, has been validly issued, is fully paid and non-assessable (to the extent applicable) and is owned beneficially and of record by Holdings or the Borrower, as the case may be. All of the outstanding Stock of each directly owned Subsidiary of each of the Borrower and Holdings, as applicable, is owned by the Borrower or Holdings, as the case may be, free and clear of all Liens other than any Liens created or permitted under the Loan Documents. As of the date hereof, neither of Holdings or the Borrower owns or holds, directly any Stock of any Person other than such Subsidiaries set forth on Schedule 4.3 (Ownership). Except as set forth on Schedule 4.3 (Ownership), there are no agreements or understandings to which Holdings or the Borrower is a party with respect to the voting, sale or transfer of any shares of Stock of the Borrower or any agreement to which Holdings or the Borrower is a party restricting the transfer or hypothecation of any such shares.

                    Section 4.4 Financial Statements

                    (a) The Consolidated balance sheet of MICT and its Subsidiaries as at December 31, 2004, and the related Consolidated statements of income, retained earnings and cash flows of MICT and its Subsidiaries for the fiscal year then ended, accompanied by an unqualified opinion of the Borrower’s Accountants with respect to such statements and the Consolidated balance sheets of MICT and its Subsidiaries as at June 30, 2005, and the related Consolidated statements of income, retained earnings and cash flows of MICT and its Subsidiaries for the 6 months then ended, copies of which have been furnished to each Lender, fairly present, in all material respects, subject, in the case of said balance sheets as at June 30, 2005, and said statements of income, retained earnings and cash flows for the months then ended, to the absence of footnote disclosure and normal recurring year-end audit adjustments, the Consolidated financial condition of MICT and its Subsidiaries as at such dates and the

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Consolidated results of the operations of MICT and its Subsidiaries for the period ended on such dates, all in conformity with GAAP.

                    (b) None of Holdings, the Borrower or any of the Borrower’s Subsidiaries has any material obligation, contingent liability or liability for taxes, long-term leases 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 or is not, to the extent incurred after the date of such Financial Statements, prohibited by this Agreement.

                    Section 4.5 Material Adverse Change

                    Since December 31, 2004, there has been no Material Adverse Change.

                    Section 4.6 Solvency

                    Each Loan Party is Solvent.

                    Section 4.7 Litigation

                    Except as set forth on Schedule 4.7 (Litigation), there are no pending or, to the knowledge of the Borrower or Holdings, threatened or contemplated actions, suits, investigations, litigation or proceedings affecting Holdings or any of its Subsidiaries or against any of their properties or revenues before any court, Governmental Authority or arbitrator that affects or purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby or thereby, other than those that, in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

                    Section 4.8 Taxes

                    All federal, state, local and foreign income and franchise and other material tax returns, reports and statements (collectively, the “Tax Returns”) required to be filed by Holdings or the Borrower or any of their respective Subsidiaries 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 and all material taxes, charges and other impositions 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 Holdings, the Borrower or such Subsidiary (other than, in the case of Holdings, the Borrower) in conformity with GAAP or, in the case of any Subsidiary (other than, in the case of Holdings, the Borrower) as would not reasonably be expected to have a Material Adverse Effect. No such Tax Return is under audit or, to the knowledge of the Borrower or Holdings, examination by any Governmental Authority and no written notice of such an audit or examination or any written assertion of any claim for Taxes has been given or made by any Governmental Authority, except as would not reasonably be expected to have a Material Adverse Effect. Proper and accurate amounts have been withheld by Holdings, the Borrower and each of their respective Subsidiaries from their respective employees for all periods in full and complete compliance with the tax, social security and unemployment withholding provisions of applicable Requirements of Law and such withholdings have been timely paid to the respective Governmental Authorities, except in

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the case of any Subsidiary (other than, in the case of Holdings, the Borrower), as would not reasonably be expected to have a Material Adverse Effect.

                    Section 4.9 Full Disclosure

                    (a) All information prepared or furnished in writing by or on behalf of Holdings or the Borrower in connection with this Agreement or the consummation of the transactions contemplated hereunder and thereunder was true, complete and accurate in all material respects when taken as a whole on the date on which such information was provided, and as of such date, did not omit to state a material fact necessary to make such information, taken as a whole, not misleading.

                    (b) No information furnished by Holdings or the Borrower to the Administrative Agent, the Issuers or any Lender in connection with the negotiation of the Credit Agreement or the other Loan Documents, the consummation of the transactions contemplated hereby or thereby or pursuant to the terms of the Loan Documents, when taken together with the information contained in the 2004 S-1/A and in each of MICT’s periodic reports filed with the Securities and Exchange Commission on Form 10-K, Form 10-Q or Form 8-K (together, in each case, with any exhibits thereto), as the case may be, subsequent to the filing of the 2004 S-1/A, taken as a whole, contains (as of the date on which such information has been provided to the Administrative Agent, such Issuer or such Lender, as modified or otherwise supplemented by information so provided) any untrue statement of a material fact or omits to state a material fact necessary to make the statements made therein, in light of the circumstances under which they were, are or will be made, not misleading; provided, that to the extent any such information, exhibit or report was based upon or constitutes a forecast or projection, the Borrower and Holdings represent only that such information was prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed by the Borrower and Holdings to be reasonable at the time (it being understood that such forecasts or projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower and Holdings, and that the Borrower and Holdings make no representation as to the attainability of such forecasts or projections or as to whether such forecasts or projections will be achieved or materialize).

                    (c) All facts known to the Borrower or Holdings and material to an understanding of the financial condition, business, properties or prospects of Holdings, the Borrower and their respective Subsidiaries taken as one enterprise have been disclosed to the Lenders or are contained in the 2004 S-1/A and each of MICT’s periodic reports filed with the Securities and Exchange Commission on Form 10-K, Form 10-Q or Form 8-K (together, in each case, with any exhibits thereto) subsequent to the filing of the 2004 S-1/A.

                    Section 4.10 No Defaults

                    No Default or Event of Default has occurred and is continuing.

                    Section 4.11 Investment Company Act; Public Utility Holding Company Act

                    (a) No Loan Party is required to register as an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended.

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                    (b) No Loan Party is, prior to February 8, 2006, a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company,” as each such term is defined and used in the Public Utility Holding Company Act of 1935, as amended.

                    Section 4.12 Use of Proceeds

                    (a) The proceeds of the Loans and the Letters of Credit are being used by the Borrower (and, to the extent distributed to them by the Borrower, Holdings or any other Subsidiary of Holdings) solely for (i) Capital Expenditures or other Investments not prohibited hereunder and (ii) general corporate purposes; provided, however, that the aggregate outstanding amount of Loans and Letters of Credit made or issued for the purposes specified in this clause (ii) shall not at any time exceed $30,000,000 (the “Working Capital Sublimit”); and provided, further, however, that no Loans in excess of the Working Capital Sublimit shall be used at any time for purposes of making Restricted Payments to or by Holdings.

                    (b) The proceeds of the Loans and the Letters of Credit will not be used to purchase (or are not being used for the purpose of purchasing) or carry any margin stock (within the meaning of Regulation U of the Federal Reserve Board) 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. Following the application of the proceeds of the Loans and the Letters of Credit, the Obligations secured by margin stock (within the meaning of Regulation U of the Federal Reserve Board) shall not exceed an amount equal to the “maximum loan value” (as defined in Regulation U of the Federal Reserve Board) of the Collateral.

                    Section 4.13 Perfection, Etc.

                    All filings and other actions necessary to perfect and protect the Liens on the Collateral created under, and in the manner contemplated by, the Collateral Documents have been duly made or taken or otherwise provided for in a manner reasonably acceptable to the Administrative Agent and are in full force and effect and the Collateral Documents create in favor of the Administrative Agent for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected first priority Lien in the Collateral, securing the payment of the Secured Obligations, subject to Customary Permitted Liens. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the Liens created or permitted under the Loan Documents.

ARTICLE V

Financial Covenants

                    The Borrower agrees with the Lenders, the Issuers and the Administrative Agent to each of the following as long as any Obligation or any Commitment remains outstanding and, in each case, unless the Requisite Lenders otherwise consent in writing:

                    Section 5.1 Maximum Leverage Ratio

                    As of each Calculation Date, the Borrower shall maintain a Leverage Ratio for the Measurement Period ending on such Calculation Date of not more than 5.6 to 1.0.

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                    Section 5.2 Minimum Interest Coverage Ratio

                    As of each Calculation Date, the Borrower shall cause the Interest Coverage Ratio for the Measurement Period ending on such Calculation Date of at least 2.0 to 1.0.

ARTICLE VI

Reporting Covenants

                    Each of Holdings and the Borrower agrees with the Lenders, the Issuers and the Administrative Agent to each of the following, as long as any Obligation or any Commitment remains outstanding and, in each case, unless the Requisite Lenders otherwise consent in writing:

                    Section 6.1 Financial Statements

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

                    (a) Quarterly Reports. In the case of each of the first three Fiscal Quarters of each Fiscal Year of MICT, within the earlier of (i) (A) 45 days, in the case of the Fiscal Quarter ending September 30, 2005 and (B) 40 days, in the case of each other Fiscal Quarter and (ii) 2 Business Days after the date such financial statements are filed with the Securities and Exchange Commission, financial information regarding MICT and its Subsidiaries (including the Loan Parties) consisting of Consolidated unaudited balance sheets as of the close of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and that portion of the Fiscal Year ending as of the close of such Fiscal Quarter, 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 position of the MICT and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in accordance with GAAP (subject to the absence of footnote disclosure and normal year-end audit adjustments).

                    (b) Annual Reports. Within the earlier of (i) 60 days after the end of each Fiscal Year and (ii) 2 Business Days after the date such financial statements are filed with the Securities and Exchange Commission, financial information regarding MICT and its Subsidiaries consisting of Consolidated balance sheets of MICT and its Subsidiaries as of the end of such Fiscal Year and related statements of income and cash flows of MICT 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 MICT being a going concern by the Borrower’s Accountants, together with the report of such accounting firm stating that (A) such Financial Statements fairly present, in all material respects, the Consolidated financial position of MICT and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except for changes with which the Borrower’s Accountants shall concur and that shall have been disclosed in the notes to the Financial Statements) and (B) the examination by the Borrower’s Accountants in connection with such Consolidated Financial Statements has been made in accordance with generally accepted auditing standards, and accompanied by a certificate stating that in the course of the regular audit of the business of MICT and its Subsidiaries such accounting firm has obtained no knowledge that a Default or Event of Default in respect of the financial covenants contained in Article V (Financial

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Covenants) has occurred and is continuing, or, if in the opinion of such accounting firm, a Default or Event of Default has occurred and is continuing in respect of such financial covenants, a statement as to the nature thereof.

                    (c) Compliance Certificate. Together with each delivery of any Financial Statement pursuant to clause (a) or (b) above, a certificate of a Responsible Officer of the Borrower (each, a “Compliance Certificate”) (i) showing in reasonable detail the calculations used in demonstrating compliance with each of the financial covenants contained in Article V (Financial Covenants), 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 Borrower proposes to take with respect thereto and (iii) showing in reasonable detail a list of all Capital Expenditures for the period covered by such Financial Statements, separately identifying maintenance Capital Expenditures and other Capital Expenditures.

                    Documents required to be delivered pursuant to Section 6.1(a) and (b) Financial Statements) or Section 6.4 (SEC Filings; Press Releases) below may (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents (or provides a link thereto) to its website on the Internet at www.macquarie.com/mic, (ii) on which the Administrative Agent has received written notice from the Borrower of the making or filing of any Financial Statement or other filing or registration and the same are continuously available on the Electronic Data Gathering Analysis and Retrieval (“EDGAR”) of the Securities and Exchange Commission or (iii) on which such documents are posted on the Borrower’s behalf on IntraLinks™ or other Approved Electronic Platform to which each Lender and each Administrative Agent have access; provided, that (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests in writing that the Borrower deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents in accordance with the foregoing clauses (i), (ii) and/or (iii) above and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.

                    Section 6.2 Default Notices

                    As soon as practicable, and in any event within five Business Days after a Responsible Officer of the Borrower or Holdings 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 Borrower or Holdings, as applicable, 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

                    (a) Promptly and in any event within five Business Days after a Responsible Officer of the Borrower or Holdings has actual knowledge of the existence thereof, the Borrower or Holdings, as applicable, shall give the Administrative Agent written notice of the commencement or pendency of all actions, suits and proceedings before any domestic or foreign

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Governmental Authority or arbitrator against Holdings, the Borrower or any of Subsidiary of Holdings that (i) seeks injunctive or similar relief or (ii) in the reasonable judgment of the Borrower or Holdings, that, if adversely determined, would reasonably be expected to have a Material Adverse Effect.

                    (b) Promptly, and in any event within five Business Days after a Responsible Officer of the Borrower or Holdings has actual knowledge of the existence thereof, the Borrower or Holdings, as applicable, shall give the Administrative Agent written notice of the institution of any proceeding against the Borrower, Holdings or any of their respective Subsidiaries with respect to, or the receipt of notice by the Borrower, Holdings or such Subsidiaries, of potential liability or responsibility for any actual or alleged violation of any Requirements of Law (including Environmental Laws and ERISA), the violation of which would reasonably be expected to have a Material Adverse Effect.

                    Section 6.4 SEC Filings; Press Releases

                    Promptly after the sending or filing thereof and in any event within two (2) Business Days of the filing thereof with the Securities and Exchange Commission, the Borrower shall send the Administrative Agent copies of (a) all reports that MICT sends to its security holders generally, (b) all reports and registration statements that MICT or any of its Subsidiaries files with the Securities and Exchange Commission or any national or foreign securities exchange or the National Association of Securities Dealers, Inc., (c) all press releases and (d) all other statements concerning material changes or developments in the business of any Loan Party made available by any Loan Party to the public or any other creditor.

                    Section 6.5 Acquisitions

                    The Borrower shall provide the Administrative Agent sufficiently in advance and in any case no later than 5 Business Days prior to the consummation of any Acquisition for which the aggregate consideration paid by Holdings or any of its Subsidiaries shall be equal to or greater than $25,000,000, a copy of the then most current draft of the applicable purchase agreement (or similar document), together with the financial model, financial information and financial analysis relating to the Person or assets being acquired prepared by or on behalf of Holdings or any of its Subsidiaries or furnished to Holdings or any of its Subsidiaries in connection with such Acquisition, except where the disclosure of such information is prohibited by any Requirement of Law or Contractual Obligation, in which case, the Borrower shall use commercially reasonable efforts to permit disclosure under such Requirement of Law or Contractual Obligation.

                    Section 6.6 Other Information

                    The Borrower shall provide the Administrative Agent or any Lender with such other information respecting the business, properties, financial condition or operations of Holdings, the Borrower or any Subsidiary of Holdings as the Administrative Agent or such Lender through the Administrative Agent may from time to time reasonably request, except where the disclosure of such information is prohibited by any Requirement of Law or Contractual Obligation, in which case, the Borrower shall use commercially reasonable efforts to permit disclosure under such Requirement of Law or Contractual Obligation.

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ARTICLE VII

Affirmative Covenants

                    Each of Holdings and the Borrower agrees with the Lenders, the Issuers and the Administrative Agent to each of the following, as long as any Obligation or any Commitment 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 the Borrower shall, and shall cause each Subsidiary of Holdings to, preserve and maintain its legal existence, rights (charter and statutory) and franchises, except in connection with Asset Sales or as permitted by 8.2 (Restriction on Fundamental Changes); provided, that (a) the foregoing shall not prohibit the termination of the legal existence of any Subsidiary or Holdings (other than the Borrower or any other Loan Party) to the extent that the Board of Directors (or equivalent governing body) or any committee thereof of the Borrower or Holdings, as the case may be, determines in good faith that such Subsidiary is no longer necessary in the conduct of the business of the Borrower or Holdings, as the case may be, and that the termination of the existence of such Subsidiary would not reasonably be likely to have a Material Adverse Effect and (b) none of the Borrower, Holdings or such Subsidiaries shall be required to preserve any right or franchise if the Board of Directors (or equivalent governing body) or any committee thereof of such Person determines that the preservation thereof is no longer desirable in the conduct of the business of the Borrower, Holdings or such Subsidiary, as the case may be, and that the loss thereof is not disadvantageous in any material respect to the Borrower, Holdings or such Subsidiary, as the case may be.

                    Section 7.2 Compliance with Laws, Etc.

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

                    Section 7.3 Payment of Taxes, Etc.

                    Each of Holdings and the Borrower shall, and Holdings shall cause each of its Subsidiaries to, pay and discharge before the same shall become delinquent, all lawful governmental claims, taxes, assessments, charges and levies, in each case to the extent material and except where contested in good faith, by proper proceedings and adequate reserves therefor have been established on the books of Holdings, the Borrower or the appropriate Subsidiary in conformity with GAAP.

                    Section 7.4 Access

                    Each of Holdings and the Borrower shall, and Holdings shall cause each of its Subsidiaries to, from time to time permit (at the expense of the Administrative Agent and the Lenders unless an Event of Default shall have occurred and be continuing) the Administrative Agent and the Lenders, or any agents or representatives thereof, within five Business Days after written notification of the same (except that during the continuance of an Event of Default, no such notice shall be required) during normal business hours to (a) examine and make copies of

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and abstracts from the records and books of account of Holdings, the Borrower and each Subsidiary of Holdings, (b) visit the properties of Holdings, the Borrower and each Subsidiary of Holdings, (c) discuss the affairs, finances and accounts of Holdings, the Borrower and each Subsidiary of Holdings with any of their respective officers or directors and (d) communicate (as long as no Event of Default shall have occurred and be continuing in the presence of a Responsible Officer of Holdings or the Borrower) directly with any of its certified public accountants (including the Borrower’s Accountants). Each of Holdings and the Borrower shall authorize its certified public accountants (including the Borrower’s Accountants), and shall cause the certified public accountants of any Subsidiary of Holdings, if any, to disclose in writing to the Administrative Agent or any Lender any and all financial statements and other information of any kind, as the Administrative Agent or any Lender (through the Administrative Agent) reasonably requests in writing with a copy to Holdings and that such accountants may have with respect to the business, financial condition, results of operations or other affairs of Holdings, the Borrower or any other Subsidiary of Holdings.

                    Section 7.5 Keeping of Books

                    Each of Holdings and the Borrower shall, and shall cause each Subsidiary of Holdings to keep, proper books of record and account, in which full and correct entries shall be made in conformity with GAAP of all financial transactions and the assets and business of Holdings, the Borrower and each such Subsidiary.

                    Section 7.6 Application of Proceeds

                    The Borrower (and, to the extent distributed to them by the Borrower, Holdings and each of its Subsidiaries) shall use the entire amount of the proceeds of the Loans as provided in Section 4.12 (Use of Proceeds).

                    Section 7.7 Additional Collateral

                    To the extent not delivered to the Administrative Agent on or before the Closing Date (including in respect of after-acquired Persons that become directly owned by any Loan Party after the Closing Date), Holdings and the Borrower agree promptly (and in any event, within 10 Business Days of the Closing Date or the date of acquisition of such property or Persons (or such later date as may be agreed to by the Administrative Agent)) to do, or cause each Loan Party to do, each of the following, unless otherwise agreed by the Administrative Agent:

                    (a) deliver to the Administrative Agent such duly-executed joinder and amendments to the Pledge Agreement and, if applicable, other Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent and as the Administrative Agent reasonably deems necessary or advisable in order to effectively grant to the Administrative Agent, for the benefit of the Secured Parties, a valid, perfected and enforceable first-priority security interest in the Stock and Stock Equivalents owned directly by any Loan Party in any acquired Person;

                    (b) deliver to the Administrative Agent all certificates, instruments and other documents representing all Pledged Stock and all other Stock and Stock Equivalents being pledged pursuant to the joinders and amendments executed pursuant to clause (a) above, together with, in the case of certificated Pledged Stock and other certificated Stock and Stock Equivalents,

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undated stock powers endorsed in blank, in each case executed and delivered by a Responsible Officer of such Loan Party;

                    (c) to take such other actions as are necessary to create, maintain or perfect the security interest required to be granted pursuant to clause (a) above, including the filing of UCC financing statements in such jurisdictions as may be required by the Collateral Documents or by applicable Requirements of Law as may be reasonably requested by the Administrative Agent;

                    provided that notwithstanding anything to the contrary in this Section 7.7, no Loan Party shall be required to pledge to the Administrative Agent pursuant to the Pledge Agreement or any other Loan Document any Stock or Stock Equivalents that constitute Excluded Equity unless and until such Stock or Stock Equivalents ceases to constitute Excluded Equity.

                    Section 7.8 Additional Guarantees

                    (a) In the event that Holdings forms any Subsidiary to hold the Stock of the Borrower, Holdings agrees to promptly (and in any event, within 10 Business Days of the formation of any such Subsidiary (or such later date as may be agreed to by the Administrative Agent)), and to cause each such Subsidiary to promptly, do each of the following, unless otherwise agreed by the Administrative Agent:

          (i) deliver to the Administrative Agent such duly executed supplements and amendments to the Guaranty, in form and substance reasonably satisfactory to the Administrative Agent and as the Administrative Agent reasonably deems necessary or advisable in order to ensure that each such Subsidiary guaranties, as primary obligor and not as surety, the full and punctual payment when due of the Obligations or any part thereof;

          (ii) deliver to the Administrative Agent such documents required to be delivered pursuant to Section 7.7 (Additional Collateral); and

          (iii) to take such other actions necessary or reasonably advisable to ensure the validity or continuing validity of the guaranties required to be given pursuant to clause (a) above.

                    (b) In the event that Holdings forms any Subsidiary to hold (directly or indirectly) the Stock of the Borrower, Holdings agrees to promptly (and in any event, within 30 days of the formation of any such Subsidiary (or such later date as may be agreed to by the Administrative Agent)), and to cause each such Subsidiary to promptly, if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described in clause (a) above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.

                    Section 7.9 Further Assurances

                    At the Borrower’s cost and expense, upon the reasonable request of the Administrative Agent, duly execute and deliver or cause to be duly executed and delivered, to the Administrative Agent such further instruments, documents, certificates, financing and continuation statements, and do and cause to be done such further acts (including filing Uniform

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Commercial Code and other financing statements and delivering to the Administrative Agent certificates representing the Pledged Stock) that may be reasonably necessary or advisable in the reasonable opinion of the Administrative Agent to carry out more effectively the provisions and purposes of this Agreement, the Guaranty, the Collateral Documents and the other Loan Documents or that may be required under applicable Requirements of Law in order to grant, preserve, protect and perfect the validity and priority of the security interests and Liens created or intended to be created by the Collateral Documents.

                    Section 7.10 Cash Collateral Accounts.

                    The Administrative Agent may establish one or more Cash Collateral Accounts with such depositaries and Securities Intermediaries as it in its sole discretion shall determine; provided, however, that no Cash Collateral Account shall be established with respect to the assets of any CFC. The Borrower agrees that each such Cash Collateral Account shall meet the requirements set forth in the definition of “Cash Collateral Account”. None of Holdings, the Borrower, any other Subsidiary of Holdings or any other Person claiming on behalf of or through Holdings, the Borrower or any Subsidiary of Holdings shall have any right to demand payment of any funds held in any Cash Collateral Account at any time prior to the termination of all outstanding Letters of Credit and the payment in full of all then outstanding and payable monetary Obligations. The Administrative Agent shall apply all funds on deposit in a Cash Collateral Account as provided in Section 2.12(g) (Payments and Computations).

ARTICLE VIII

Negative Covenants

                    Each of the Borrower and Holdings agrees with the Lenders, the Issuers and the Administrative Agent to each of the following, as long as any Obligation or any Commitment remains outstanding and, in each case, unless the Requisite Lenders otherwise consent in writing:

                    Section 8.1 Liens, Etc.

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

                    (a) Liens created pursuant to the Loan Documents; and

                    (b) Customary Permitted Liens on the assets of the Loan Parties.

                    Section 8.2 Restriction on Fundamental Changes

                    Neither Holdings nor the Borrower shall, nor shall they permit any Loan Party to:

     (a) consummate any Acquisition or create any Subsidiary unless at the time of such Acquisition or creation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;

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                    (b) except in connection with an Acquisition, merge or consolidate with any Person; provided, that the Borrower and Holdings may merge or consolidate with each other or any of their respective Subsidiaries as long as (i) the Borrower or Holdings, as the case may be, shall be the continuing or surviving entity and (ii) in the case of a merger or consolidation of the Borrower with or into Holdings, the Borrower shall be the continuing or surviving entity; or

                    (c) enter into any joint venture or partnership with any Person.

                    Section 8.3 Transactions with Affiliates

                    Neither Holdings nor the Borrower shall, nor shall they permit any Loan Party to, enter into any transaction of any kind with any Affiliate, whether or not in the ordinary course of business, other than (a) Permitted Affiliate Transactions or (b) on fair and reasonable terms not substantially less favorable to the Borrower, Holdings or such Loan Party, as the case may be, as would be obtainable by such Person at the time in a comparable arm’s length transaction with a Person other than an Affiliate.

                    Section 8.4 Accounting Changes; Fiscal Year

                    Neither Holdings nor the Borrower shall, nor shall they permit any Loan Party 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 8.5 No Speculative Transactions

                    Neither Holdings nor the Borrower shall, nor shall they permit any Loan Party to, engage in any speculative financial transactions involving Hedging Contracts, other credit derivatives or other financial instruments, except for the sole purpose of hedging in the normal course of business and consistent with industry practices.

                    Section 8.6 Certain Agreements

                    Holdings shall not make or agree to any amendment to or waivers or other modifications of any of the terms of the Trust Agreement or the Management Services Agreement unless (a) Holdings shall have delivered to the Administrative Agent a copy of any such proposed amendment, waiver or other modification at least 5 Business Days prior to the effectiveness thereof and (b) any such amendment, waiver or other modification would not reasonably be expected to materially adversely affect the interests of the Lenders.

ARTICLE IX

Events Of Default

                    Section 9.1 Events of Default

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

                    (a) the Borrower shall fail to pay any principal of any Loan or any Reimbursement Obligation when the same becomes due and payable; or

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                    (b) the Borrower shall fail to pay any interest on any Loan, any fee under any of the Loan Documents or any other Obligation (other than one referred to in clause (a) above) and such non-payment continues for a period of five 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 (Financial Covenants), 7.1 (Preservation of Corporate Existence, Etc.), 7.4 (Access), 7.6 (Application of Proceeds), 7.7 (Additional Collateral), 7.8 (Additional Guarantees) or Article VIII (Negative Covenants) 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 the Borrower becomes aware of such failure and (B) the date on which written notice thereof shall have been given to the Borrower by the Administrative Agent or any Lender; or

                    (e) (i) any Loan Party shall fail to make any payment on any Indebtedness of such Loan Party (other than the Obligations) and such failure relates to Indebtedness having a principal amount of $5,000,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and after giving effect to any applicable grace period specified in any agreement or instrument relating to such Indebtedness, (ii) any other event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness or (iii) 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 Loan Party 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 such Loan Party 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 of its property; provided, however, that, in the case of any such proceedings instituted against Holdings or the Borrower (but not instituted by Holdings or the Borrower) either such proceedings shall remain undismissed or unstayed for a period of 60 days or more or any action sought in such proceedings (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, such Person or any substantial part of such Person’s property) shall occur or (iii) Holdings or the Borrower 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) involving, in the case of money judgments, an aggregate amount in excess of $5,000,000 to the extent not

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covered by independent third-party insurance as to which the insurer does not deny coverage, shall be rendered against one or more of any Loan Party 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 60 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) (i) any material provision of any Loan Document after delivery thereof shall for any reason fail or cease to be valid and binding on, or enforceable against, any Loan Party party thereto (other than as a result of the payment in full of the Obligations and the termination of the Commitments hereunder), or any Loan Party shall so state in writing; or (ii) any Loan Party denies that it has any further liability or obligation under any Loan Document or purports to revoke, terminate or rescind any Loan Document; or

                    (i) any Collateral Document shall for any reason (other than pursuant to the terms thereof) 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

                    (j) there shall occur any Change of Control.

                    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 Borrower declare that all or any portion of the Commitments be terminated, whereupon the obligation of each Lender to make any Loan and each Issuer to Issue any Letter of Credit shall immediately terminate and (b) may and, at the request of the Requisite Lenders, shall, by notice to the 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 all such amounts and 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 the Borrower; provided, however, that upon the occurrence of the Events of Default specified in Section 9.1(f) (Events of Default), (A) the Commitments of each Lender to make Loans and the commitments of each Lender and Issuer to Issue or participate in Letters of Credit shall each automatically be terminated and (B) 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 the Borrower. In addition to the remedies set forth above, the Administrative Agent may exercise 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 Actions in Respect of Letters of Credit

                    At any time (i) upon the Facility Termination Date, (ii) after the Facility Termination Date when the aggregate funds on deposit in Cash Collateral Accounts shall be less than 105% of the Letter of Credit Obligations, and (iii) as may be required by Section 2.8(b) or (c) (Mandatory Prepayments), the Borrower shall pay to the Administrative Agent in immediately available funds at the Administrative Agent’s office referred to in Section 11.8 (Notices, Etc.), for deposit in a Cash Collateral Account, (A) in the case of clauses (i) and (ii) above, the amount required to that, after such payment, the aggregate funds on deposit in the

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Cash Collateral Accounts equals or exceeds 105% of the sum of all outstanding Letter of Credit Obligations and (B) in the case of clause (iii) above, the amount required by Section 2.8(b) or (c) (Mandatory Prepayments). The Administrative Agent may, from time to time after funds are deposited in any Cash Collateral Account, apply funds then held in such Cash Collateral Account to the payment of any amounts, in accordance with Section 2.8(b) or (c) (Mandatory Prepayments) and Section 2.12(g) (Payments and Computations), as shall have become or shall become due and payable by the Borrower to the Issuers or Lenders in respect of the Letter of Credit Obligations. The Administrative Agent shall promptly give written notice of any such application; provided, however, that the failure to give such written notice shall not invalidate any such application.

                    Section 9.4 Rescission

                    If at any time after termination of the Commitments or acceleration of the maturity of the Loans, the Borrower shall pay all arrears of interest and all payments on account of principal of the Loans and Reimbursement Obligations 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 (Amendments, Waivers, Etc.), then upon the written consent of the Requisite Lenders and written notice to the 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 and the Issuers to a decision that may be made at the election of the Requisite Lenders, and such provisions are not intended to benefit the Borrower and do not give the 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 and each Issuer hereby appoints Citicorp as the Administrative Agent hereunder and each Lender and each Issuer 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 and each Issuer 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, Issuers 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

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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 and each Issuer; 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 and the Issuers with respect to such action or (ii) is contrary to this Agreement or applicable law. The Administrative Agent agrees to give to each Lender and each Issuer 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 and the Issuers except to the limited extent provided in Section 2.6(b) (Evidence of Debt), 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, Issuer 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) 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) (Assignments and Participations), (b) may rely on the Register to the extent set forth in Section 2.6 (Evidence of Debt), (c) may consult with legal counsel (including counsel to the Borrower or any other Loan Party), 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 or Issuer and shall not be responsible to any Lender or Issuer for any statements, warranties or representations made by or on behalf of any Loan Party or any of such Loan Party’s Subsidiaries 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 or Issuer 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.

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                    Section 10.3 Posting of Approved Electronic Communications

                    (a) Each of the Lenders, the Issuers and Holdings and the Borrower agree, and Holdings and the Borrower shall cause each other Loan Party to agree, that the Administrative Agent may, but shall not be obligated to, make the Approved Electronic Communications available to the Lenders and Issuers by posting such Approved Electronic Communications on IntraLinks™ 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, the Issuers, Holdings and the Borrower acknowledges and agrees, and each of Holdings and the Borrower acknowledge and agree on behalf of their respective Subsidiaries, 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, the Issuers, Holdings and the Borrower hereby approves, and the Borrower and Holdings approve on behalf of their respective Subsidiaries, distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes, and Holdings and the Borrower shall cause each other Loan Party 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, without limitation, 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, the Issuers, Holdings and the Borrower agree, and Holdings and the Borrower agree on behalf of their respective Subsidiaries, 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.

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                    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” and any similar terms shall, unless the context clearly otherwise indicates, include, without limitation, the Administrative Agent in its individual capacity as a 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 and each Issuer 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 the Borrower and each other Loan Party in connection with the making and continuance of the Loans and with the issuance of the Letters of Credit. Each Lender and each Issuer 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.

                    Section 10.6 Indemnification

                    Each Lender agrees to indemnify the Administrative Agent and the Agent Affiliates (to the extent not reimbursed by the Borrower), 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 the Agent Affiliates 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 Agent 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 the 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 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,

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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 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 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 Collateral and Guarantee Matters

                    (a) Each Lender and each Issuer 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, Issuers 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 and the Issuers 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 the Borrower or any of its Subsidiaries, (iii) act as collateral agent for the Lenders, the Issuers 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 and Issuer to act as collateral sub-agent for the Administrative Agent, the Lenders and the Issuers 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, the Issuers 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 and the Issuers hereby consents to the release and hereby directs, in accordance with the terms hereof, the Administrative Agent to release any Lien held by the Administrative Agent for the benefit of the Lenders and the issuers against any of the following:

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          (i) all of the Collateral and all Loan Parties, upon termination of the Commitments and payment and satisfaction in full of all Loans, all Reimbursement Obligations and all other Obligations that the Administrative Agent has been notified in writing are then due and payable (and, in respect of contingent Letter of Credit Obligations, with respect to which cash collateral has been deposited or a back-up letter of credit has been issued, in either case in the appropriate currency and on terms satisfactory to the Administrative Agent and the applicable Issuers); and

          (ii) any part of the Collateral sold or disposed of by a Loan Party if such Asset Sale 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 and the Issuers 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.

                    (c) Each of the Lenders and the Issuers hereby consents to the release and hereby directs, in accordance with the terms hereof, the Administrative Agent, on behalf of the Guarantied Parties (as defined in the Guaranty) to release any Guarantor from its obligations under the Guaranty upon:

          (i) termination of the Commitments and payment and satisfaction in full of all Loans, all Reimbursement Obligations and all other Obligations that the Administrative Agent has been notified in writing are then due and payable (and, in respect of contingent Letter of Credit Obligations, with respect to which cash collateral has been deposited or a back-up letter of credit has been issued, in either case in the appropriate currency and on terms satisfactory to the Administrative Agent and the applicable Issuers); or

          (ii) the sale or other disposition of such Person pursuant to an Asset Sale, provided, that the Net Cash Proceeds therefrom shall have been applied to repay the Obligations to the extent required by Section 2.8 (Mandatory Prepayments).

                    (d) Upon request by the Administrative Agent at any time, the Requisite Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty, pursuant to this Section 10.8.

                    (e) Each of the Lenders and the Issuers hereby (i) authorizes and directs the Administrative Agent to execute, on its behalf, an acknowledgment to the letter agreement attached hereto as Exhibit I-1 (Form of GMAC Consent) (the “GMAC Consent”) and (ii) acknowledges and agrees to be bound by the terms of the GMAC Consent.

                    (f) Each of the Lenders and the Issuers hereby authorizes and directs the Administrative Agent to execute, on its behalf, the consent and agreement attached hereto as Exhibit I-2 (Form of Balfour Beatty Consent) (the “Balfour Beatty Consent”) and (ii) acknowledges and agrees to be bound by the terms of the Balfour Beatty Consent.

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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 an amendment to cure any ambiguity, omission, defect or inconsistency, signed by the Administrative Agent and the Borrower, (y) 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 (z) 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 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 (Conditions Precedent to Effectiveness) or 3.2(b) (Conditions Precedent to Each Loan and Letter of Credit), 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 (Conditions Precedent to Effectiveness), subject to the provisions of Section 3.3 (Determinations of Conditions Precedent to Effectiveness);

          (ii) increase the Commitment of such Lender or subject such Lender to any additional obligation; provided, however, that any such increase with respect to the aggregate Commitment shall require the consent of the Requisite Lenders;

          (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 2.8 (Mandatory Prepayments) does not provide for scheduled dates fixed for payment) or for the reduction of such Lender’s Commitment;

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

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

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

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

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          (viii) release all or substantially all of the Collateral except as provided in Section 10.8(b) (Collateral and Guarantee Matters) or release the Borrower from its payment obligation to such Lender under this Agreement or the Notes owing to such Lender (if any) or release the Guarantor from its obligations under the Guaranty; or

          (ix) amend Section 10.8(b) (Collateral and Guarantee Matters), Section 11.7 (Sharing of Payments, Etc.), this Section 11.1 or either definition of the terms “Requisite Lenders” or “Ratable Portion”;

and provided, further, that (A) any modification of the application of payments to the Loans pursuant to Section 2.8 (Mandatory Prepayments) shall require the consent of the Requisite Lenders, (B) 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) (Assignments and Participations), affect the grant or nature of such option or the right or duties of such Special Purpose Vehicle hereunder and (C) 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 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 or any Issuer.

          (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 the Borrower in any case shall entitle the 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 Borrower’s request, an Eligible Assignee acceptable to the Administrative Agent shall have the right with the Administrative Agent’s consent and in the Administrative Agent’s sole discretion (but shall have no obligation) 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 Commitments and Outstandings of such Non-Consenting Lender if such Non-Consenting Lender is a Lender for an amount equal to the principal balance of all such 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 (A) the Administrative Agent shall have received from such Eligible Assignee an agreement in form and substance satisfactory to the Administrative Agent and the Borrower whereby such Eligible Assignee shall agree to be bound by the terms hereof and (B) 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 and Acceptance to evidence such sale and

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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 with respect to the Loans and the Letters of Credit); provided, however, that (i) if any such assignment shall be of the assigning Lender’s Outstandings and Commitments, such assignment shall cover the same percentage of such Lender’s Outstandings 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 $10,000,000 or an integral multiple of $1,000,000 in excess thereof, except, in either case, with the consent of the Borrower and the Administrative Agent 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 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 Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing; and provided, further, that no such sale, transfer, negotiation or assignment shall be permitted if, after giving effect to such sale, transfer, negotiation or assignment, Affiliates of the Borrower that are Lenders would hold, collectively, greater than or equal to 50% of the outstanding Loans or Commitments, as the case may be, under the Facility.

          (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 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 if such Lender were an Issuer, of such Issuer hereunder and thereunder, 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 (Notices, Etc.) 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 Issuers and the

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principal amount of the Loans and Reimbursement Obligations 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 Borrower. Within five Business Days after its receipt of such notice, the 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 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 (Form of Note).

          (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 (A) 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 (B) 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), to (A) without notice to or consent of the Administrative Agent or the Borrower, any Federal Reserve Bank (pursuant to Regulation A of the Federal Reserve Board) and (B) without consent of the Administrative Agent or the Borrower, (1) any holder of, or trustee for the benefit of, the holders of such Lender’s Securities and (2) any Special Purpose Vehicle to which such Lender has granted an option pursuant to clause (i) above;

provided, however, that no such assignment or grant shall release such Lender from any of its obligations hereunder except as expressly provided in clause (i) above and except, in the case of a subsequent foreclosure pursuant to an assignment as collateral, if such foreclosure is made in compliance with the other provisions of this Section 11.2 other than this clause (e) or clause (f) below. 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

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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 Borrower 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, Issuers 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 2.14 (Capital Adequacy) and 2.15 (Taxes) and of 2.13(d) (Illegality) 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 2.14 (Capital Adequacy), 2.15 (Taxes) or 2.13(d) (Illegality) to any such Special Purpose Vehicle and any such Lender any payment in excess of the amount the 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 the 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 with respect to the Loans and Letters of Credit). 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) (Collateral and Guarantee Matters). 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 Borrower, 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 2.14 (Capital Adequacy) and 2.15 (Taxes) and of 2.13(d) (Illegality) as if it were a Lender; provided, however, that anything herein to the contrary notwithstanding, the Borrower shall not, at any time, be obligated to make under Section 2.14 (Capital Adequacy), 2.15 (Taxes) or 2.13(d) (Illegality) to the participants in the rights and obligations of any Lender (together with such Lender) any payment in excess of the amount the Borrower 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 Borrower, the Administrative Agent or the other Lenders.

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          (g) Any Issuer may at any time assign its rights and obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the Borrower, the Administrative Agent, such Issuer and such Lender, subject to the provisions of Section 2.6(b) (Evidence of Debt) relating to notations of transfer in the Register. If any Issuer ceases to be a Lender hereunder by virtue of any assignment made pursuant to this Section 11.2, then, as of the effective date of such cessation, such Issuer’s obligations to Issue any Letters of Credit pursuant to Section 2.3 (Letters of Credit) shall terminate and such Issuer shall be an Issuer hereunder only with respect to outstanding Letters of Credit issued prior to such date.

          Section 11.3 Costs and Expenses

          (a) The Borrower shall, within 10 days after presentation of a reasonably detailed invoice, pay or reimburse the Administrative Agent for all of the Administrative Agent’s reasonable and documented third party audit, legal, appraisal, valuation, filing, document duplication and reproduction and investigation expenses and for all other reasonable out-of-pocket costs and expenses of every type and nature (including the reasonable fees, expenses and disbursements of the Administrative Agent’s counsel, Weil, Gotshal & Manges LLP, local legal counsel, auditors, accountants, appraisers, printers, insurance and environmental advisors, and other consultants and agents) incurred by the Administrative Agent in connection with any of the following: (i) the Administrative Agent’s audit and investigation of the Borrower and its Subsidiaries in connection with the preparation, negotiation or execution of any Loan Document or the Administrative Agent’s periodic audits of the Borrower or any of its Subsidiaries, as the case may be, (ii) the preparation, negotiation, execution or interpretation of this Agreement (including, without limitation, the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions To Loans And Letters Of Credit)), 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 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 Holdings’ Subsidiaries, any Acquisition, 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 Holdings’ Subsidiaries, any Acquisition, 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.

          (b) The Borrower further agrees to pay or reimburse the Administrative Agent and each of the Lenders and Issuers upon demand for all out-of-pocket costs and expenses, including reasonable and documented attorneys’ fees (including costs of settlement), incurred by the Administrative Agent, such Lenders or such Issuers 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, (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, (iii) in commencing, defending or

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intervening in any litigation or in filing a petition, complaint, answer, motion or other pleadings in any legal proceeding relating to the Obligations, any Loan Party, any of the Borrower’s Subsidiaries and related to or arising out of the transactions contemplated hereby or by any other Loan Document or (iv) in taking any other action in or with respect to any suit or proceeding (bankruptcy or otherwise) described in clause (i), (ii) or (iii) above.

          Section 11.4 Indemnities

          (a) The Borrower agrees to indemnify and hold harmless the Administrative Agent, the Arranger, each Lender and each Issuer 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 (Conditions To Loans And Letters Of Credit) (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 Letter of Credit, 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 Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “Indemnified Matters”); provided, however, that the Borrower shall not have any liability under this Section 11.4 to an Indemnitee with respect to any Indemnified Matter that has resulted primarily from the gross negligence or willful misconduct of that Indemnitee, or a material breach in bad faith by such Indemnitee of its obligations hereunder or under any other Loan Document, in each case, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. 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 Holdings or any of its Subsidiaries involving any of its Real Property or personal property, 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 Holdings or any of its Subsidiaries, (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 Holdings or any of its Subsidiaries, or the owner, lessee or operator of any property of Holdings or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent attributable solely to acts of the Administrative Agent, such Lender or such Issuer or any agent on behalf of the Administrative Agent, such Lender or such Issuer.

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          (b) The Borrower shall indemnify the Administrative Agent, the Lenders and each Issuer for, and hold the Administrative Agent, the Lenders and each issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent, the Lenders and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.

          (c) Each Indemnitee agrees that in the event that any investigation, litigation or proceeding is asserted or threatened in writing or instituted against it or any other Indemnitee for which any Indemnitee may desire indemnity or defense hereunder, such Indemnitee shall notify the Borrower in writing of such event; provided that failure to so notify the Borrower shall not affect the right of any Indemnitee to seek indemnification hereunder. The 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 the Borrower, in any event, may participate in the defense thereof with legal counsel of the Borrower’s 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. No action taken by legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Borrower’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.

          (d) 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) The 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, except to the extent such liability is determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnitee’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, without limitation, any loss of profits, business or anticipated savings). Each of Holdings and the 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, ISSUER 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

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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 PRIMARILY FORM 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 Holdings or the 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 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 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 (Right of Set-off) or otherwise) of the Loans owing to it, any interest thereon, fees in respect thereof or amounts due pursuant to Section 11.3 (Costs and Expenses)or 11.4 (Indemnities) (other than payments pursuant to Section 2.13 (Special Provisions Governing Eurodollar Rate Loans), 2.14 (Capital Adequacy) or 2.15 (Taxes) or otherwise receives any Collateral or any “Proceeds” (as defined in the Pledge Agreement) of Collateral (other than payments pursuant to Section 2.13 (Special Provisions Governing Eurodollar Rate Loans), 2.14 (Capital Adequacy) or 2.15 (Taxes) (in each case, whether voluntary, involuntary, through the exercise of any right of set-off or otherwise (including pursuant to Section 11.6 (Right of Set-off))) 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) The 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

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such participation as fully as if such Lender were the direct creditor of the 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:

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(i) if to the Borrower:

MACQUARIE INFRASTRUCTURE COMPANY INC.
125 W. 55th Street
New York, New York 10019
Attention: David Mitchell, Chief Financial Officer
Telecopy no: (212) 231-1828
E-Mail Address: david.mitchell@macquarie.com

(ii) if to Holdings:

MACQUARIE INFRASTRUCTURE COMPANY LLC
125 W. 55th Street
New York, New York 10019
Attention: David Mitchell, Chief Financial Officer
Telecopy no: (212) 231-1828
E-Mail Address: david.mitchell@macquarie.com

                    (iii)    if to any Lender, at its Domestic Lending Office specified opposite its name on Schedule II (Applicable Lending Offices and Addresses for Notices) or on the signature page of any applicable Assignment and Acceptance;

                    (iv)    if to any Issuer, at the address set forth under its name on Schedule II (Applicable Lending Offices and Addresses for Notices); and

                    (v)    if to the Administrative Agent:

CITICORP NORTH AMERICA, INC.
2 Penns Way, Suite 110
New Castle, DE 19720
Attention: Annemarie E. Pavco
Phone: 302-894-6010
Telecopy: 212-994-0849
E-Mail Address: annemarie.e.pavco@citigroup.com

with a copy to:

CITICORP NORTH AMERICA, INC.
388 Greenwich Street, 20th Floor
New York, NY 10013
Attention: Scott Sutliff, Director
Phone: 212-816-7492
Telecopy: 646-862-8021
E-Mail Address: scott.sutliff@citigroup.com

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

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          (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 mail, when deposited in the 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 (The Facility) or Article X (The Administrative Agent) 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 Communications in an electronic/soft medium in a format 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 Borrower. Nothing in this clause (c) shall prejudice the right of the Administrative Agent or any Lender or Issuer to deliver any Approved Electronic Communication to any Loan Party in any manner authorized in this Agreement or to request that the Borrower effect delivery in such manner.

          Section 11.9 No Waiver; Remedies

          No failure on the part of any Lender, Issuer 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 Borrower, Holdings and the Administrative Agent and when the Administrative Agent shall have been notified by each Lender and Issuer that such Lender or Issuer has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower and Holdings, the Administrative Agent and each Lender and Issuer and, in each case, their respective successors and assigns; provided, however, that neither Holdings nor the Borrower shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders.

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          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 of the Borrower and Holdings 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) 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 Borrower or any other Loan Party in any other jurisdiction.

          (c) If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase Dollars with such other currency at the spot rate of exchange quoted by Citibank at 11:00 a.m. (New York time) on the Business Day preceding that on which final judgment is given, for the purchase of Dollars, for delivery two Business Days thereafter.

          Section 11.13 Waiver of Jury Trial

          Each of the Administrative Agent, the Lenders, the Issuers, Holdings and the 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, any Lender or any Issuer shall be under any obligation to marshal any assets in favor of the Borrower or any other Person or against or in payment of any or all of the Obligations. To the extent that the Borrower makes a payment or payments to the Administrative Agent, the Lenders or the Issuers 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.

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          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 immediately followed by a reference in parenthesis to the title of the Section containing such clause, sub-clause or subsection is a reference to such clause, sub-clause or subsection and not to the entire Section; provided, however, that, in case of direct conflict between the reference to the title and the reference to the number of such Section, the reference to the title shall govern absent manifest error. If any reference to the number of a Section (but not to any clause, sub-clause or subsection thereof) is followed immediately by a reference in parenthesis to the title of a Section, the title reference shall govern in case of direct conflict absent manifest error.

          Section 11.16 Patriot Act Notice

          The Administrative Agent and the Lenders hereby notify the Borrower that pursuant to the requirements of the Patriot Act, each Lender is required to obtain, verify and record information that identifies the Borrower, which information includes the name, address, tax identification number and other information regarding the Borrower that will allow such Lender to identify the Borrower in accordance with the Patriot Act. This notice is given in accordance with the requirements of the Patriot Act and is effective as to each Lender.

          Section 11.17 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 Borrower and the Administrative Agent.

          Section 11.18 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 11.19 Confidentiality

          Each Lender and the Administrative Agent agree to maintain information obtained by it pursuant hereto and the other Loan Documents confidential in accordance with such Lender’s or the Administrative Agent’s, as the case may be, customary practices and agrees that it shall only use such information in connection with the transactions contemplated by this Agreement and not disclose any such information other than (a) to such Lender’s or the

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Administrative Agent’s, as the case may be, employees, representatives and agents that are or are expected to be involved in the evaluation of such information in connection with the transactions contemplated by this Agreement and are advised of the confidential nature of such information, (b) to the extent such information presently is or hereafter becomes available to such Lender or the Administrative Agent, as the case may be, on a non-confidential basis from a source other than Holdings or the Borrower, (c) to the extent disclosure is required by law, regulation or judicial order or requested or required by any regulatory authority or auditors of such Lender or the Administrative Agent or (d) to current or prospective assignees, participants and Special Purpose Vehicle grantees of any option described in Section 11.2(f) (Assignments and Participations), contractual counterparties in any Hedging Contract permitted hereunder and to their respective legal or financial advisors, in each case and to the extent such assignees, participants, grantees or counterparties agree to be bound by, and to cause their advisors to comply with, the provisions of this Section 11.19.

[Signature Pages Follow]

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     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.

MACQUARIE INFRASTRUCTURE      COMPANY INC. (D/B/A MACQUARIE      INFRASTRUCTURE COMPANY (US)),      as Borrower
By:	/s/ Peter Stokes
	Name:	Peter Stokes
	Title:	Chief Executive Officer

MACQUARIE INFRASTRUCTURE COMPANY LLC.,      as Holdings
By:	/s/ Peter Stokes
	Name:	Peter Stokes
	Title:	Chief Executive Officer

CITICORP NORTH AMERICA, INC.,      as Administrative Agent and Lender
By:	/s/ A. Licata
	Name:	A. Licata
	Title:	Director

CITIBANK, N.A.,      as Issuer
By:	/s/ A. Licata
	Name:	A. Licata
	Title:	Director

[Signature Page To Macquarie Credit Agreement]

CREDIT SUISSE, CAYMAN ISLANDS BRANCH,      as Lender and Issuer
By:	/s/ Ian Nalitt
	Name:	Ian Nalitt
	Title:	Vice President
By:	/s/ Thomas R. Cantello
	Name:	Thomas R. Cantello
	Title:	Vice President

MACQUARIE BANK LIMITED,      as Lender and Issuer
By:	/s/ Helen Winterbothem
	Name:	Helen Winterbothem
	Title:	Division Director Investment Banking Group
By:	/s/ Peter Farthing
	Name:	Peter Farthing
	Title:	Legal Counsel Investment Banking Group

MERRILL LYNCH CAPITAL CORPORATION,      as Lender
By:	/s/ Sheila McGillicuddy
	Name:	Sheila McGillicuddy
	Title:	Vice President

[Signature Page To Macquarie Credit Agreement]

EX-31.1

Exhibit 31.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

PURSUANT TO RULE 13a-14(a)/15d-14(a)

I, Peter Stokes, certify that:

1.	I have reviewed this quarterly report on Form 10-Q of Macquarie Infrastructure Company Trust and Macquarie Infrastructure Company LLC (the “registrant”);
2.	Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.	Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.	The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and have:

a)	designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)	evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
c)	disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):

a)	all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b)	any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 14, 2005

/s/ Peter Stokes  

Peter Stokes 

Chief Executive Officer 

48

EX-31.2

Exhibit 31.2

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

PURSUANT TO RULE 13a-14(a)/15d-14(a)

I, David Mitchell, certify that:

1.	I have reviewed this quarterly report on Form 10-Q of Macquarie Infrastructure Company Trust and Macquarie Infrastructure Company LLC (the “registrant”);
2.	Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.	Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.	The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and have:

a)	designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)	evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
c)	disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):

a)	all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b)	any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 14, 2005

/s/ David Mitchell  

David Mitchell 

Chief Financial Officer 

49

EX-32.1

Exhibit 32.1

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of Macquarie Infrastructure Company Trust (the “Trust”) and Macquarie Infrastructure Company LLC (the “Company”) on Form 10-Q for the quarterly period ended September 30, 2005 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Peter Stokes, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge and belief:

(1) the Report fully complies with the requirements of Section 13(a) or 15(b) of the Securities Exchange Act of 1934; and

(2) the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Trust and the Company.

	/s/ Peter Stokes
	Peter Stokes
November 14, 2005	Chief Executive Officer

A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.

50

EX-32.2

Exhibit 32.2

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of Macquarie Infrastructure Company Trust (the “Trust”) and Macquarie Infrastructure Company LLC (the “Company”) on Form 10-Q for the quarterly period ended September 30, 2005, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, David Mitchell, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge and belief:

(1)	the Report fully complies with the requirements of Section 13(a) or 15(b) of the Securities Exchange Act of 1934; and
(2)	the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Trust and the Company.

	/s/ David Mitchell
	David Mitchell
November 14, 2005	Chief Financial Officer

A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.

51

EX-99.2

Macquarie Infrastructure Company LLC EXHIBIT 99.2

125 W. 55th Street
New York, NY 10019
USA

Media Release

MACQUARIE INFRASTRUCTURE COMPANY REPORTS

THIRD QUARTER 2005 FINANCIAL RESULTS

New York, NY — November 14, 2005 - Macquarie Infrastructure Company (the “Company” or “MIC”) (NYSE: MIC) announced the consolidated results of its operations for the quarter ended September 30, 2005. The Company reported net income for the period of $1.3 million or $.05 per share on revenue of $79.9 million. MIC generated cash from operations during the period of $15.9 million. The results reflect the continued growth of MIC’s airport services and district energy businesses, offset by modest losses in its airport parking business and an expected level of return on its investments.

“In addition to reporting continued growth in cash flow from operations this quarter, we are pleased to have announced the acquisition of a 19^th fixed base operation by our airport services business,” said Peter Stokes, Macquarie’s Chief Executive Officer. “As important, the strong deal flow that we have discussed in prior quarters resulted in the announcement of our intent to acquire The Gas Company in Hawaii.”

Cash from operations included a $2.0 million share of earnings from the Company’s joint venture ownership of the Yorkshire Link toll road. Results for the quarter were partially offset by due diligence expenses of $1.7 million incurred in connection with an unsuccessful acquisition bid.

Earnings before interest, taxes, depreciation and amortization (“EBITDA”) was $15.7 million for the quarter. For a reconciliation of net income to EBITDA, please see the last page of this release.

FINANCIAL HIGHLIGHTS

MIC benefited from improved performance in its airport services business and its district energy business offset by modest losses in its airport parking business. Revenue from the airport services, airport parking and district energy businesses increased by 18.5%, 2.8% and 12.7%, on an organic basis, respectively, over the quarter ended September 30, 2004. The Company’s results for the quarter ended September 30, 2005 include the following highlights:

• Consolidated revenue of $79.9 million — a 35.2% increase over 3Q’04;

• Consolidated net income of $1.3 million or $0.05 per share;

• Cash from operations of $15.9 million or $0.59 cents per share;

• EBITDA (earnings before interest, taxes, depreciation and amortization) of $15.7 million or $0.58 per share;

• The Company successfully completed the acquisition of an FBO by its airport services business and made the payment of a deposit in connection with its proposed acquisition of The Gas Company which resulted in cash and cash equivalents at quarter end decreasing to $43.5 million from $120.3 million at June 30, 2005.

DIVIDENDS

On November 14, 2005, the Company’s Board of Directors declared a dividend to shareholders for the quarter ended September 30, 2005 of $0.50 per share. Shares of trust stock will trade ex-dividend on December 1, 2005. The dividend will be payable on December 9, 2005 to shareholders of record at the close of business on December 6, 2005.

The Company intends to declare and pay regular quarterly cash distributions on all outstanding shares. The Company anticipates declaring and paying a quarterly distribution for the quarter ending December 31, 2005 of $0.50 per share.

The Company’s dividend policy is based on the predictable and stable cash flows of its businesses and investments. The Company’s intention is to distribute to its shareholders the majority of its cash available for distribution and not to retain significant cash balances in excess of prudent reserves.

ESTIMATED THIRD QUARTER CASH AVAILABLE FOR DISTRIBUTION

The Company believes that EBITDA, in addition to GAAP measures, provides insight into the performance of its operating businesses and its ability to service its obligations and support its ongoing dividend policy. However, EBITDA does not reflect other cash items that management considers in estimating cash available for distribution.

The following table details year-to-date cash receipts and payments that are not reflected on the Company’s income statement in order to provide additional insight into management’s estimate of cash available for distribution. The Company believes that cash generated by its businesses and investments, plus its cash in acquired businesses (net of reserves and including an Atlantic purchase price adjustment) will be sufficient to meet its indicated dividend payments in 2005.

The Company’s airport services, airport parking and district energy businesses experience seasonal fluctuations in revenue, although the causes of seasonality are specific to each. In general, the district energy business revenue is positively correlated to the warmer quarters of the year in which the demand for cooling services increases. Similarly, the airport parking business should benefit from increased leisure travel in the summer and holiday periods. The airport services business revenue tends to be fairly constant with only minor third quarter downturn at those locations dominated by business travel.

In the third quarter of 2005 the Company’s businesses generated $15.9 million, or $.59 per share, in cash from operations. Through the first nine months of 2005 those businesses generated cash from operations of $36.7 million, or $1.36 per share. Again adjusting for timing of certain receipts and payments, the Company now estimates year to date cash available for distribution to be $37.1 million, or $1.37 per share. The year-to-date figure reflects an adjustment to the estimate of cash available for distribution in the second quarter. The adjustment increases the additional cash item “Changes in working capital” in the second quarter by $1.9 million. Estimated cash available for distribution in the third quarter is $.48 per share.

	($ Millions)
Cash from operations	$	36.7
Additional cash items
Changes in Working Capital		0.9
Maintenance CAPEX		-2.6
Net cash receipts, Aladdin settlement		0.7
Principal payments		-1.2
Prior year dividend		1.7
Unsuccessful acquisition bid		1.7
YLL principal payment received		0.9
Sub Total		38.9
Adjustments
Base management fees		-2.4
GAH acquisition costs		0.9
Investment distRibution annualization		0.4
Maintenance CAPEX annualization		-0.6
Sub Total		-1.7
Estimated Cash Available for Distribution	$	37.1

• Additional cash items and adjustments reflect the following:

• Normalization of working capital changes including MCG dividend accrued in 2004 and received in 2005;

• Due diligence costs related to unsuccessful acquisition bid;

• Base management fees to the Company’s manager that are paid in arrears;

• General Aviation Holdings (“GAH”) acquisition costs in first quarter income statement data that were funded from IPO proceeds;

• Expected annual distributions from investments of $21.7 million, up from $21.3 million, and of which $15.9 million has been received year to date;

• Expected maintenance capex of $5.5 million annually, up slightly from $5.2 million, funded from operating cash flow, but not spent evenly throughout the year.

BUSINESS/SEGMENT HIGHLIGHTS FOR THE QUARTER ENDED SEPTEMBER 30, 2005

     The following is a segment analysis of results from operations for the quarter and year to date periods ended September 30, 2005, compared to results for the quarter and year to date periods ended September 30, 2004, prior to the Company’s acquisition of the businesses in these segments.

     The Company has included EBITDA, a non-GAAP financial measure, on both a consolidated basis as well as for each of its segments as it considers it to be an important measure of its overall performance. The Company believes EBITDA provides additional insight into the performance of its operating companies and its ability to service its obligations and support its ongoing dividend policy.

AIRPORT SERVICES

	Sept		Sept		Quarter on
	Quarter		Quarter		Quarter			9 Months		9 Months		Year on Year
($ in Millions)	2005		2004		Growth %			2005		2004		Growth %
Revenue
Fuel		36.3		25.1		44.4	%		100.9		75.0		34.5	%
Non Fuel		13.4		9.0		48.3	%		40.5		30.5		33.0	%
Total Revenue		49.7		34.2		45.5	%		141.4		105.5		34.1	%
EBITDA		10.4		3.5		197.0	%		29.8		13.9		114.7	%

For a reconciliation of segment Net Income to EBITDA, please see our report on Form 10-Q

Key Factors Affecting Operating Results

• Contribution of positive operating results from two new FBOs (GAH) in California acquired in January 2005 and one FBO in Las Vegas acquired in August 2005

• Higher average dollar per gallon fuel margins at existing locations

• Fuel volume generally flat year over year

• Continued increase in fuel prices

• Higher rental income from new hangers

• No significant effect on our results from recent hurricanes

• High 2005 first quarter de-icing revenues

Note: MIC intends to refinance two existing debt facilities at its airport services business with a single debt facility. The existing facilities provide for $196.5 million of term debt, plus a $3 million short term revolver and have a weighted average margin of 2.75%. The new debt facility is expected to provide for aggregate term loan borrowings of $300 million and a $5 million revolver, of which airport services would expect to initially draw $301 million. The new facility is expected to have a term of 5 years. Amounts borrowed under the facility are expected to bear interest at the rate of 1.75% per annum over LIBOR for the first three years and 2.00% per annum over LIBOR in the fourth and fifth years. The airport services business intends to have interest rate swap arrangements in place for a minimum of 75% of the aggregate term loan.

AIRPORT PARKING

	Sept			Sept			Quarter on
	Quarter			Quarter			Quarter			9 Months			9 Months			Year on Year
($ in Millions)	2005			2004			Growth %			2005			2004			Growth %
Revenue		14.5			12.9			11.9	%		42.0			38.0			10.5	%
EBITDA		3.2			2.8			15.1	%		9.4			9.3			0.8	%
EBITDA Margin		21.9	%		21.3	%		2.9	%		22.3	%		24.5	%		-8.8	%

For a reconciliation of segment Net Income to EBITDA, please see our report on Form 10-Q

Key Factors Affecting Operating Results

• An increase in cars out at comparable locations plus revenue at new locations

• Reduced discounting and promotional activity contributed to the 1.5% increase in average revenue per car out for comparable locations during the quarter

• Higher EBITDA reflects better operating margins at our comparable locations and lower start up costs related to new locations

DISTRICT ENERGY

	Sept			Sept			Quarter on
	Quarter			Quarter			Quarter			9 Months			9 Months			Year on Year
($ in Millions)	2005			2004			Growth %			2005			2004			Growth %
Revenue
Capacity		4.2			4.1			2.0	%		12.4			12.2			1.1	%
Consumption		9.8			7.3			33.4	%		16.8			12.8			31.3	%
Lease and Other		1.8			0.6			209.0	%		5.5			1.8			214.3	%
Total Revenue		15.8			12.0			31.3	%		34.7			26.8			29.6	%
EBITDA		5.9			4.2			41.2	%		13.2			10.6			24.0	%
EBITDA Margin		37.2	%		34.6	%		7.6	%		38.0	%		39.7	%		-4.3	%

For a reconciliation of segment Net Income to EBITDA, please see our report on Form 10-Q

Key Factors Affecting Operating Results

• Capacity revenue generally increased in-line with inflation

• Consumption ton-hours sold were higher primarily due to above average temperature in Chicago from June to September

• EBITDA was higher due to the incremental margin from additional consumption ton-hours sold

TOLL ROADS (YORKSHIRE LINK)

• The Company recorded a net $2.0 million as its share of the earnings of the Yorkshire Link

• Cash distributions for the full year 2005 are expected to be approximately $9.6 million including receipt of a one-time debt reserve release of $1.9 million. The Company has received cash distributions totalling $7.7 million year to date.

INVESTMENTS

Macquarie Communications Infrastructure Group (MCG)

• MCG declared a cash distribution of Australian Dollar 14.6 cents per stapled security on June 20, 2005 for the 6 month period ended June 30, 2005 — the Company received $1.9 million net of withholding taxes in mid-August

• Cash distributions for the full year 2005 are expected to be approximately $3.6 million net of withholding taxes

South East Water (SEW)

• As expected, the Company received no distributions from its investment in SEW during the third quarter of 2005

• For the full year 2005 the Company expects to receive dividends of approximately $8.5 million relating to its investment in SEW

• Included in the expected dividends is a non-recurring component of approximately $2.6 million

CONFERENCE CALL AND WEB CAST

The Company has scheduled a conference call for 11:00 a.m. Eastern Daylight Time on November 14, 2005, to review the Company’s results.

To listen to the conference call, please dial +1(800) 289-0572 (domestic) or +1(913) 981-5543 (international), at least 10 minutes prior to the scheduled start time. Interested parties can also listen to the live call, which will be webcast at the Company website, www.macquarie.com/mic. Please allow extra time prior to the call to visit the site and download the necessary software to listen to the Internet broadcast.

For interested individuals unable to join the conference call, a replay will be available through November 30, 2005, at +1(888) 203-1112 (domestic) or +1(719) 457-0820 (international), Passcode: 6394723. An online archive of the webcast will be available on the Company’s website for one year following the call.

ABOUT MACQUARIE INFRASTRUCTURE COMPANY

Macquarie Infrastructure Company owns, operates and invests in a diversified group of infrastructure businesses, which provide basic, everyday services, in the United States and other developed countries. Its businesses and investments consist of an airport services business (Atlantic and AvPorts), an airport parking business (PCAA and Avistar), a district energy business (Thermal Chicago and Northwind Aladdin), a 50% interest in the company that operates the Yorkshire Link shadow toll road and investments in South East Water, a UK regulated water utility and in Macquarie Communications Infrastructure Group.

FORWARD LOOKING STATEMENTS

This earnings release contains forward-looking statements. We may, in some cases, use words such as “project”, “believe”, “anticipate”, “plan”, “expect”, “estimate”, “intend”, “should”,

“would”, “could”, “potentially”, or “may” or other words that convey uncertainty of future events or outcomes to identify these forward-looking statements. Forward-looking statements in this presentation are subject to a number of risks and uncertainties, some of which are beyond our control including, among other things: our ability to successfully integrate and manage acquired businesses, make and finance future acquisitions, service, comply with the terms of and refinance our debt, and implement our strategy, decisions made by persons who control our investments including the distribution of dividends, our regulatory environment, changes in air travel, automobile usage, fuel and gas prices, foreign exchange fluctuations, environmental risks and changes in U.S. federal tax law.

Our actual results, performance, prospects or opportunities could differ materially from those expressed in or implied by the forward-looking statements. Additional risks of which we are not currently aware could also cause our actual results to differ. In light of these risks, uncertainties and assumptions, you should not place undue reliance on any forward-looking statements. The forward-looking events discussed in this release may not occur. These forward-looking statements are made as of the date of this release. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.

“Macquarie Group “ refers to the Macquarie Group of companies, which comprises Macquarie Bank Limited and its worldwide subsidiaries and affiliates.

FOR FURTHER INFORMATION, PLEASE CONTACT:

Investor enquiries	Media enquiries
Jay A. Davis	Alex Doughty
Investor Relations	Corporate Communications
Macquarie Infrastructure Company	Macquarie Infrastructure Company
(212) 231-1825	(212) 231-1710

MACQUARIE INFRASTRUCTURE COMPANY TRUST
CONSOLIDATED CONDENSED BALANCE SHEETS
As of September 30, 2005 and December 31, 2004
($ in thousands, except share amounts)

	September 30,			December 31,
	2005			2004
	(unaudited)
Assets
Current assets:
Cash and cash equivalents	$	43,497			140,050
Restricted cash		1,113			1,155
Accounts receivable, less allowance for doubtful accounts of $845 and $1,359		21,228			12,312
Dividend receivable		—			1,743
Inventories		2,104			1,563
Prepaid expenses		4,946			4,186
Deferred income taxes		1,622			1,452
Other		3,981			5,308
Total current assets		78,491			167,769
Property, equipment, land and leasehold improvements, net		311,296			284,744
Other assets:
Restricted cash		17,293			16,790
Equipment lease receivables		44,092			45,395
Investment in unconsolidated business		70,039			79,065
Investment, cost		36,338			39,369
Securities, available for sale		74,862			71,263
Related party subordinated loan		20,043			21,748
Goodwill		234,931			217,576
Intangible assets, net		310,509			254,530
Deposits and deferred costs on acquisition		15,429			—
Fair value of derivative instruments		4,923			724
Other		9,971			9,514
Total assets	$	1,228,217			1,208,487
Liabilities and stockholders’ equity
Current liabilities:
Due to manager	$	2,644			12,306
Accounts payable		13,203			10,912
Accrued expenses		13,603			11,980
Current portion of capital leases and notes payable		2,067			1,242
Current portion of long-term debt		97			94
Other		4,063			2,991
Total current liabilities		35,677			39,525
Capital leases and notes payable, net of current portion		2,104			1,755
Long-term debt, net of current portion		449,244			415,074
Related party long-term debt		18,533			19,278
Deferred income taxes		123,204			123,429
Fair value of derivative instruments		1,325			286
Other		5,616			4,329
Total liabilities		635,703			603,676
Minority interests		9,107			8,515
Stockholders’ equity:
Trust stock, no par value; 500,000,000 shares authorized; 27,050,745 shares issued and outstanding, at September 30, 2005, 26,610,100 shares issued and outstanding at December 31, 2004		596,548			613,265
Accumulated other comprehensive (loss) income		(2,412	)		619
Accumulated deficit		(10,729	)		(17,588	)
Total stockholders’ equity		583,407			596,296
Total liabilities and stockholders’ equity	$	1,228,217		$	1,208,487

MACQUARIE INFRASTRUCTURE COMPANY TRUST
CONSOLIDATED CONDENSED STATEMENT OF OPERATIONS
For the Quarter and Nine Months Ended September 30, 2005, the Quarter Ended September 30, 2004
And the Period from April 13, 2004 (inception) — September 30, 2004
(Unaudited)
($ in thousands, except per share amounts)

										Period From
							Nine Months			April 13, 2004
	Quarter Ended			Quarter Ended			Ended			(inception)
	September 30,			September 30,			September 30,			September 30,
	2005			2004			2005			2004
Revenue
Revenue from fuel sales	$	36,298		$	—		$	100,928		$	—
Service revenue		42,317			—			113,268			—
Financing and equipment lease income		1,320			—			3,993			—
		79,935			—			218,189			—
Costs and expenses
Cost of fuel sales		21,631			—			58,434			—
Cost of services		22,997			—			59,973			—
Selling, general and administrative expenses		21,243			2,023			59,147			4,604
Fees to manager		2,609			—			6,761			—
Depreciation		1,506			—			4,253			—
Amortization of intangibles		3,498			—			9,818			—
Operating income (loss)		6,451			(2,023	)		19,803			(4,604	)
Other income (expense)
Dividend income		116			—			6,300			—
Interest income		893			—			3,252			—
Interest expense		(8,034	)		—			(23,303	)		—
Equity in earnings and amortization charges of investee		1,954			—			2,468			—
Other income (expense), net		122			—			(533	)		—
Net income (loss) before income taxes and minority interests		1,502			(2,023	)		7,987			(4,604	)
Income tax expense		220			—			799			—
Net income (loss) before minority interests		1,282			(2,023	)		7,188			(4,604	)
Minority interests		(24	)		—			329			—
Net income (loss)	$	1,306		$	(2,023	)	$	6,859		$	(4,604	)
Basic earnings (loss) per share:	$	0.05		$	(20,230	)	$	0.26		$	(46,040	)
Weighted average number of shares of trust stock outstanding: basic		27,050,745			100			26,875,416			100
Diluted earnings (loss) per share:	$	0.05		$	(20,230	)	$	0.25		$	(46,040	)
Weighted average number of shares of trust stock outstanding: diluted		27,108,789			100			26,902,843			100
Cash dividends declared per share	$	0.50		$	—		$	1.0877		$	—

MACQUARIE INFRASTRUCTURE COMPANY TRUST
CONSOLIDATED CONDENSED STATEMENT OF CASH FLOWS
For the Nine Months Ended September 30, 2005
And the Period from April 13, 2004 (inception) — September 30, 2004
(Unaudited)
($ in thousands)

				Period From April
				13, 2004 (inception)
	Nine Months Ended			September 30,
	September 30, 2005			2004
Operating activities
Net income (loss)	$	6,859		$	(4,604	)
Adjustments to reconcile net income (loss) to net cash provided by operating activities:					—
Depreciation and amortization of property and equipment		10,123			—
Amortization of intangible assets		9,818			—
Loss on disposal of equipment		16
Equity in earnings and amortization charges of investee		2,970			—
Amortization of finance costs		851			—
Deferred rent		1,742			—
Deferred revenue		93			—
Equipment lease receivable		1,256			—
Minority interests		329			—
Noncash compensation		266			—
Other noncash expenses, net		108			—
Accrued interest expense on subordinated debt-related party		757			—
Accrued interest income on subordinated debt-related party		—			—
Changes in current assets and liabilities, net of acquisition:
Accounts receivable		(6,713	)		—
Inventories		(302	)		—
Prepaid expenses and other current assets		530			—
Accounts payable and accrued expenses		3,486			—
Due to manager		2,426			985
Due to Parent		—			3,619
Other		2,078			—
Net cash provided by operating activities		36,693			—
Investing activities
Acquisition of businesses and investments, net of cash acquired		(109,746	)		—
Deposits and deferred costs on future acquisitions		(15,429	)
Goodwill adjustment		694			—
Purchases of property and equipment		(7,502	)		—
Principal proceeds from subordinated loan		914			—
Net cash used in investing activities		(131,069	)		—
Financing activities
Proceeds from debt		32,000			—
Proceeds from line of credit facility		700			—
Contributions received from minority shareholders		1,553			—
Distributions paid to shareholders		(29,423	)		—
Debt financing costs		(1,674	)		—
Distributions paid to minority shareholders		(1,289	)		—
Payment of long-term debt		(81	)		—
Offering costs paid		(1,934	)		—
Change in restricted cash		(551	)		—
Payment of notes and capital lease obligations		(1,105	)		—
Net cash used in financing activities		(1,804	)
Effect of exchange rate changes on cash		(373	)		—
Net change in cash and cash equivalents		(96,553	)		—
Cash and cash equivalents at beginning of period		140,050			—
Cash and cash equivalents at end of period	$	43,497		$
Supplemental disclosures of cash flow information:
Income taxes paid	$	2,060		$	—
Interest paid	$	21,757		$	—
Acquisition of property and equipment under capital leases	$	1,699		$	—

MACQUARIE INFRASTRUCTURE COMPANY TRUST
RECONCILIATION OF NET INCOME (LOSS) TO EBITDA
For the Quarter and Nine Months Ended September 30, 2005, the Quarter ended September 30, 2004 and
the Period from April 13, 2004 (inception) — September 30, 2004
(Unaudited)
($ in thousands)

						Nine Months		April 13, 2004
	Quarter Ended		Quarter Ended			Ended		(inception)
	September 30,		September 30,			September 30,		September 30,
	2005		2004			2005		2004
Net income (loss)	$	1,306	$	(2,023	)	$	6,859	$	(4,604	)
Interest expense, net		7,141		—			20,051		—
Income taxes		220		—			799		—
Depreciation (1)		3,491		—			10,123		—
Amortization (2)		3,498		—			9,818		—
EBITDA	$	15,656	$	(2,023	)	$	47,650	$	(4,604	)

(1)	Includes depreciation expense of $2.0 million for the quarter ended September 30, 2005 and $5.9 million for the nine months ended September 30, 2005 for the airport parking business and the district energy business which is included in cost of services on our consolidated condensed statement of operations.
(2)	Does not include $1.2 million and $3.6 million of amortization expense related to intangible assets in connection with our acquisition of our toll road business for the quarter and the nine months ended September 30, 2005, respectively.