|
<PAGE>
EXHIBIT 10.1
--------------------------------------------------------------------------------
REVOLVING CREDIT AGREEMENT
dated as of June 29, 2004
among
AMB JAPAN FINANCE Y.K., as Initial Borrower,
AMB PROPERTY, L.P., as Guarantor,
AMB PROPERTY CORPORATION, as Guarantor,
THE BANKS LISTED HEREIN,
SUMITOMO MITSUI BANKING CORPORATION,
as Administrative Agent and Sole Lead Arranger and
Bookmanager
--------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ARTICLE I
DEFINITIONS....................................................................
1
SECTION 1.1.
Definitions..................................................................
1
SECTION 1.2. Accounting Terms and
Determinations.......................................... 31
SECTION 1.3. Types of
Borrowings..........................................................
32
ARTICLE II THE
CREDITS....................................................................
32
SECTION 2.1. Commitments to
Lend..........................................................
32
SECTION 2.2. Notice of
Borrowing..........................................................
32
SECTION 2.3. Intentionally
Deleted........................................................
34
SECTION 2.4. Intentionally
Deleted........................................................
34
SECTION 2.5. Notice to Banks; Funding of
Loans............................................ 34
SECTION 2.6.
Notes........................................................................
36
SECTION 2.7. Method of Electing Interest
Rates............................................ 37
SECTION 2.8. Interest
Rates...............................................................
39
SECTION 2.9.
Fees.........................................................................
39
SECTION 2.10.Maturity
Date................................................................
41
SECTION 2.11.Optional
Prepayments.........................................................
41
SECTION 2.12.Mandatory
Prepayments........................................................
42
SECTION 2.13.Secured
Option...............................................................
43
SECTION 2.14.General Provisions as to
Payments............................................ 45
SECTION 2.15.Funding
Losses...............................................................
46
SECTION 2.16.Computation of Interest and
Fees............................................. 46
SECTION 2.17.Use of
Proceeds..............................................................
46
SECTION 2.18.Letters of
Credit............................................................
46
SECTION 2.19.Letter of Credit Usage
Absolute.............................................. 50
SECTION 2.20.Addition of Qualified Borrowers; Release of
Qualified Borrowers.............. 51
ARTICLE III
CONDITIONS.....................................................................
52
SECTION 3.1.
Closing......................................................................
52
SECTION 3.2.
Borrowings...................................................................
54
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE IV REPRESENTATIONS AND
WARRANTIES................................................. 56
SECTION 4.1. Representations and Warranties by the
Guarantors............................. 56
SECTION 4.2. Representations and Warranties by the Initial
Borrower....................... 62
ARTICLE V AFFIRMATIVE AND NEGATIVE
COVENANTS............................................. 64
SECTION 5.1.
Information..................................................................
64
SECTION 5.2. Payment of
Obligations.......................................................
67
SECTION 5.3. Maintenance of Property; Insurance;
Leases................................... 67
SECTION 5.4. Maintenance of
Existence.....................................................
68
SECTION 5.5. Compliance with
Laws.........................................................
68
SECTION 5.6. Inspection of Property, Books and
Records.................................... 68
SECTION 5.7.
Existence....................................................................
68
SECTION 5.8. Financial
Covenants..........................................................
69
SECTION 5.9. Restriction on Fundamental
Changes........................................... 71
SECTION 5.10.Changes in
Business..........................................................
72
SECTION 5.11.AMB Corporation
Status.......................................................
72
SECTION 5.12.Other
Indebtedness...........................................................
74
SECTION 5.13.Forward Equity
Contracts.....................................................
74
SECTION 5.14.Capital Funding
Loans........................................................
74
ARTICLE VI
DEFAULTS.......................................................................
76
SECTION 6.1. Borrower Events of
Default................................................... 76
SECTION 6.2. Rights and Remedies with Respect to Borrower Event
of Default................ 78
SECTION 6.3. Guarantors Event of
Default.................................................. 79
SECTION 6.4. Rights and
Remedies..........................................................
82
SECTION 6.5. Enforcement of Rights and
Remedies........................................... 83
SECTION 6.6. Notice of
Default............................................................
83
SECTION 6.7. Actions in Respect of Letters of
Credit...................................... 84
SECTION 6.8. Distribution of Proceeds after
Default....................................... 86
ARTICLE VII THE ADMINISTRATIVE
AGENT....................................................... 87
SECTION 7.1. Appointment and
Authorization................................................
87
SECTION 7.2. Agency and
Affiliates........................................................
87
SECTION 7.3. Action by Administrative
Agent............................................... 87
SECTION 7.4. Consultation with
Experts.................................................... 87
SECTION 7.5. Liability of Administrative
Agent............................................ 87
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
SECTION 7.6.
Indemnification..............................................................
88
SECTION 7.7. Credit
Decision..............................................................
88
SECTION 7.8. Successor
Agent..............................................................
89
SECTION 7.9. Consents and
Approvals.......................................................
89
SECTION 7.10.Cooperation with Asset Liquidation Plan
Amendments........................... 90
ARTICLE VIII CHANGE IN
CIRCUMSTANCES........................................................
91
SECTION 8.1. Basis for Determining Interest Rate Inadequate or
Unfair..................... 91
SECTION 8.2.
Illegality...................................................................
91
SECTION 8.3. Increased Cost and Reduced
Return............................................ 92
SECTION 8.4.
Taxes........................................................................
94
SECTION 8.5. Base Rate Loans Substituted for Affected TIBOR
Loans......................... 97
ARTICLE IX
MISCELLANEOUS..................................................................
97
SECTION 9.1.
Notices......................................................................
97
SECTION 9.2. No
Waivers...................................................................
98
SECTION 9.3. Expenses;
Indemnification....................................................
98
SECTION 9.4. Sharing of
Set-Offs..........................................................
99
SECTION 9.5. Amendments and
Waivers.......................................................
100
SECTION 9.6. Successors and
Assigns.......................................................
102
SECTION 9.7.
Collateral...................................................................
104
SECTION 9.8. Governing Law; Submission to Jurisdiction; Judgment
Currency................. 104
SECTION 9.9. Counterparts; Integration;
Effectiveness..................................... 105
SECTION 9.10.WAIVER OF JURY
TRIAL.........................................................
105
SECTION
9.11.Survival.....................................................................
105
SECTION 9.12.Intentionally
Deleted........................................................
106
SECTION 9.13.Limitation of
Liability......................................................
106
SECTION 9.14.Recourse
Obligation..........................................................
106
SECTION
9.15.Confidentiality..............................................................
106
SECTION 9.16.Bank's Failure to
Fund....................................................... 107
SECTION 9.17.Banks' ERISA
Covenant........................................................
112
SECTION 9.18.Bank Ceasing to be a Qualified Institutional
Investor........................ 113
SECTION 9.19.Intentionally
Deleted........................................................
114
SECTION 9.20.Intentionally
Deleted........................................................
114
SECTION 9.21.USA PATRIOT
ACT..............................................................
114
SECTION 9.22. OFAC
LIST...................................................................
114
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
SCHEDULE 1.1(a) Initial Qualified Borrowers
SCHEDULE 1.1(b) Initial Qualifying Unencumbered Properties
SCHEDULE 2.2(a) Project Information
SCHEDULE 4.1(f) Guarantor CBA and ERISA Plans
SCHEDULE 4.4 (b) Disclosure of Additional Material
Indebtedness
SCHEDULE 5.11(c)(1) AMB Corporation Investments
SCHEDULE 5.11(c)(2) AMB Corporation Properties
EXHIBIT A-1 Form of Note
EXHIBIT A-2 Form of Qualified Borrower Undertaking
EXHIBIT B Qualified Borrower Joinder Agreement
EXHIBIT C Form of Mortgage
EXHIBIT D Form of TBI Pledge
EXHIBIT E Form of Share Pledge
EXHIBIT F Form of Consent
EXHIBIT G Notices
EXHIBIT H Form of Transfer Supplement
EXHIBIT I-1 Organizational and Structural Chart for AMB Japan
Finance Y.K.
EXHIBIT I-2 Organizational and Structure Chart for AMB Narita 1
Y.K.
</TABLE>
iv
<PAGE>
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT (this "Agreement") dated as of June
29, 2004
among AMB JAPAN FINANCE Y.K., as Initial Borrower (the "Initial
Borrower"), AMB
PROPERTY, L.P., as Guarantor ("AMB LP"), AMB PROPERTY
CORPORATION, as Guarantor
("AMB Corporation"), the BANKS listed on the signature pages
hereof, SUMITOMO
MITSUI BANKING CORPORATION, as Administrative Agent and Sole
Lead Arranger and
Bookmanager.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein,
have
the following meanings:
"Adjusted EBITDA" means EBITDA for such period minus an amount
equal
to appropriate reserves for replacements of Ten Cents U.S.
(US$0.10) (or in the
case of any Real Property Asset owned by an Investment Affiliate
or by a
Consolidated Subsidiary, Guarantors' Share of Ten Cents U.S.
(US$0.10)) per
square foot per annum for each Real Property Asset (provided
that, as to any
Real Property Asset acquired during such period such Ten Cents
U.S. (US$0.10)
per square foot adjustment shall be pro-rated for the period of
ownership).
"Administrative Agent" shall mean Sumitomo Mitsui Banking
Corporation in its respective capacity as Administrative Agent
hereunder, and
its respective permitted successors in such capacity in
accordance with the
terms of this Agreement.
"Administrative Fee" shall have the meaning set forth in
Section
2.9(c).
"Administrative Questionnaire" means with respect to each Bank,
an
administrative questionnaire in the form prepared by the
Administrative Agent
and submitted to the Administrative Agent (with a copy to each
Borrower) duly
completed by such Bank.
"Affiliate", as applied to any Person, means any other Person
that
directly or indirectly controls, is controlled by, or is under
common control
with, that Person. For purposes of this definition, "control"
(including, with
correlative meanings, the
<PAGE>
terms "controlling", "controlled by" and "under common control
with"), as
applied to any Person, means the possession, directly or
indirectly, of the
power to vote ten percent (10.0%) or more of the equity
Securities having voting
power for the election of directors of such Person or otherwise
to direct or
cause the direction of the management and policies of that
Person, whether
through the ownership of voting equity Securities or by contract
or otherwise.
"Agreement" shall mean this Revolving Credit Agreement as the
same
may from time to time hereafter be modified, supplemented or
amended.
"AMB Corporation" shall mean AMB Property Corporation, a
Maryland
corporation, a real estate investment trust, which is the
general partner of AMB
LP and a Guarantor.
"AMB LP" shall mean AMB Property, L.P., a Delaware limited
partnership and a Guarantor.
"Annual Fronting Bank Fee" shall have the meaning set forth
in
Section 2.9(c).
"Applicable Fee Percentage" means the respective percentages
per
annum determined, at any time, based on the range into which AMB
LP's Credit
Rating then falls, in accordance with the table set forth below.
Any change in
AMB LP's Credit Rating causing it to move to a different range
on the table
shall effect an immediate change in the Applicable Fee
Percentage. AMB LP shall
have not less than two (2) Credit Ratings at all times. In the
event that AMB LP
receives only two (2) Credit Ratings (one of which must be from
S&P or Moody's),
and such Credit Ratings are not equivalent, the Applicable Fee
Percentage shall
be determined by the lower of such two (2) Credit Ratings. In
the event that AMB
LP receives more than two (2) Credit Ratings, and such Credit
Ratings are not
all equivalent, the Applicable Fee Percentage shall be
determined by the second
highest Credit Rating, provided that one of the highest two (2)
Credit Ratings
shall be from S&P or Moody's; provided, further, that if
neither of the highest
two (2) Credit Ratings is from S&P or Moody's, then the
Applicable Fee
Percentage shall be determined by the highest Credit Rating from
either S&P or
Moody's.
2
<PAGE>
<TABLE>
<CAPTION>
Range of
AMB LP's
Credit Rating Applicable
(S&P/Moody's Fee Percentage
Ratings) (% per annum)
--------------- -------------
<S> <C>
Non-Investment Grade 0.35
BBB-/Baa3 0.25
BBB/Baa2 0.20
BBB+/Baa1 0.20
A-/A3 or better 0.15
</TABLE>
"Applicable Interest Rate" means (i) with respect to any Fixed
Rate
Indebtedness, the fixed interest rate applicable to such Fixed
Rate Indebtedness
at the time in question, and (ii) with respect to any Floating
Rate
Indebtedness, either (x) the rate at which the interest rate
applicable to such
Floating Rate Indebtedness is actually capped (or fixed pursuant
to an interest
rate hedging device), at the time of calculation, if either
Guarantor has
entered into an interest rate cap agreement or other interest
rate hedging
device with respect thereto or (y) if no Guarantor has entered
into an interest
rate cap agreement or other interest rate hedging device with
respect to such
Floating Rate Indebtedness, the greater of (A) the rate at which
the interest
rate applicable to such Floating Rate Indebtedness could be
fixed for the
remaining term of such Floating Rate Indebtedness, at the time
of calculation,
by a Guarantor entering into any unsecured interest rate hedging
device either
not requiring an upfront payment or if requiring an upfront
payment, such
upfront payment shall be amortized over the term of such device
and included in
the calculation of the interest rate (or, if such rate is
incapable of being
fixed by entering into an unsecured interest rate hedging device
at the time of
calculation, a fixed rate equivalent reasonably determined by
Administrative
Agent) or (B) the floating rate applicable to such Floating Rate
Indebtedness at
the time in question.
"Applicable Margin" means with respect to each Loan, the
respective
percentages per annum determined, at any time, based on the
range into which AMB
LP's Credit Rating then falls, in accordance with the table set
forth below. Any
change in AMB LP's Credit Rating causing it to move to a
different range on the
table shall effect an immediate change in the Applicable Margin.
AMB LP shall
have not less than
3
<PAGE>
two (2) Credit Ratings at all times. In the event that AMB LP
receives only two
(2) Credit Ratings (one of which must be from S&P or
Moody's), and such Credit
Ratings are not equivalent, the Applicable Margin shall be
determined by the
lower of such two (2) Credit Ratings. In the event that AMB LP
receives more
than two (2) Credit Ratings, and such Credit Ratings are not all
equivalent, the
Applicable Margin shall be determined by the second highest
Credit Rating,
provided that one of the highest two (2) Credit Ratings shall be
from S&P or
Moody's; provided, further, that if neither of the highest two
(2) Credit
Ratings is from S&P or Moody's, then the Applicable Margin
shall be determined
by the highest Credit Rating from either S&P or Moody's.
<TABLE>
<CAPTION>
Range of Applicable Applicable
AMB LP's Margin for Margin for
Credit Rating Base Rate TIBOR Loans
Ratings) (% per annum) (% per annum)
--------------------- ------------- ---------------
<S> <C> <C>
Non-Investment Grade 0.00 1.15
BBB-/Baa3 0.00 0.85
BBB/Baa2 0.00 0.70
BBB+/Baa1 0.00 0.60
A-/A3 or better 0.00 0.60
</TABLE>
"Asset Liquidation Plan" means a plan that has been duly filed
with
the Director General of the Kanto Local Finance Bureau pursuant
to Article 3 of
TMK Law, as amended.
"Assignee" has the meaning set forth in Section 9.6(c).
"Balance Sheet Indebtedness" means with respect to any Person
and
assuming such Person is required to prepare financial statements
in accordance
with GAAP, without duplication, the Indebtedness of such Person
which would be
required to be included on the liabilities side of the balance
sheet of such
Person in accordance with GAAP excluding, in the case of the
Guarantors, the
Balance Sheet Indebtedness of any Consolidated Subsidiary.
Notwithstanding the
foregoing, Balance Sheet Indebtedness shall include current
liabilities and all
guarantees of Indebtedness of any Person.
4
<PAGE>
"Balloon Payments" shall mean with respect to any loan
constituting
Balance Sheet Indebtedness, any required principal payment of
such loan which is
either (i) payable at the maturity of such Indebtedness or (ii)
in an amount
which exceeds fifteen percent (15%) of the original principal
amount of such
loan; provided, however, that the final payment of a fully
amortizing loan shall
not constitute a Balloon Payment.
"Bank" means each entity (other than a Credit Party) listed on
the
signature pages hereof, each Assignee which becomes a Bank
pursuant to Section
9.6(c), and their respective successors.
"Bankruptcy Code" shall mean Title 11 of the United States
Code,
entitled "Bankruptcy", as amended from time to time, and any
successor statute
or statutes.
"Bankruptcy Law" means any governmental rules of any
jurisdiction
relating to bankruptcy, insolvency, corporate reorganization,
company
arrangement, civil rehabilitation, special liquidation,
moratorium, readjustment
of debt, appointment of a conservator (hozen kanrinin), trustee
(kanzai nin),
supervisor (kantoku i'in), inspector (chosa i'in) or receiver,
or similar debtor
relief effecting, including, without limitation, hasan, minji
saisei, kaisha
seiri, kaisha kosei, tokubetsu seisan and tokutei chotei.
"Base Rate" means, for any day, a rate per annum equal to the
Prime
Rate for such day. Each change in the Base Rate shall become
effective
automatically as of the opening of business on the date of such
change in the
Base Rate, without prior written notice to Borrower or
Banks.
"Base Rate Loan" means a Committed Loan to be made by a Bank as
a
Base Rate Loan in accordance with the provisions of this
Agreement.
"Benefit Arrangement" means at any time an employee benefit
plan
within the meaning of Section 3(3) of ERISA which is not a Plan
or a
Multiemployer Plan and which is maintained or otherwise
contributed to by any
member of the ERISA Group.
"Borrower" means, collectively, Initial Borrower and any
Qualified
Borrower for so long as such entity is a Qualified Borrower
hereunder.
"Borrower Default" means any condition or event which with
the
giving of notice or lapse of time or both would, unless cured or
waived, become
a Borrower Event of Default.
5
<PAGE>
"Borrower Event of Default" shall have the meaning set forth
in
Section 6.1.
"Borrowing" has the meaning set forth in Section 1.3.
"Business Day" means any day except a Saturday, Sunday or other
day
on which commercial banks in New York City or Tokyo, Japan are
authorized by law
to close.
"Capital Leases" as applied to any Person, means any lease of
any
property (whether real, personal or mixed) by that Person as
lessee which, in
conformity with GAAP, is or should be accounted for as a capital
lease on the
balance sheet of that Person.
"Capital Funding Loan" shall have the meaning set forth in
Section
5.14 hereof.
"Cash or Cash Equivalents" shall mean (a) cash; (b)
marketable
direct obligations issued or unconditionally guaranteed by the
United States
Government or issued by an agency thereof and backed by the full
faith and
credit of the United States, in each case maturing within one
(1) year after the
date of acquisition thereof; (c) marketable direct obligations
issued by any
state of the United States of America or any political
subdivision of any such
state or any public instrumentality thereof maturing within
ninety (90) days
after the date of acquisition thereof and, at the time of
acquisition, having
one of the two highest ratings obtainable from any two of S
& P, Moody's or
Fitch (or, if at any time no two of the foregoing shall be
rating such
obligations, then from such other nationally recognized rating
services
acceptable to Administrative Agent ); (d) domestic corporate
bonds, other than
domestic corporate bonds issued by a Guarantor or any of its
Affiliates,
maturing no more than two (2) years after the date of
acquisition thereof and,
at the time of acquisition, having a rating of at least A or the
equivalent from
any two (2) of S & P, Moody's or Fitch (or, if at any time
no two of the
foregoing shall be rating such obligations, then from such other
nationally
recognized rating services acceptable to Administrative Agent);
(e)
variable-rate domestic corporate notes or medium term corporate
notes, other
than notes issued by a Guarantor or any of its Affiliates,
maturing or resetting
no more than one (1) year after the date of acquisition thereof
and having a
rating of at least AA or the equivalent from two of S & P,
Moody's or Fitch (or,
if at any time no two of the foregoing shall be rating such
obligations, then
from such other nationally recognized rating services acceptable
to
Administrative Agent); (f) commercial paper (foreign and
domestic) or master
notes, other than commercial paper or master notes issued by a
Guarantor or any
of its Affiliates, and, at the time of acquisition, having a
long-term rating of
at least A or the equivalent from S & P, Moody's or Fitch
and having a
short-term rating of at least A-1
6
<PAGE>
and P-1 from S & P and Moody's, respectively (or, if at any
time neither S & P
nor Moody's shall be rating such obligations, then the highest
rating from such
other nationally recognized rating services acceptable to
Administrative Agent);
(g) domestic and foreign certificates of deposit or domestic
time deposits or
foreign deposits or bankers' acceptances (foreign or domestic)
in Dollars, Hong
Kong Dollars, Singapore Dollars, Pounds Sterling, Euros or Yen
that are issued
by a bank (I) which has, at the time of acquisition, a long-term
rating of at
least A or the equivalent from S & P, Moody's or Fitch and
(II) if a domestic
bank, which is a member of the Federal Deposit Insurance
Corporation; (h)
overnight securities repurchase agreements, or reverse
repurchase agreements
secured by any of the foregoing types of securities or debt
instruments,
provided that the collateral supporting such repurchase
agreements shall have a
value not less than 101% of the principal amount of the
repurchase agreement
plus accrued interest; and (i) money market funds invested in
investments
substantially all of which consist of the items described in
clauses (a) through
(h) foregoing.
"Closing Date" means the date on or after the Effective Date
on
which the conditions set forth in Section 3.1 shall have been
satisfied to the
satisfaction of the Administrative Agent.
"Code" means the Internal Revenue Code of 1986, as amended, and
as
it may be further amended from time to time, any successor
statutes thereto, and
applicable U.S. Department of Treasury regulations issued
pursuant thereto in
temporary or final form.
"Collateral" shall have the meaning set forth in Section
2.13(a).
"Committed Borrowing" shall have the meaning set forth in
Section
1.3.
"Committed Loan" means a loan made by a Bank pursuant to
Section
2.1, as well as loans required to be made by a Bank pursuant to
Section 2.18 to
reimburse a Fronting Bank for a Letter of Credit that has been
drawn down;
provided that, if any such loan or loans (or portions thereof)
are combined or
subdivided pursuant to a Notice of Interest Rate Election, the
term "Committed
Loan" shall refer to the combined principal amount resulting
from such
combination or to each of the separate principal amounts
resulting from such
subdivision, as the case may be.
"Commitment" means, with respect to each Bank, the amount set
forth
under the name of such Bank on the signature pages hereof as its
commitment
pursuant to this Agreement with respect to any Loans (and, for
each Bank which
is an Assignee, the amount set forth in the Transfer Supplement
entered into
pursuant to Section 9.6(c) as the Assignee's Commitment), as
such amount may be
reduced from time to time pursuant to Section 2.11 or in
connection with an
assignment to an Assignee and
7
<PAGE>
increased in connection with an assignment from an Assignor. As
of the Closing
Date, the aggregate Commitment is Twenty-Four Billion Yen
(JPY24,000,000,000).
"Consents" has the meaning set forth in Section 7.10.
"Consolidated Subsidiary" means at any date any Subsidiary or
other
entity which is consolidated with a Guarantor in accordance with
GAAP.
"Consolidated Subsidiary EBITDA" means, for any period (i)
Income
from Operations of a Consolidated Subsidiary for such period,
plus (ii)
depreciation and amortization expense and other non-cash items
deducted in the
calculation of Income from Operations of such Consolidated
Subsidiary for such
period, plus (iii) Interest Expense deducted in the calculation
of Income from
Operations of such Consolidated Subsidiary for such period, all
of the foregoing
without duplication.
"Consolidated Tangible Net Worth" means, at any time, the
tangible
net worth of AMB LP, on a consolidated basis, determined in
accordance with
GAAP, plus preferred units issued by Consolidated Subsidiaries,
plus all
accumulated depreciation and amortization of AMB LP plus
Guarantors' Share of
accumulated depreciation and amortization of Investment
Affiliates, deducted, in
either case, from earnings in calculating Net Income.
"Construction Asset" has the meaning set forth in the definition
of
the term "Construction Asset Cost".
"Construction Asset Cost" shall mean, with respect to a Real
Property Asset (or, in the case of any Real Property Asset to be
developed in
phases, any phase thereof) in which Development Activity has
begun (as evidenced
by obtaining a permit to commence construction of the applicable
industrial or
retail improvements by the applicable governmental authority)
but has not yet
been substantially completed (substantial completion shall be
deemed to mean not
less than 90% completion, as such completion shall be evidenced
by a certificate
of occupancy or its equivalent and the commencement of the
payment of rent by
tenants of such Real Property Asset or phase) (a "Construction
Asset"), (i) in
the case of the development and construction by AMB LP described
in clause (a)
of the definition of Development Activity, the aggregate, good
faith estimate of
the total cost to be incurred by AMB LP in the construction of
such improvements
(including land acquisition costs); (ii) in the case of the
development and
construction by a Joint Venture Subsidiary or a Consolidated
Subsidiary of AMB
LP) described in clause (a) of the definition of Development
Activity, an amount
equal to Guarantor's Share of the aggregate, good faith estimate
of the total
cost to be incurred by such Joint Venture Subsidiary or
Consolidated Subsidiary,
as applicable, in the construction of such improvements
(including land
acquisition costs); (iii) in the case of the financing of any
development and
construction by AMB LP, the amount AMB LP has committed to fund
to pay the cost
to complete such development and construction, (iv) in the case
of the financing
of any development and construction by a Joint
8
<PAGE>
Venture Subsidiary or a Consolidated Subsidiary of AMB LP, an
amount equal to
Guarantors' Share of the amount such Joint Venture Subsidiary or
such
Consolidated Subsidiary, as applicable, has committed to fund to
pay the cost to
complete such development and construction; (v) in the case of
the incurrence of
any Contingent Obligations in connection with any development
and construction
by AMB LP, the amount of such Contingent Obligation of AMB LP,
(vi) in the case
of the incurrence of any Contingent Obligations in connection
with any
development and construction by a Joint Venture Subsidiary or a
Consolidated
Subsidiary of AMB LP, an amount equal to Guarantors' Share of
the amount of such
Contingent Obligation of such Joint Venture Subsidiary or such
Consolidated
Subsidiary, as applicable.
"Contingent Obligation" as to any Person means, without
duplication,
(i) any contingent obligation of such Person required to be
shown on such
Person's balance sheet in accordance with GAAP, and (ii) any
obligation required
to be disclosed in the footnotes to such Person's financial
statements,
guaranteeing partially or in whole any Non-Recourse
Indebtedness, lease,
dividend or other obligation, exclusive of contractual
indemnities (including,
without limitation, any indemnity or price-adjustment provision
relating to the
purchase or sale of securities or other assets) and guarantees
of non-monetary
obligations (other than guarantees of completion) which have not
yet been called
on or quantified, of such Person or of any other Person. The
amount of any
Contingent Obligation described in clause (ii) shall be deemed
to be (a) with
respect to a guaranty of interest or interest and principal, or
operating income
guaranty, the Net Present Value of the sum of all payments
required to be made
thereunder (which in the case of an operating income guaranty
shall be deemed to
be equal to the debt service for the note secured thereby),
calculated at the
Applicable Interest Rate, through (i) in the case of an interest
or interest and
principal guaranty, the stated date of maturity of the
obligation (and
commencing on the date interest could first be payable
thereunder), or (ii) in
the case of an operating income guaranty, the date through which
such guaranty
will remain in effect, and (b) with respect to all guarantees
not covered by the
preceding clause (a), an amount equal to the stated or
determinable amount of
the primary obligation in respect of which such guaranty is made
or, if not
stated or determinable, the maximum reasonably anticipated
liability in respect
thereof (assuming such Person is required to perform thereunder)
as recorded on
the balance sheet and on the footnotes to the most recent
financial statements
of AMB LP required to be delivered pursuant to Section 5.1
hereof.
Notwithstanding anything contained herein to the contrary,
guarantees of
completion shall not be deemed to be Contingent Obligations
unless and until a
claim for payment or performance has been made thereunder, at
which time any
such guaranty of completion shall be deemed to be a Contingent
Obligation in an
amount equal to any such claim. Subject to the preceding
sentence, (i) in the
case of a joint and several guaranty given by such Person and
another Person
(but only to the extent such guaranty is recourse, directly or
indirectly to AMB
LP), the amount of the guaranty shall be deemed to be 100%
thereof unless and
only to the extent that such other Person has delivered Cash or
Cash Equivalents
to secure all or any part of such Person's guaranteed
obligations, (ii) in the
case of joint and several guarantees given by a Person in whom
AMB LP owns an
interest (which guarantees are non-recourse to
9
<PAGE>
AMB LP), to the extent the guarantees, in the aggregate, exceed
15% of Total
Asset Value, the amount which is the lesser of (x) the amount in
excess of 15%
or (y) the amount of AMB LP's interest therein shall be deemed
to be a
Contingent Obligation of AMB LP, and (iii) in the case of a
guaranty (whether or
not joint and several) of an obligation otherwise constituting
Indebtedness of
such Person, the amount of such guaranty shall be deemed to be
only that amount
in excess of the amount of the obligation constituting
Indebtedness of such
Person. Notwithstanding anything contained herein to the
contrary, "Contingent
Obligations" shall be deemed not to include guarantees of Unused
Commitments or
of construction loans to the extent the same have not been
drawn. All matters
constituting "Contingent Obligations" shall be calculated
without duplication.
"Convertible Securities" means evidences of shares of stock,
limited
or general partnership interests or other ownership interests,
warrants,
options, or other rights or securities which are convertible
into or
exchangeable for, with or without payment of additional
consideration, common
shares of beneficial interest of AMB Corporation or partnership
interests of AMB
LP, as the case may be, either immediately or upon the arrival
of a specified
date or the happening of a specified event.
"Covenant Modification" shall have the meaning set forth in
Section
9.5(b).
"Credit Party" shall mean any of Borrower or a Guarantor and
"Credit
Parties" shall mean Borrower and Guarantors, collectively.
"Credit Rating" means the rating assigned by the Rating Agencies
to
AMB LP's senior unsecured long term indebtedness.
"Debt Restructuring" means a restatement of, or material change
in,
the amortization or other financial terms of any Indebtedness of
any Guarantor
or any Subsidiary or Investment Affiliate.
"Debt Service" means, for any period and without
duplication,
Interest Expense for such period plus scheduled principal
amortization
(excluding Balloon Payments) for such period on all Balance
Sheet Indebtedness
of Guarantors plus Guarantors' Share of scheduled principal
amortization
(excluding Balloon Payments) for such period on all Balance
Sheet Indebtedness
of Investment Affiliates and Consolidated Subsidiaries.
"Default" means any Guarantor Default or Borrower Default.
"Default Rate" has the meaning set forth in Section 2.8(c).
"Development Activity" means (a) the development and
construction of
industrial or retail facilities by AMB LP or any of its
Consolidated
Subsidiaries or Joint
10
<PAGE>
Venture Subsidiaries excluding Unimproved Assets, (b) the
financing by AMB LP or
any of its Consolidated Subsidiaries or Joint Venture
Subsidiaries of any such
development or construction and (c) the incurrence by AMB LP or
any of its
Consolidated Subsidiaries or Joint Venture Subsidiaries of any
Contingent
Obligations in connection with such development or construction
(other than
purchase contracts for Real Property Assets which are not
payable until after
completion of development or construction).
"Dollars" and "US$" means the lawful money of the United
States.
"EBITDA" means, for any period (i) Guarantors' Income from
Operations for such period, plus (ii) Guarantors' depreciation
and amortization
expense and other non-cash items deducted in the calculation of
Income from
Operations for such period, plus (iii) Guarantors' Interest
Expense deducted in
the calculation of Income from Operations for such period, plus
(iv) Guarantors'
Share of the Investment Affiliate EBITDA for each Investment
Affiliate, plus (v)
Guarantors' Share of the Consolidated Subsidiary EBITDA for each
Consolidated
Subsidiary, all of the foregoing without duplication.
"Effective Date" means the date this Agreement becomes effective
in
accordance with Section 9.9.
"Environmental Affiliate" means any partnership, joint
venture,
trust or corporation in which an equity interest is owned
directly or indirectly
by a Credit Party and, as a result of the ownership of such
equity interest, AMB
LP may have recourse liability for Environmental Claims against
such
partnership, joint venture, trust or corporation (or the
property thereof).
"Environmental Claim" means, with respect to any Person, any
notice,
claim, demand or similar communication (written or oral) by any
other Person
alleging potential liability of such Person for investigatory
costs, cleanup
costs, governmental response costs, natural resources damage,
property damages,
personal injuries, fines or penalties arising out of, based on
or resulting from
(i) the presence, or release into the environment, of any
Materials of
Environmental Concern at any location, whether or not owned by
such Person or
(ii) circumstances forming the basis of any violation, or
alleged violation, of
any Environmental Law, in each case (with respect to both (i)
and (ii) above) as
to which there is a reasonable possibility of an adverse
determination with
respect thereto and which, if adversely determined, would have a
Material
Adverse Effect on AMB LP.
"Environmental Laws" means any and all federal, state, and
local
statutes, laws, judicial decisions, regulations, ordinances,
rules, judgments,
orders, decrees, plans, injunctions, permits, concessions,
grants, licenses,
agreements and other governmental restrictions relating to the
environment, the
effect of the environment on human health or to emissions,
discharges or
releases of Materials of Environmental Concern into the
11
<PAGE>
environment including, without limitation, ambient air, surface
water, ground
water, or land, or otherwise relating to the manufacture,
processing,
distribution, use, treatment, storage, disposal, transport or
handling of
Materials of Environmental Concern or the clean up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974,
as amended, or any successor statute.
"ERISA Group" means the Guarantors, any Subsidiary and all
members
of a controlled group of corporations and all trades or
businesses (whether or
not incorporated) under common control and all members of an
"affiliated service
group" which, together with the Guarantors or any Subsidiary,
are treated as a
single employer under Section 414 of the Code or Section
4001(b)(1) of ERISA.
"Event of Default" shall mean a Borrower Event of Default or
a
Guarantor Event of Default.
"Existing Credit Agreement" shall mean the Second Amended
and
Restated Revolving Credit Agreement dated as of June 1, 2004
among AMB LP, as
borrower, the Banks listed on the signature pages thereof, and
JPMorgan Chase
Bank, as Administrative Agent.
"Existing Credit Agreement Agent" means JPMorgan Chase Bank,
the
administrative agent under the Existing Credit Agreement, its
successors and
assigns.
"Existing Credit Agreement Proposal" shall have the meaning
set
forth in Section 9.5(b).
"Extension Date" has the meaning set forth in Section
2.10(b).
"Extension Fee" has the meaning set forth in Section 2.9(d).
"Extension Notice" has the meaning set forth in Section
2.10(b).
"Facility Amount" has the meaning set forth in Section 2.1.
"Federal Reserve Board" means the Board of Governors of the
Federal
Reserve System as constituted from time to time.
"FFO" means "funds from operations," defined to mean,
without
duplication for any period, Income from Operations, plus (i)
Guarantors' Share
of Income from Operations of any Investment Affiliate (plus
Guarantors' Share of
real estate depreciation and amortization expenses of Investment
Affiliates),
plus (ii) real estate depreciation and amortization expense for
such period.
12
<PAGE>
"Financing Partnerships" means any Subsidiary which is
wholly-owned,
directly or indirectly, by AMB LP or jointly by the Guarantors
provided that AMB
Corporation holds, directly or indirectly other than through its
interest in AMB
LP, no more than a 2% economic interest in such Subsidiary.
"First Tier JV" has the meaning set forth in Section 5.14.
"Fiscal Quarter" means a fiscal quarter of a Fiscal Year.
"Fiscal Year" means the fiscal year of Guarantors.
"Fitch" means Fitch, Inc., or any successor thereto.
"Fixed Charges" for any Fiscal Quarter period means the sum of
(i)
Debt Service for such period, (ii) dividends on preferred units
payable by AMB
LP for such period, and (iii) distributions made by AMB LP in
such period to AMB
Corporation for the purpose of paying dividends on preferred
shares in AMB
Corporation. If any of the foregoing Indebtedness is subject to
an interest rate
cap agreement purchased by a Guarantor or a Consolidated
Subsidiary, the
interest rate shall be assumed to be the lower of the actual
interest payable on
such Indebtedness or the capped rate of such interest rate cap
agreement. In no
event shall any dividends payable on AMB Corporation's or any
Consolidated
Subsidiary's common stock be included in Fixed Charges.
"Fixed Rate Indebtedness" means all Indebtedness which
accrues
interest at a fixed rate.
"Floating Rate Indebtedness" means all Indebtedness which is
not
Fixed Rate Indebtedness and which is not a Contingent Obligation
or an Unused
Commitment.
"FMV Cap Rate" means eight and one half percent (8 1/2%).
"Foreign Property Interests" shall have the meaning set forth
in
Section 5.8(i) hereof.
"Fronting Bank" shall mean Sumitomo Mitsui Banking Corporation,
its
successors and assigns.
"GAAP" means generally accepted accounting principles recognized
as
such in the opinions and pronouncements of the Accounting
Principles Board and
the American Institute of Certified Public Accountants and the
Financial
Accounting Standards Board or in such other statements by such
other entity as
may be approved by a significant segment of the accounting
profession, which are
applicable to the circumstances as of the date of
determination.
13
<PAGE>
"Group of Loans" means, at any time, a group of Loans consisting
of
(i) all Committed Loans which are Base Rate Loans at such time,
or (ii) all
Committed Loans which are TIBOR Loans having the same Interest
Period at such
time; provided that, if a Committed Loan of any particular Bank
is converted to
or made as a Base Rate Loan pursuant to Section 8.2 or 8.5, such
Committed Loan
shall be included in the same Group or Groups of Loans from time
to time as it
would have been in if it had not been so converted or made.
"Guarantor Default" means any condition or event which with
the
giving of notice or lapse of time or both would, unless cured or
waived, become
a Guarantor Event of Default.
"Guarantor Event of Default" shall have the meaning set forth
in
Section 6.3.
"Guarantors" means, collectively, AMB LP and AMB
Corporation,
jointly and severally, and "Guarantor" means individually either
AMB LP or AMB
Corporation
"Guarantors' Share" means AMB LP's and AMB Corporation's direct
or
indirect share of a Consolidated Subsidiary, a Joint Venture
Subsidiary or an
Investment Affiliate based upon Guarantors' percentage ownership
(whether direct
or indirect) of such Consolidated Subsidiary, Joint Venture
Subsidiary or
Investment Affiliate.
"Guaranty" means that certain Guaranty Agreement, dated as of
the
date hereof, by Guarantors, jointly and severally, as
guarantors, to
Administrative Agent, for the benefit of the Banks, for the
payment of any
Borrower's debt or obligation to the Banks.
"Income from Operations" means, for any period, Net Income
before
the deduction of (i) Taxes, (ii) minority interests, (iii) gains
and losses on
asset sales, Debt Restructurings or write-ups or forgiveness of
indebtedness,
(iv) gains and losses from extraordinary items, (v) payment of
preferred
dividends, calculated in conformity with GAAP, and (vi) an
adjustment to exclude
the straight-lining of rents.
"Indebtedness" as applied to any Person (and without
duplication),
means (a) all indebtedness, obligations or other liabilities of
such Person for
borrowed money or for the deferred purchase price of property or
services,
including all liabilities of such Person evidenced by Securities
or other
similar instruments, (b) all Contingent Obligations of such
Person, (c) all
indebtedness obligations or other liabilities of such Person or
others secured
by a Lien on any asset of such Person, in excess of 2.5% of
Total Liabilities in
the aggregate, whether or not such indebtedness, obligations or
liabilities are
assumed by, or are a personal liability of such Person, and (d)
all other items
which, in accordance with GAAP, would be included as liabilities
on the
liability side of, or in the footnotes to the balance sheet of
such Person,
exclusive, however, of
14
<PAGE>
all dividends and distributions declared but not yet paid.
Notwithstanding the
foregoing, whenever the term "Indebtedness" is used with respect
to the
Guarantors without expressly stating that such Indebtedness is
to be determined
on a consolidated basis, such "Indebtedness" shall only include
Guarantors'
Share of any Indebtedness of a Consolidated Subsidiary.
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Initial Borrower" means AMB Japan Finance Y.K., a Japan
yugen
kaisha.
"Insolvency Event" means with respect to any Person: (a) such
Person
becomes unable to pay its debts generally as such debts become
due (shiharai
funou), admits to a creditor its inability to pay its debts
generally as such
debts become due (shiharai teishi) or makes a general assignment
or settlement
for the benefit of creditors (nin'i seiri); (b) a court having
appropriate
jurisdiction enters a decree or order for relief in respect of
such Person in an
involuntary case under any applicable Bankruptcy Law or similar
law now or
hereafter in effect, or appoints a receiver, liquidator,
assignee, custodian,
sequestrator, conservator (hozen kanrinin), trustee (kanzai
nin), supervisor
(kantoku i'in), inspector (chosei i'in) or similar official of
such Person, of
all or any substantial part of the property thereof, or orders
the winding up or
liquidation of the affairs of such Person, and such decree or
order remains
unstayed and in effect for a period of ninety (90) consecutive
days; (c) such
Person commences a voluntary proceeding under any applicable
Bankruptcy Law or
similar law now or hereafter in effect, or consents to or makes
no objection
against the entry of an order for relief in an involuntary
proceeding under any
such law, or applies for, consents to or acquiesces in the
appointment of or
taking possession by a receiver, liquidator, assignee,
custodian, sequestrator,
conservator (hozen kanrinin), trustee (kanzai nin), supervisor
(kantoku i'in),
inspector (chosa i'in) or similar official of such Person, of
all or any
substantial part of the property thereof, or makes any general
assignment or
settlement for the benefit of the creditors thereof; (d) such
Person's assets,
such as its bank accounts, are subject to the issuance of an
order or a notice
of provisional attachment (kari sashiosae), temporary
attachment
(hozen-sashiosae) or permanent attachment (sashiosae); or (e)
the clearing house
takes procedures for suspension of such Person's transactions
with banks or
other financial institutions (torihiki teishi shobun).
"Interest Expense" means, for any period and without
duplication,
total interest expense, whether paid, accrued or capitalized,
determined in
accordance with GAAP, with respect to the Balance Sheet
Indebtedness of the
Guarantors, plus Guarantors' Share of accrued, paid or
capitalized interest with
respect to any Balance Sheet Indebtedness of Investment
Affiliates and
Consolidated Subsidiaries (in each case, including, without
limitation, the
interest component of Capital Leases but excluding interest
expense covered by
an interest reserve established under a loan facility such as
capitalized
construction interest provided for in a construction loan).
15
<PAGE>
"Interest Period" means with respect to each TIBOR Borrowing,
the
period commencing on the date of such Borrowing specified in the
Notice of
Borrowing or on the date specified in the applicable Notice of
Interest Rate
Election and ending 1, 2, 3 or 6 months thereafter (or a period
less than 1
month with the reasonable approval of Administrative Agent,
unless any Bank has
previously advised Administrative Agent and Guarantors that it
is unable to
enter into a contract for Yen deposits in the Tokyo interbank
market for an
Interest Period of the same duration) as the applicable Borrower
may elect in
the applicable Notice of Borrowing or Notice of Interest Rate
Election;
provided, that:
(a) any Interest Period which would otherwise end on a day which
is
not a Business Day shall be extended to the next succeeding
Business Day
unless such Business Day falls in another calendar month, in
which case
such Interest Period shall end on the next preceding Business
Day;
(b) any Interest Period which 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;
and
(c) no Interest Period may end later than the Maturity Date.
"Interest Rate Contracts" means, collectively, interest rate
swap,
collar, cap or similar agreements providing interest rate
protection.
"Intermediate Tier Entity" has the meaning set forth in
Section
5.14.
"International FinCo" has the meaning set forth in Section
5.14.
"Intracompany Indebtedness" means Indebtedness whose obligor
and
obligee are each either or both of the Guarantors or a
Consolidated Subsidiary.
"Investment Affiliate" means any Person in whom either or both
of
the Guarantors hold an equity interest, directly or indirectly,
whose financial
results are not consolidated under GAAP with the financial
results of either or
both Guarantors on their respective consolidated financial
statements.
"Investment Affiliate EBITDA" means, for any period (i) Income
from
Operations of an Investment Affiliate for such period, plus (ii)
depreciation
and amortization expense and other non-cash items deducted in
the calculation of
Income from Operations of such Investment Affiliate for such
period, plus (iii)
Interest Expense deducted in the calculation of Income from
Operations of such
Investment Affiliate for such period, all of the foregoing
without duplication.
16
<PAGE>
"Investment Grade Rating" means a rating for a Person's
senior
long-term unsecured debt of BBB- or better from S&P or a
rating of Baa3 or
better from Moody's. In the event that AMB LP receives Credit
Ratings only from
S&P and Moody's, and such Credit Ratings are not equivalent,
the lower of such
two (2) Credit Ratings shall be used to determine whether an
Investment Grade
Rating was achieved. In the event that AMB LP receives more than
two (2) Credit
Ratings, and such Credit Ratings are not all equivalent, the
second highest
Credit Rating shall be used to determine whether an Investment
Grade Rating was
achieved, provided that one of the highest two (2) Credit
Ratings is from S&P or
Moody's; provided, further, that if neither of the highest two
(2) Credit
Ratings is from S&P or Moody's, then the highest Credit
Rating from either S&P
or Moody's shall be used to determine whether an Investment
Grade Rating was
achieved.
"Investment Mortgages" means mortgages securing indebtedness
with
respect to Real Property Assets directly or indirectly owed to
AMB LP or any of
its Subsidiaries, including, without limitation, certificates of
interest in
real estate mortgage investment conduits.
"Joint Lenders" has the meaning set forth in Section 5.14.
"Joint Venture Interests" means partnership, joint venture,
membership or other equity interests issued by any Person which
is an Investment
Affiliate that is not a Subsidiary, is not consolidated with AMB
LP and is not
controlled by a Joint Venture Parent.
"Joint Venture Parent" means AMB LP or one or more Financing
Partnerships of AMB LP which directly or indirectly owns any
interest in a Joint
Venture Subsidiary.
"Joint Venture Subsidiary" means any entity (other than a
Financing
Partnership) in which (i) a Joint Venture Parent owns at least
50% of the
economic interests and (ii) the sale or financing of any
Property owned by such
Joint Venture Subsidiary is substantially controlled by a Joint
Venture Parent,
subject to customary provisions set forth in the organizational
documents of
such Joint Venture Subsidiary with respect to refinancings or
rights of first
refusal granted to other members of such Joint Venture
Subsidiary. For purposes
of the preceding sentence, the sale or financing of a Property
owned by a Joint
Venture Subsidiary shall be deemed to be substantially
controlled by a Joint
Venture Parent, if such Joint Venture Parent has the ability to
exercise a
buy-sell right in the event of a disagreement regarding the sale
or financing of
such Property.
"Lending Office" means, as to each Bank, its office, branch
or
affiliate located at its address set forth in its Administrative
Questionnaire
or such other office, branch or affiliate of such Bank as it may
hereafter
designate as its Lending Office by notice to each Borrower and
the
Administrative Agent.
17
<PAGE>
"Letter(s) of Credit" has the meaning provided in Section
2.2(b).
"Letter of Credit Collateral" has the meaning provided in
Section
6.7(b).
"Letter of Credit Collateral Account" has the meaning provided
in
Section 6.7.
"Letter of Credit Documents" has the meaning provided in
Section
2.19.
"Letter of Credit Usage" means at any time the sum of (i)
the
aggregate maximum amount available to be drawn under the Letters
of Credit then
outstanding, assuming compliance with all requirements for
drawing referred to
therein, and (ii) the aggregate amount of any Borrower's unpaid
obligations
under this Agreement in respect of the Letters of Credit.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge,
charge, security interest or encumbrance of any kind, or any
other type of
preferential arrangement, in each case that has the effect of
creating a
security interest, in respect of such asset. For the purposes of
this Agreement,
AMB LP or any Consolidated Subsidiary shall be deemed to own
subject to a Lien
any asset which it has acquired or holds subject to the interest
of a vendor or
lessor under any conditional sale agreement, capital lease or
other title
retention agreement relating to such asset.
"Loan" means a Base Rate Loan or a TIBOR Loan and "Loans" means
Base
Rate Loans or TIBOR Loans or any combination of the
foregoing.
"Loan Documents" means this Agreement, the Notes, the Guaranty,
the
Qualified Borrower Joinder Agreement, the Ratifications, the
Letter(s) of
Credit, the Letter of Credit Documents and the Security
Documents
"Majority Banks" means at any time Banks having at least 51% of
the
aggregate amount of Commitments, or if the Commitments shall
have been
terminated, holding Notes evidencing at least 51% of the
aggregate unpaid
principal amount of the Loans.
"Material Adverse Effect" means an effect resulting from any
circumstance or event or series of circumstances or events, of
whatever nature
(but excluding general economic conditions), which does or could
reasonably be
expected to, materially and adversely impair (i) the ability of
the Guarantors
and their respective Consolidated Subsidiaries, taken as a
whole, to perform
their respective obligations under the Loan Documents, or (ii)
the ability of
Administrative Agent or the Banks to enforce the Loan
Documents.
18
<PAGE>
"Materials of Environmental Concern" means and includes
pollutants,
contaminants, hazardous wastes, toxic and hazardous substances,
asbestos, lead,
petroleum and petroleum by-products.
"Maturity Date" shall mean the date when all of the
Obligations
hereunder shall be due and payable which shall be June 29, 2007,
unless
otherwise extended in accordance with Section 2.10(b) or
accelerated pursuant to
the terms hereof.
"Moody's" means Moody's Investors Services, Inc. or any
successor
thereto.
"Mortgage" shall have the meaning set forth in Section
2.13(a).
"Mortgage Perfection Document" shall have the meaning set forth
in
Section 2.13(e).
"Multiemployer Plan" means at any time an employee pension
benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which
any member of
the ERISA Group is then making or accruing an obligation to make
contributions
or has at any time after September 25, 1980 made contributions
or has been
required to make contributions (for these purposes any Person
which ceased to be
a member of the ERISA Group after September 25, 1980 will be
treated as a member
of the ERISA Group).
"Negative Pledge" means, with respect to any Property, any
covenant,
condition, or other restriction entered into by the owner of
such Property or
directly binding on such Property which prohibits or limits the
creation or
assumption of any Lien upon such Property to secure any or all
of the
Obligations; provided, however, that such term shall not include
(a) any
covenant, condition or restriction contained in any ground lease
from a
governmental entity, and (b) financial covenants given for the
benefit of any
Person that may be violated by the granting of any Lien on any
Property to
secure any or all of the Obligations.
"Net Income" means, for any period, net income as calculated
in
conformity with GAAP.
"Net Offering Proceeds" means all cash or other assets received
by
either or both of the Guarantors as a result of the issuance or
sale of common
shares of beneficial interest, preferred shares of beneficial
interest,
partnership interests, preferred partnership units, limited
liability company
interests, Convertible Securities or other ownership or equity
interests in
either or both of the Guarantors less customary costs and
discounts of issuance
paid by either or both of the Guarantors, as the case may
be.
"Net Price" means, with respect to the purchase of any
Property,
without duplication, (i) the aggregate purchase price paid as
cash consideration
for such purchase (without adjustment for prorations),
including, without
limitation, the principal amount
19
<PAGE>
of any note received or other deferred payment to be made in
connection with
such purchase (except as described in clause (ii) below) and the
value of any
non-cash consideration delivered in connection with such
purchase (including,
without limitation, shares or preferred shares of beneficial
interest in AMB
Corporation and OP Units or Preferred OP Units (as defined in
AMB LP's
partnership agreement)) plus (ii) reasonable costs of sale and
non-recurring
taxes paid or payable in connection with such purchase or
sale.
"Net Present Value" shall mean, as to a specified or
ascertainable
dollar amount, the present value, as of the date of calculation
of any such
amount using a discount rate equal to the Base Rate in effect as
of the date of
such calculation.
"Non-Recourse Indebtedness" means Indebtedness with respect to
which
recourse for payment is limited to (i) specific assets related
to a particular
Property or group of Properties encumbered by a Lien securing
such Indebtedness
or (ii) any Subsidiary (provided that if a Subsidiary is a
partnership, there is
no recourse to AMB LP or AMB Corporation as a general partner of
such
partnership); provided, however, that personal recourse of any
Guarantor for any
such Indebtedness for fraud, misrepresentation, misapplication
of cash, waste,
environmental claims and liabilities and other circumstances
customarily
excluded by institutional lenders from exculpation provisions
and/or included in
separate indemnification agreements in non-recourse financing of
real estate
shall not, by itself, prevent such Indebtedness from being
characterized as
Non-Recourse Indebtedness.
"Non-US Property" has the meaning set forth in Section 5.14.
"Non-US Property Owners" has the meaning set forth in Section
5.14.
"Notes" means (i) the promissory notes of the Initial Borrower
and
of each Qualified Borrower that is not a TMK, substantially in
the form of
Exhibit A-1 hereto and (ii) the undertakings of each Qualified
Borrower that is
a TMK, substantially in the form of Exhibit A-2 hereto,
evidencing the
obligation of each Borrower to repay the Loans, and "Note" means
any one of such
promissory notes or undertakings issued hereunder. Each
reference in this
Agreement to the "Note" of any Bank shall be deemed to refer to
and include any
or all Notes, as the context may require.
"Notice of Borrowing" means a notice from Borrower in
accordance
with Section 2.2.
"Notice of Interest Rate Election" has the meaning set forth
in
Section 2.7.
"Obligations" means all obligations, liabilities, indemnity
obligations and Indebtedness of every nature of the Credit
Parties from time to
time owing to
20
<PAGE>
Administrative Agent or any Bank under or in connection with
this Agreement or
any other Loan Document.
"OFAC List" has the meaning set forth in Section 9.22(a).
"Parent" means, with respect to any Bank, any Person
controlling
such Bank.
"Participant" has the meaning set forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity
succeeding to any or all of its functions under ERISA.
"Permitted Holdings" means Unimproved Assets, Development
Activity,
Joint Venture Interests, interests in Taxable REIT Subsidiaries
and Investment
Mortgages, but only to the extent permitted in Section 5.8.
"Permitted Liens" means:
a. Liens for Taxes, assessments or other governmental charges
not
yet due and payable or which are being contested in good faith
by
appropriate proceedings promptly instituted and diligently
conducted in
accordance with the terms hereof;
b. statutory liens of carriers, warehousemen, mechanics,
materialmen
and other similar liens imposed by law, which are incurred in
the ordinary
course of business for sums not more than sixty (60) days
delinquent or
which are being contested in good faith in accordance with the
terms
hereof;
c. deposits made in the ordinary course of business in
connection
with worker's compensation, unemployment insurance and other
social
security legislation or to secure liabilities to insurance
carriers;
d. utility deposits and other deposits to secure the performance
of
bids, trade contracts (other than for borrowed money), leases,
purchase
contracts, construction contracts, governmental contracts,
statutory
obligations, surety bonds, performance bonds and other
obligations of a
like nature incurred in the ordinary course of business;
e. Liens for purchase money obligations for equipment (or Liens
to
secure Indebtedness incurred within 90 days after the purchase
of any
equipment to pay all or a portion of the purchase price thereof
or to
secure Indebtedness incurred solely for the purpose of financing
the
acquisition of any such equipment, or extensions, renewals,
or
replacements of any of the foregoing for the same or lesser
amount);
provided that (i) the Indebtedness secured by any
21
<PAGE>
such Lien does not exceed the purchase price of such equipment,
(ii) any
such Lien encumbers only the asset so purchased and the proceeds
upon
sale, disposition, loss or destruction thereof, and (iii) such
Lien, after
giving effect to the Indebtedness secured thereby, does not give
rise to
an Event of Default;
f. easements, rights-of-way, zoning restrictions, other
similar
charges or encumbrances and all other items listed on Schedule B
to any
Credit Party's owner's title insurance policies, except in
connection with
any Indebtedness, for any Credit Party's Real Property Assets,
so long as
the foregoing do not interfere in any material respect with the
use or
ordinary conduct of the business of any Credit Party's and do
not diminish
in any material respect the value of the Property to which it is
attached
or for which it is listed;
g. (I) Liens and judgments which have been or will be bonded
(and
the Lien on any cash or securities serving as security for such
bond) or
released of record within thirty (30) days after the date such
Lien or
judgment is entered or filed against any Credit Party and/or
any
Subsidiary, or (II) Liens which are being contested in good
faith by
appropriate proceedings for review and in respect of which there
shall
have been secured a subsisting stay of execution pending such
appeal or
proceedings and as to which the subject asset is not at risk
of
forfeiture;
h. Liens on Property of any Credit Party or their respective
Subsidiaries (other than Qualifying Unencumbered Property)
securing
Indebtedness which may be incurred or remain outstanding without
resulting
in an Event of Default hereunder; and
i. Liens in favor of a Credit Party against any asset of any
Financing Partnership or Joint Venture Subsidiaries.
"Person" means an individual, a corporation, a partnership,
a
limited liability company, an association, a trust or any other
entity or
organization, including, without limitation, a government or
political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
(other
than a Multiemployer Plan) which is covered by Title IV of ERISA
or subject to
the minimum funding standards under Section 412 of the Code and
either (i) is
maintained, or contributed to, by any member of the ERISA Group
for employees of
any member of the ERISA Group or (ii) has at any time within the
preceding five
years been maintained, or contributed to, by any Person which
was at such time a
member of the ERISA Group for employees of any Person which was
at such time a
member of the ERISA Group.
22
<PAGE>
"Preferred Stock Subsidiary" means a corporation organized with
two
classes of stock, consisting of one class of voting common
shares and one class
of non-voting preferred shares, all of whose preferred shares
are owned by a
Person seeking to be treated as a real estate investment trust
under the Code
(or an operating partnership of which such Person is general
partner) and all of
the common shares of which are owned by individuals or entities
who are neither
owned nor controlled by such Person (but which individuals may
be, and which
entities may be owned and controlled by, officers, directors or
employees of
such Person), and to which such Person (or an operating
partnership of which
such Person is general partner) has contributed at least
ninety-five percent
(95%) or more of the equity capital raised by such corporation
in exchange for
the issuance of such corporation's shares.
"Prime Rate" means for any day a fluctuating rate per annum
equal to
the rate of interest in effect for such day as publicly
announced by the
Administrative Agent from time to time as its "short prime rate"
in Japan (it
being understood that the same shall not necessarily be the best
rate offered by
the Administrative Agent to customers).
"Pro Rata Share" means, with respect to any Bank, as applicable,
(a)
a fraction (expressed as a percentage), the numerator of which
shall be the
amount of such Bank's Commitment and the denominator of which
shall be the
aggregate amount of all of the Banks' Commitments as adjusted
from time to time
in accordance with the provisions of this Agreement.
"Property" means, with respect to any Person, any real or
personal
property, building, facility, structure, equipment or unit, or
other asset owned
by such Person.
"Qualified Borrower" means a (i) TMK or limited liability
company
(yugen kaisha) organized under the laws of Japan or (ii) a Japan
branch of a
limited partnership, limited liability company or other business
entity
organized under the laws of the United States (including any
state or District
of Columbia), duly registered in Japan, which is at least 50%
owned, directly or
indirectly, by AMB LP and of which AMB LP (or a Person that is
owned and
controlled, directly or indirectly, by AMB LP) is the sole
shareholder, general
partner or managing member, or otherwise exercises control over
such entity and
the Indebtedness of which, in all cases, can be guaranteed by
the Guarantors
pursuant to the provisions of the Guarantors' formation
documents and who has
been added as a Qualified Borrower hereunder in accordance with
Section 2.20(a).
The initial Qualified Borrowers are set forth on Schedule
1.1(a).
"Qualified Borrower Joinder Agreements" means, collectively, one
or
more Qualified Borrower Joinder Agreements, among Administrative
Agent (on
behalf of the Banks) and a Qualified Borrower relating to a
Subsidiary which is
to become a Qualified Borrower hereunder at any time on or after
the date of
this Agreement, the form of which is attached hereto as Exhibit
B.
23
<PAGE>
"Qualified Borrower Joinder Documents" means, as to any
Qualified
Borrower Joinder Agreement, collectively, all documents,
instruments and
certificates required by such Qualified Borrower Joinder
Agreement to be
delivered pursuant to the terms thereof.
"Qualified Borrower Undertaking" means the undertakings of
each
Qualified Borrower that is a TMK, substantially in the form of
Exhibit A-2
hereto, evidencing the obligation of such Qualified Borrower to
repay the Loans
made to such Qualified Borrower.
"Qualified Institution" means a Bank, or one or more banks,
finance
companies, insurance or other financial institutions which (A)
has (or, in the
case of a bank which is a subsidiary, such bank's parent has) a
rating of its
senior debt obligations of not less than Baa-1 by Moody's or a
comparable rating
by a rating agency acceptable to Administrative Agent, (B) has
total assets in
excess of US$10,000,000,000 (or its equivalent in alternate
currency) and (C) is
a Qualified Institutional Investor.
"Qualified Institutional Investor" (tekikaku kikan toshika) has
the
meaning assigned thereto in Article 2, Section 3, item 1 of the
Securities and
Exchange Law (shoken torihiki ho) of Japan (Law No. 25 of 1948,
as amended from
time to time) and Article 4, Section 1 of the regulations
relating to the
definitions contained in such Article 2.
"Qualified TMK" means a TMK which satisfies the requirements
set
forth in Article 67-14 of the Special Taxation Measures Law
(sozei tokubetsu
sochi hou) of Japan (Law No. 26 of 1957, as amended from time to
time) for the
ability to deduct dividends from its taxable income and which
deducts the
maximum possible amount thereunder.
"Qualifying Unencumbered Property" means any retail or
industrial
Property (including Unimproved Assets and Construction Assets
but excluding
interests in participating mortgages in which such Person's
interest therein is
characterized as equity according to GAAP) from time to time
which (i) is an
operating Real Property Asset which is owned directly or
indirectly 100% in fee
(or ground leasehold) by AMB LP, a Financing Partnership or a
Joint Venture
Subsidiary, (ii) is not subject (nor are any equity interests in
such Property
that are owned directly or indirectly by a Guarantor or any
Joint Venture Parent
subject) to a Lien which secures Indebtedness of any Person
other than Permitted
Liens, (iii) is not subject (nor are any equity interests in
such Property that
are owned directly or indirectly by a Guarantor or any Joint
Venture Parent
subject) to any Negative Pledge (provided that a financial
covenant given for
the benefit of any Person that may be violated by the granting
of any Lien on
any Property to secure any or all of the Obligations shall not
be deemed a
Negative Pledge); provided, however, if, at the end of any
Fiscal Quarter, (x)
less than 85% of the rentable square feet of all Qualifying
Unencumbered
Properties (other than Unimproved Assets and Construction
Assets) are then
occupied by tenants, and (y) during the prior four (4) Fiscal
Quarters,
24
<PAGE>
less than an average of 85% of the rentable square feet of all
Qualifying
Unencumbered Properties (other than Unimproved Assets and
Construction Assets)
were occupied by tenants, then AMB LP shall select a sufficient
number of
Qualifying Unencumbered Properties to be disregarded in
determining Unencumbered
Asset Value such that as to the remaining Qualifying
Unencumbered Properties
either (x) no less than 85% of the rentable square feet of such
remaining
Qualifying Unencumbered Properties (other than Unimproved Assets
and
Construction Assets) are then occupied by tenants, or (y) during
the prior four
Fiscal Quarters, no less than an average of 85% of the rentable
square feet of
such remaining Qualifying Unencumbered Properties (other than
Unimproved Assets
and Construction Assets) were occupied by tenants. The initial
Qualifying
Unencumbered Properties are set forth on Schedule 1.1(b).
"Ratification" shall have the meaning set forth in Section
2.13(a).
"Rating Agencies" means, collectively, S&P, Moody's and
Fitch.
"Real Property Assets" means as to any Person as of any time,
the
real property assets (including, without limitation, interests
in participating
mortgages in which such Person's interest therein is
characterized as equity
according to GAAP) owned directly or indirectly by such Person
at such time.
"Recourse Debt" shall mean Indebtedness that is not
Non-Recourse
Indebtedness.
"Regulation U" means Regulation U of the Board of Governors of
the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66 2/3%
of
the aggregate amount of the Commitments or, if the Commitments
shall have been
terminated, holding Notes evidencing at least 66 2/3% of the
aggregate unpaid
principal amount of the Loans.
"REIT" means a real estate investment trust, as defined
under
Section 856 of the Code.
"S&P" means Standard & Poor's Ratings Services, a
division of The
McGraw-Hill Companies, Inc., or any successor thereto.
"Second Tier Funding Loan" has the meaning in Section 5.14.
"Secured Debt" means Indebtedness (but excluding
Intracompany
Indebtedness), the payment of which is secured by a Lien (other
than a Permitted
Lien, except for those Permitted Liens described in clause (h)
of the definition
thereof) on any Property owned or leased by a Guarantor plus
Guarantors' Share
of Indebtedness (but excluding Intracompany Indebtedness), the
payment of which
is secured by a Lien (other
25
<PAGE>
than a Permitted Lien, except for those Permitted Liens
described in clause (h)
of the definition thereof) on any Property owned or leased by
any Investment
Affiliate or any Consolidated Subsidiary.
"Secured Option" shall have the meaning set forth in Section
2.13
(a).
"Secured Property" shall have the meaning set forth in
Section
2.13(a).
"Security Document" shall have the meaning set forth in
Section
2.13(a).
"Securities" means any stock, partnership interests, shares,
shares
of beneficial interest, voting trust certificates, bonds,
debentures, notes or
other evidences of indebtedness, secured or unsecured,
convertible, subordinated
or otherwise, or in general any instruments commonly known as
"securities," or
any certificates of interest, shares, or participations in
temporary or interim
certificates for the purchase or acquisition of, or any right to
subscribe to,
purchase or acquire any of the foregoing, but shall not include
Joint Venture
Interests, any interest in any Subsidiary of a Guarantor, any
interest in a
Taxable REIT Subsidiary, any Indebtedness which would not be
required to be
included on the liabilities side of the balance sheet of the
Guarantors on a
consolidated basis in accordance with GAAP, any Cash or Cash
Equivalents or any
evidence of the Obligations.
"Share Pledge" shall have the meaning set forth in Section
2.13(a).
"Solvent" means, with respect to any Person, that the fair
saleable
value of such Person's assets exceeds the Indebtedness of such
Person.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting
power to elect a
majority of the board of directors or other persons performing
similar functions
are at the time directly or indirectly owned by a Guarantor.
"Subsidiary Operating Partnership" shall mean a limited
liability
company or limited partnership in which the only interest
therein not owned
(directly or indirectly) by a Guarantor shall be preference
interests or
preference units, respectively.
"Substantially Controlled by AMB LP" means, with respect to
any
action, that such action is substantially controlled by AMB LP
as contemplated
under Section 5.14.
"Syndication Agent" means Mizuho Corporate Bank, Ltd., in
its
capacity as syndication agent hereunder and its permitted
successors in such
capacity in accordance with the terms of this Agreement.
26
<PAGE>
"TBI Pledge" shall have the meaning set forth in Section
2.13(a).
"Taxable REIT Subsidiary" means any corporation (other than a
REIT)
in which AMB Corporation directly or indirectly owns stock and
AMB Corporation
and such corporation jointly elect that such corporation shall
be treated as a
taxable REIT subsidiary of AMB Corporation under and pursuant to
Section 856 of
the Code.
"Taxes" means all federal, state, local and foreign income and
gross
receipts taxes.
"Term" has the meaning set forth in Section 2.10.
"Termination Event" shall mean (i) a "reportable event", as
such
term is described in Section 4043 of ERISA (other than a
"reportable event" not
subject to the provision for 30-day notice to the PBGC), or an
event described
in Section 4062(e) of ERISA, (ii) the withdrawal by any member
of the ERISA
Group from a Multiemployer Plan during a plan year in which it
is a "substantial
employer" (as defined in Section 4001(a)(2) of ERISA), or the
incurrence of
liability by any member of the ERISA Group under Section 4064 of
ERISA upon the
termination of a Multiemployer Plan, (iii) the filing of a
notice of intent to
terminate any Plan under Section 4041 of ERISA, other than in a
standard
termination within the meaning of Section 4041 of ERISA, or the
treatment of a
Plan amendment as a distress termination under Section 4041 of
ERISA, (iv) the
institution by the PBGC of proceedings to terminate, impose
liability (other
than for premiums under Section 4007 of ERISA) in respect of, or
cause a trustee
to be appointed to administer, any Plan or (v) any other event
or condition that
might reasonably constitute grounds for the termination of, or
the appointment
of a trustee to administer, any Plan or the imposition of any
liability or
encumbrance or Lien on the Real Property Assets or any member of
the ERISA Group
under ERISA or the Code.
"TIBOR" means (a) the interest rate offered for Yen deposits for
a
period comparable to the applicable Interest Period which
appears on the screen
display designated as "Reuters Screen TIBM" under the caption
"Average of 10
Banks" on the Reuters Service (or such other screen display or
service as may
replace it for the purpose of displaying Tokyo interbank offered
rates of prime
banks for Yen deposits) at or about 11:00 am (New York time) on
the second
Business Day before the first day of the applicable Interest
Period or (b) if no
such interest rate is available on the Reuters Service (or such
replacement),
the interest rate offered for Yen deposits for a period
comparable to the
applicable Interest Period which appears on the screen display
designated as
"Euro-Yen TIBOR" on page 23070 of the Telerate Service published
by the Japanese
Bankers Association (or such other screen display or service as
may replace it
for the purpose of displaying Tokyo interbank offered rates of
prime banks for
Yen deposits) at or about 11:00 am (New York time) on the second
Business Day
before the first day of the applicable Interest Period; or (c)
if no such
interest rate is available on the Reuters Service (or such
replacement) or the
Telerate Service (or such replacement), the rate per annum which
the TIBOR
Reference Bank is offering to leading banks in the
27
<PAGE>
Tokyo interbank market for deposits in Yen for a period equal to
the applicable
Interest Period at or about 11:00 a.m. (New York time) on the
second Business
Day before the first day of the applicable Interest Period; or
(d) if no such
interest rate is available on the Reuters Service (or such
replacement) or the
Telerate Service (or such replacement) and the TIBOR Reference
Bank is unable to
provide the rate referred to in (b) above, the Prime Rate.
"TIBOR Loan" means a Committed Loan to be made by a Bank as a
TIBOR
Loan in accordance with the provisions of this Agreement.
"TIBOR Reference Bank" means Sumitomo Mitsui Banking
Corporation".
"Tiered Non-US Property" has the meaning set forth in Section
5.14.
"TMK" means a special purpose corporation (tokutei mokuteki
kaisha)
organized under TMK Law.
"TMK Law" means the Law Regarding Liquidation of Assets (Shisan
no
Ryudoka ni Kansuru Horitsu) of Japan (Law No. 105 of 1998, as
amended from time
to time).
"Total Asset Value" means, with respect to AMB LP and
without
duplication, (i) the quotient obtained by dividing (a) (x) (1)
Adjusted EBITDA
for the previous four (4) Fiscal Quarters most recently ended,
minus (2) for any
Property (other than Construction Assets or Unimproved Assets)
which was
acquired by AMB LP, a Consolidated Subsidiary or an Investment
Affiliate in any
of the previous four (4) Fiscal Quarters, the Adjusted EBITDA
attributable to
such Property to the extent the same was included in the
Adjusted EBITDA of AMB
LP in clause (1) of this definition by (b) the FMV Cap Rate,
plus (ii) for any
Property which was acquired by AMB LP in any of the previous
four (4) Fiscal
Quarters, the sum of (x) the Net Price of the Property paid by
AMB LP for such
Property and (y) the cost of capital expenditures actually
incurred in
connection with such Property, plus (iii) for any Property which
was acquired by
an Investment Affiliate or a Consolidated Subsidiary in any of
the previous four
(4) Fiscal Quarters, the sum of (x) Guarantors' Share of the Net
Price of the
Property paid by such Investment Affiliate or such Consolidated
Subsidiary, as
applicable, for such Property, and (y) Guarantors' Share of the
cost of capital
expenditures actually incurred in connection with such Property
plus (iv) the
value of any Cash or Cash Equivalent owned by AMB LP, and
Guarantors' Share of
any Cash or Cash Equivalents owned by any Consolidated
Subsidiary or Investment
Affiliate plus (v) the value of any Construction Assets,
Unimproved Assets and
any other tangible assets of AMB LP (including foreign currency
exchange
agreements, to the extent such agreements are material and are
reported or are
required under GAAP to be reported by AMB LP in its financial
statements), as
measured on a GAAP basis, plus (vi) Guarantors' Share of the
value of any
Construction Assets, Unimproved Assets and any other tangible
assets of any
28
<PAGE>
Investment Affiliate or any Consolidated Subsidiary as measured
on a GAAP basis.
For purposes of the foregoing, a Property which was a
Construction Asset will be
deemed to have been acquired on the date it ceases to be a
Construction Asset.
"Total Liabilities" means, as of the date of determination
and
without duplication, all Balance Sheet Indebtedness of the
Guarantors plus
Guarantors' Share of all Balance Sheet Indebtedness of
Investment Affiliates and
Consolidated Subsidiaries.
"Unencumbered Asset Value" means (i) for any Qualifying
Unencumbered
Properties (other than Unimproved Assets and Construction
Assets) which were
neither acquired or disposed of by AMB LP, a Financing
Partnership, a Preferred
Stock Subsidiary or a Joint Venture Subsidiary in the previous
four (4) Fiscal
Quarters, the quotient of (a) (x) the Unencumbered Net Operating
Income for such
Fiscal Quarters, and less (z) in the case of any Qualifying
Unencumbered
Property located outside of the United States, an amount equal
to the applicable
withholding taxes imposed by any foreign jurisdiction applicable
to the
Unencumbered Net Operating Income attributable to any such
Qualifying
Unencumbered Property for the applicable period, divided by (b)
the FMV Cap
Rate, plus (ii) for all Unimproved Assets and Construction
Assets and for all
Qualifying Unencumbered Properties owned (directly or
beneficially) by AMB LP,
any Financing Partnership, Preferred Stock Subsidiary or any
Joint Venture
Subsidiary which were acquired (directly or indirectly) by AMB
LP, any Financing
Partnership, any Preferred Stock Subsidiary or any Joint Venture
Subsidiary
during any of the previous four (4) Fiscal Quarters most
recently ended, the
aggregate Net Price of such Qualifying Unencumbered Properties
paid by AMB LP or
its Affiliates for such Qualifying Unencumbered Properties plus
all capital
expenditures actually incurred in connection with such Property;
provided,
however, that, unless otherwise approved by the Required Banks,
(aa) in the
event any such Qualifying Unencumbered Property is owned by a
Joint Venture
Subsidiary, the amount of the Unencumbered Net Operating Income
attributable to
such Qualifying Unencumbered Property for purposes of clause (i)
above and the
Net Price of, and capital expenditures actually incurred in
connection with,
such Qualifying Unencumbered Property for the purposes of clause
(ii) above
shall be reduced to Guarantor's Share thereof, (bb) the portion
of the aggregate
amount of the Unencumbered Asset Value attributable to
Qualifying Unencumbered
Properties that are Qualifying Unencumbered Properties located
in the United
States and owned by a Joint Venture Subsidiary or a Consolidated
Subsidiary
(other than Qualifying Unencumbered Properties owned by a
Subsidiary Operating
Partnership) (after first taking into account the adjustment
provided in clause
(aa) of this proviso) which would cause such aggregate amount to
exceed fifteen
percent (15%) of the total Unencumbered Asset Value at such time
will be
disregarded in determining Unencumbered Asset Value, (cc) the
portion of the
amount of the Unencumbered Asset Value attributable to all
Qualifying
Unencumbered Property located outside of the United States
(after first taking
into account the adjustment provided in clause (aa) of this
proviso) which would
cause such amount to exceed fifteen percent (15%) of the total
Unencumbered
Asset Value at such time (after making all adjustments required
by this proviso)
will be
29
<PAGE>
disregarded in determining Unencumbered Asset Value, (dd) the
portion of the
aggregate amount of the Unencumbered Asset Value attributable to
Qualifying
Unencumbered Properties that are Unimproved Assets or
Construction Assets (after
first taking into account the adjustment provided in clause (aa)
of this
proviso) which would cause such amount to exceed twenty percent
(20%) of the
total Unencumbered Asset Value at such time (after making all
adjustments
required by this proviso) will be disregarded in determining
Unencumbered Asset
Value and (ee) the portion of the aggregate amount of the
Unencumbered Asset
Value attributable to such Qualifying Unencumbered Property
described in clauses
(bb), (cc) and (dd) which would cause such aggregate amounts to
exceed
twenty-five percent (25%) of the total Unencumbered Asset Value
at such time
will be disregarded in determining Unencumbered Asset Value
(after first taking
into account the adjustment provided in clause (aa) of this
proviso). For
purposes of the foregoing, a Qualifying Unencumbered Property
which was a
Construction Asset shall be deemed to have been acquired on the
date it ceases
to be a Construction Asset.
"Unencumbered Net Operating Cash Flow" means, as of any date
of
determination, the Unencumbered Net Operating Income for the
previous four (4)
Fiscal Quarters (provided that as to any Qualifying Unencumbered
Property
acquired during such period and owned for not less than one (1)
Fiscal Quarter,
Unencumbered Net Operating Income attributable to such period
occurring after
such acquisition shall be annualized).
"Unencumbered Net Operating Income" means, for any period, for
all
Qualifying Unencumbered Properties, the aggregate revenues from
each such
Qualifying Unencumbered Property for such period (including,
without limitation,
lease termination fees appropriately amortized, but excluding
deferred rents
receivable), less the cost of maintaining such Qualifying
Unencumbered
Properties (including, without limitation, taxes, insurance,
repairs and
maintenance, but excluding depreciation, amortization, interest
costs and
capital expenditures) (provided that as to any Qualifying
Unencumbered Property
acquired during such period, only revenues and property level
expenses
attributable to such period occurring after such acquisition
shall be included),
as adjusted for (i) capital expenditure reserves at the rate of
Ten Cents (US)
(US$0.10, or in the case of any Qualifying Unencumbered Property
owned by a
Joint Venture Subsidiary, Guarantors' Share of Ten Cents (US)
(US$0.10)) per
square foot per annum of space leased as of the applicable date
of determination
(provided that, as to any Qualifying Unencumbered Property
acquired during such
period, such amount per square foot shall be pro-rated for the
period of
ownership) and (ii) to exclude the effects of straight-lining of
rents.
"Unimproved Assets" means Real Property Assets (or, in the case
of
any Real Property Assets to be developed in phases, any phase
thereof)
containing no material improvements other than infrastructure
improvements such
as roads, utility feeder lines and the like.
30
<PAGE>
"United States" means the United States of America, including
the
fifty states and the District of Columbia.
"Unqualified TMK" means a TMK which is not a Qualified TMK.
"Unsecured Debt" means the amount of Indebtedness (excluding
Intracompany Indebtedness) for borrowed money of the Guarantors,
any Financing
Partnership, any Preferred Stock Subsidiary or Joint Venture
Subsidiary and
which is not Secured Debt, including, without limitation, the
amount of all then
outstanding Loans, provided, however, for the purpose of
calculating the ratio
of outstanding Unsecured Debt to Unencumbered Asset Value, in
the case of any
Preferred Stock Subsidiary, Joint Venture Subsidiary or
Consolidated Subsidiary,
only an amount equal to the Guarantors' Share in each such
entity (excluding
Intracompany Indebtedness) times any Indebtedness for borrowed
money of such
entity shall be included in Unsecured Debt.
"Unsecured Interest Expense" means, as of any date of
determination,
for the previous four (4) Fiscal Quarters, the Interest Expense
paid, accrued or
capitalized on Unsecured Debt.
"Unused Commitments" shall mean an amount equal to all
unadvanced
funds (other than unadvanced funds in connection with any
construction loan)
which any third party is obligated to advance to AMB LP or
another Person or
otherwise pursuant to any loan document, written instrument or
otherwise.
"Yen" and "JPY" shall denote the lawful currency of Japan.
SECTION 1.2. Accounting Terms and Determinations. Unless
otherwise
specified herein, all accounting terms used herein shall be
interpreted, all
accounting determinations hereunder shall be made, and all
financial statements
required to be delivered hereunder shall be prepared in
accordance with GAAP
applied on a basis consistent (except for changes concurred in
by AMB LP's
independent public accountants) with the most recent audited
consolidated
financial statements of AMB LP and its Consolidated Subsidiaries
delivered to
the Administrative Agent; provided that for purposes of
references to the
financial results and information of "AMB Corporation, on a
consolidated basis,"
AMB Corporation shall be deemed to own one hundred percent
(100%) of the
partnership interests in AMB LP; and provided further that, if
AMB LP notifies
the Administrative Agent that AMB LP wishes to amend any
covenant in Article V
to eliminate the effect of any change in GAAP on the operation
of such covenant
(or if the Administrative Agent notifies AMB LP that the
Required Banks wish to
amend Article V for such purpose), then AMB LP's compliance with
such covenant
shall be determined on the basis of GAAP in effect immediately
before the
relevant change in GAAP became effective, until either such
notice is withdrawn
or such covenant is amended in a manner reasonably satisfactory
to AMB LP and
the Required Banks.
31
<PAGE>
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes
the
aggregation of Loans of one or more Banks to be made to each
Borrower pursuant
to Article 2 on the same date, all of which Loans are of the
same type (subject
to Article 8) and, except in the case of Base Rate Loans have
the same initial
Interest Period. Borrowings are classified for purposes of this
Agreement either
by reference to the pricing of Loans comprising such Borrowing
or by reference
to the provisions of Article 2 under which participation therein
is determined
(i.e., a "Committed Borrowing" is a Borrowing under Section 2.1
in which all
Banks participate in proportion to their Commitments).
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend. Each Bank severally agrees, on
the
terms and conditions set forth in this Agreement, (a) to make
Loans to each
Borrower and participate in Letters of Credit issued by the
Fronting Bank on
behalf of each Borrower pursuant to this Article from time to
time during the
term hereof in amounts such that the aggregate principal amount
of Committed
Loans by such Bank at any one time outstanding together with
such Bank's pro
rata share of the Letter of Credit Usage at such time shall not
exceed the
amount of its Commitment. Each Borrowing outstanding under this
Section 2.1
shall be in an aggregate principal amount of JPY300,000,000 or
an integral
multiples of JPY1,000,000 in excess thereof (except that any
such Borrowing may
be in the aggregate amount available in accordance with Section
3.2(b), or in
any amount required to reimburse the Fronting Bank for any
drawing under any
Letter of Credit) and shall be made from the several Banks
ratably in proportion
to their respective Commitments. In no event shall the aggregate
amount
outstanding at any time, plus the outstanding amount of the
Letter of Credit
Usage, exceed JPY24,000,000,000 (the "Facility Amount"). Subject
to the
limitations set forth herein, any amounts repaid may be
reborrowed.
SECTION 2.2. Notice of Borrowing.
(a) With respect to any Committed Borrowing, the applicable
Borrower
shall give Administrative Agent notice not later than 1:00 P.M.
(New York time)
(x) the second (2nd) Business Day prior to each Base Rate
Borrowing, or (y) the
fourth (4th) Business Day before each TIBOR Borrowing or (z)
with respect to any
Secured Borrowing, regardless of whether it is a Base Rate
Borrowing or a TIBOR
Borrowing, the tenth (10th) Business Day prior to such Secured
Borrowing,
specifying:
(i) the date of such Borrowing, which shall be a Business
Day,
(ii) the aggregate amount of such Borrowing,
32
<PAGE>
(iii) whether the Loans comprising such Borrowing are to be
Base
Rate Loans or TIBOR Loans,
(iv) in the case of a TIBOR Borrowing, the duration of the
Interest
Period applicable thereto, subject to the provisions of the
definition of
Interest Period,
(v) such information as is requested in Schedule 2.2(a)
hereto
relating to the project, if any, for which the Borrowing will be
used,
unless such information has been previously provided;
(vi) if such Borrowing is a Secured Borrowing, the Secured
Property
and the collateral to be granted;
(vii) payment instructions for delivery of such Borrowing;
and
(viii) certify that no Guarantor Default or Guarantor Event
of
Default has occurred and is continuing and, with respect to such
Borrower,
no Borrower Default or Borrower Event of Default has occurred
and is
continuing.
(b) The applicable Borrower shall give the Administrative Agent
and
the Fronting Bank written notice in the event that it desires to
have Letters of
Credit (each, a "Letter of Credit") issued on behalf of such
Borrower or a
Subsidiary thereof hereunder no later than 1:00 P.M. (New York
time) at least
five (5) Business Days (or if such Letter of Credit is to be
secured, at least
ten (10) Business Days) prior to, but excluding, the date of
such issuance. Each
such notice shall (i) specify the aggregate amount of the
requested Letters of
Credit, (ii) specify the individual amount of each requested
Letter of Credit
and the number of Letters of Credit to be issued, (iii) specify
the date of such
issuance (which shall be a Business Day)), (iv) state the name
and address of
the beneficiary, (vi) the expiration date of the Letter of
Credit (which in no
event shall be later than fifteen (15) days prior to the
Maturity Date or twelve
(12) months after the issuance of such Letter of Credit,
whichever is earlier),
(vi) state the purpose and circumstances for which such Letter
of Credit is
being issued, (vii) specify the terms upon which each such
Letter of Credit may
be drawn down (which terms shall not leave any discretion to
Fronting Bank),
(viii) if such Letter of Credit is to be issued on behalf of a
Subsidiary of
such Borrower, the identity of such Subsidiary; (ix) if such
Letter of Credit is
to be secured, identify the Secured Property to be acquired and
the collateral
to be granted, (x) such information as is requested in Schedule
2.2(a) hereto
relating to the project, if any, for which the Letter of Credit
will be used and
(xi) certify that no Guarantor Default or Guarantor Event of
Default has
occurred and is continuing and, with respect to such Borrower,
that no Borrower
Default or Borrower Event of Default has occurred and is
continuing. Each such
notice may be revoked telephonically by such Borrower to the
Fronting Bank and
the Administrative Agent any time prior to the issuance of the
Letter of Credit
by the Fronting Bank, provided such revocation is confirmed in
writing by such
Borrower to the Fronting Bank and the Administrative
33
<PAGE>
Agent within two (2) Business Days by facsimile. Notwithstanding
anything
contained herein to the contrary, such Borrower shall complete
and deliver to
the Fronting Bank any required documentation in connection with
any requested
Letter of Credit no later than the third (3rd) Business Day
prior to the date of
issuance thereof (including, without limitation, a Note (if not
previously
delivered hereunder)). No later than 1:00 P.M. (New York time)
on the date that
is four (4) Business Days prior to, but excluding, the date of
issuance, such
Borrower shall specify a precise description of the documents
and the verbatim
text of any certificate to be presented by the beneficiary of
such Letter of
Credit, which if presented by such beneficiary prior to the
expiration date of
the Letter of Credit would require the Fronting Bank to make a
payment under the
Letter of Credit; provided, that Fronting Bank may, in its
reasonable judgment,
require changes in any such documents and certificates only in
conformity with
changes in customary and commercially reasonable practice or law
and, provided
further, that no Letter of Credit shall require payment against
a conforming
draft to be made thereunder on the third (3rd) Business Day
following the date
that such draft is presented if such presentation is made later
than 1:00 P.M.
New York time, as applicable) (except that if the beneficiary of
any Letter of
Credit requests at the time of the issuance of its Letter of
Credit that payment
be made on the same Business Day) against a conforming draft,
such beneficiary
shall be entitled to such a same day draw, provided such draft
is presented to
the Fronting Bank no later than 1:00 P.M. (New York time) and
provided further
such Borrower shall have requested to the Fronting Bank and the
Administrative
Agent that such beneficiary shall be entitled to a same day
draw). In
determining whether to pay on such Letter of Credit, the
Fronting Bank shall be
responsible only to determine that the documents and
certificates required to be
delivered under the Letter of Credit have been delivered and
that they comply on
their face with the requirements of that Letter of Credit. All
Letters of Credit
may be presented for payment in Japan and, if required by the
beneficiary
thereunder, shall be paid in Japan.
SECTION 2.3. Intentionally Deleted.
SECTION 2.4. Intentionally Deleted.
SECTION 2.5. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing from any Borrower
in
accordance with Section 2.2 hereof, the Administrative Agent
shall, on the date
such Notice of Borrowing is received by the Administrative
Agent, notify each
Bank of the contents thereof and of such Bank's share of such
Borrowing, of the
interest rate determined pursuant thereto and the Interest
Period(s) (if
different from those requested by such Borrower) and such Notice
of Borrowing
shall not thereafter be revocable by such Borrower, unless such
Borrower shall
pay any applicable expenses pursuant to Section 2.15.
(b) Not later than 2:00 p.m. (New York time) on the date of
each
Committed Borrowing as indicated in the applicable Notice of
Borrowing, each
Bank
34
<PAGE>
shall (except as provided in subsection (d) of this Section)
make available its
share of such Committed Borrowing in Yen immediately available
in Tokyo, Japan,
to the Administrative Agent at its address referred to in
Section 9.1. If any
Borrower has requested the issuance of a Letter of Credit, no
later than 1:00
p.m. (New York time) on the date of such issuance as indicated
in the notice
delivered pursuant to Section 2.2(b), the Fronting Bank shall
issue such Letter
of Credit in the amount so requested and deliver the same to the
applicable
Borrower, with a copy thereof to the Administrative Agent.
Immediately upon the
issuance of each Letter of Credit by the Fronting Bank, the
Fronting Bank shall
be deemed to have sold and transferred to each other Bank, and
each such other
Bank shall be deemed, and hereby agrees, to have irrevocably and
unconditionally
purchased and received from the Fronting Bank, without recourse
or warranty, an
undivided interest and a participation in such Letter of Credit,
any drawing
thereunder, and its obligation to pay its Pro Rata Share with
respect thereto,
and any security therefor or guaranty pertaining thereto, in an
amount equal to
such Bank's ratable share thereof. Upon any change in any of the
Commitments in
accordance herewith, there shall be an automatic adjustment to
such
participations to reflect such changed shares. The Fronting Bank
shall have the
primary obligation to fund any and all draws made with respect
to such Letter of
Credit notwithstanding any failure of a participating Bank to
fund its ratable
share of any such draw. The Administrative Agent will instruct
the Fronting Bank
to make such Letter of Credit available to the applicable
Borrower, and the
Fronting Bank shall make such Letter of Credit available to the
applicable
Borrower, at its aforesaid address or at such address in Japan
as such Borrower
shall request on the date of the Borrowing.
(c) Unless the Administrative Agent shall have received notice
from
a Bank prior to the date of any Borrowing that such Bank will
not make available
to the Administrative Agent such Bank's share of such Borrowing,
the
Administrative Agent may assume that such Bank has made such
share available to
the Administrative Agent on the date of such Borrowing in
accordance with this
Section 2.5 and the Administrative Agent may, in reliance upon
such assumption,
but shall not be obligated to, make available to the applicable
Borrower on such
date a corresponding amount on behalf of such Bank. If and to
the extent that
such Bank shall not have so made such share available to the
Administrative
Agent, such Bank agrees to repay to the Administrative Agent
forthwith on demand
such corresponding amount together with interest thereon, for
each day from the
date such amount is made available to the applicable Borrower
until the date
such amount is repaid to the Administrative Agent, at the rate
of interest
applicable to such Borrowing hereunder. If such Bank shall repay
to the
Administrative Agent such corresponding amount, such amount so
repaid shall
constitute such Bank's Loan included in such Borrowing for
purposes of this
Agreement. If such Bank shall not pay to Administrative Agent
such corresponding
amount after reasonable attempts are made by Administrative
Agent to collect
such amounts from such Bank, the applicable Borrower agrees to
repay to
Administrative Agent forthwith on demand such corresponding
amounts together
with interest thereto, for each day from the date such amount is
made
35
<PAGE>
available to such Borrower until the date such amount is repaid
to
Administrative Agent, at the interest rate applicable thereto
one (1) Business
Day after demand. Nothing contained in this Section 2.5(d) shall
be deemed to
reduce the Commitment of any Bank or in any way affect the
rights of such
Borrower with respect to any defaulting Bank or Administrative
Agent. The
failure of any Bank to make available to the Administrative
Agent such Bank's
share of any Borrowing in accordance with Section 2.5(b) hereof
shall not
relieve any other Bank of its obligations to fund its
Commitment, in accordance
with the provisions hereof.
(d) Subject to the provisions hereof, the Administrative Agent
shall
make available each Borrowing to the applicable Borrower in Yen
immediately
available in accordance with, and on the date set forth in, the
applicable
Notice of Borrowing.
SECTION 2.6. Notes.
(a) The Loans of each Borrower shall be evidenced by a single
Note
made by the applicable Borrower payable to the order of the
Administrative
Agent, on behalf of the Banks for the account of their
respective Lending
Offices.
(b) Notwithstanding the provisions of Section 2.6(a) above,
each
Bank may, by notice to any Borrower and the Administrative
Agent, request that
its Loans to such Borrower be evidenced by a separate Note
payable to the order
of such Bank for the account of its Lending Office, in which
event the Note made
by such Borrower pursuant to Section 2.6(a) above shall not
include or evidence
the Loans made by such Bank to such Borrower. Each such Note
shall be in
substantially the form of Exhibit A-1 or Exhibit A-2, as
applicable, hereto with
appropriate modifications to reflect the fact that it evidences
solely Loans
made by the applicable Bank.
(c) Each Bank may, by notice to any Borrower and the
Administrative
Agent, request that its Loans of a particular type be evidenced
by a separate
Note in an amount equal to the aggregate unpaid principal amount
of such Loans.
Any additional costs incurred by the Administrative Agent, such
Borrower or the
Banks in connection with preparing such a Note shall be at the
sole cost and
expense of the Bank requesting such Note. In the event any Loans
evidenced by
such a Note are paid in full prior to the Maturity Date, any
such Bank shall
return such Note to the applicable Borrower. Each such Note
shall be in
substantially the form of Exhibit A-1 or Exhibit A-2, as
applicable, hereto with
appropriate modifications to reflect the fact that it evidences
solely Loans of
the relevant type. Upon the execution and delivery of any such
Note, any
existing Note payable to such Bank shall be returned, replaced
or modified
accordingly.
(d) Upon receipt of each Note pursuant to Section 3.1(a),
the
Administrative Agent shall forward a copy of such Note to each
Bank. The
Administrative Agent shall record the date, amount, type and
maturity of each
Loan made by
36
<PAGE>
each Bank and the date and amount of each payment of principal
made by each
Borrower, with respect thereto, and may, if the Administrative
Agent so elects
in connection with any transfer or enforcement of its Note,
endorse on the
appropriate schedule appropriate notations to evidence the
foregoing information
with respect to each such Loan then outstanding; provided that
the failure of
the Administrative Agent to make any such recordation or
endorsement shall not
affect the obligations of any Borrower hereunder or under the
Notes. The
Administrative Agent is hereby irrevocably authorized by each
Borrower so to
endorse its Note and to attach to and make a part of its Note a
continuation of
any such schedule as and when required.
(e) Upon receipt of each Bank's Note pursuant to Section 2.6(b)
or
(c) above, the Administrative Agent shall forward such Note to
such Bank. Each
Bank shall record the date, amount, type and maturity of each
Loan made by it
and the date and amount of each payment of principal made by the
applicable
Borrower, with respect thereto, and may, if such Bank so elects
in connection
with any transfer or enforcement of its Note, endorse on the
appropriate
schedule appropriate notations to evidence the foregoing
information with
respect to each such Loan then outstanding; provided that the
failure of any
Bank to make any such recordation or endorsement shall not
affect the
obligations of any Borrower hereunder or under the Notes. Each
Bank is hereby
irrevocably authorized by each Borrower so to endorse its Note
and to attach to
and make a part of its Note a continuation of any such schedule
as and when
required.
(f) The Committed Loans shall mature, and the principal
amount
thereof shall be due and payable, on the Maturity Date.
(g) There shall be no more than five (5) TIBOR Groups of
Loans
outstanding at any one time with respect to each Borrower.
SECTION 2.7. Method of Electing Interest Rates. (a) The
Loans
included in each Committed Borrowing shall bear interest
initially at the type
of rate specified by the applicable Borrower in the applicable
Notice of
Borrowing. Thereafter, each Borrower may from time to time elect
to change or
continue the type of interest rate borne by each Group of Loans
(subject in each
case to the provisions of Article VIII) made to such Borrower,
as follows:
(i) if such Loans are Base Rate Loans, the applicable
Borrower
may elect to convert all or any portion of such Loans to TIBOR
Loans as of any
Business Day;
(ii) if such Loans are TIBOR Loans, the applicable Borrower
may elect to convert all or any portion of such Loans to Base
Rate Loans and/or
elect to continue all or any portion of such Loans as TIBOR
Loans for an
additional Interest Period or additional Interest Periods, in
each case
effective on the last day of the then current Interest Period
applicable to such
Loans, or on such other
37
<PAGE>
date designated by the applicable Borrower in the Notice of
Interest Rate
Election provided such Borrower shall pay any losses pursuant to
Section 2.15.
Each such election shall be made by delivering a notice (a
"Notice of Interest
Rate Election") to the Administrative Agent at least four (4)
Business Days
prior to, but excluding, the effective date of the conversion or
continuation
selected in such notice. A Notice of Interest Rate Election may,
if it so
specifies, apply to only a portion of the aggregate principal
amount of the
relevant Group of Loans; provided that (i) such portion is
allocated ratably
among the Loans comprising such Group, (ii) the portion to which
such Notice
applies, and the remaining portion to which it does not apply,
are JPY30,000,000
or any larger multiple of JPY1,000,000, (iii) there shall be no
more than five
(5) TIBOR Groups of Loans with respect to each Borrower
outstanding at any time,
(iv) no Committed Loan may be continued as, or converted into, a
TIBOR Loan when
any Guarantor Event of Default has occurred and is continuing
or, with respect
to such Borrower delivering such Notice of Interest Rate
Election, a Borrower
Event of Default has occurred and is continuing, and (v) no
Interest Period
shall extend beyond the Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation
selected
in such notice is to be effective, which shall comply with the
applicable clause
of subsection (a) above;
(iii) if the Loans comprising such Group are to be
converted,
the new type of Loans and, if such new Loans are TIBOR Loans,
the duration of
the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as TIBOR Loans for an
additional Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest Rate
Election shall
comply with the provisions of the definition of Interest
Period.
(c) Upon receipt of a Notice of Interest Rate Election from
any
Borrower pursuant to subsection (a) above, the Administrative
Agent shall notify
each Bank the same day as it receives such Notice of Interest
Rate Election of
the contents thereof, the interest rates determined pursuant
thereto and the
Interest Periods (if different from those requested by such
Borrower) and such
notice shall not thereafter be revocable by such Borrower. If
the applicable
Borrower fails to deliver a timely Notice of Interest Rate
Election to the
Administrative Agent for any Group of TIBOR Loans, such Loans
shall be converted
into Base Rate Loans, and
38
<PAGE>
such Borrower shall be deemed to have made a Base Rate Borrowing
in the amount
of such Group of TIBOR Loans (for which such Borrower shall be
deemed to have
timely given a Notice of Borrowing pursuant to Section 2.2 and
all other
conditions to such Borrowing shall be deemed waived or
satisfied) and the
proceeds of such Borrowing shall be deemed to have been used to
repay such Group
of TIBOR Loans on the last day of the then current Interest
Period applicable
thereto.
SECTION 2.8. Interest Rates.
(a) Each Base Rate Loan shall bear interest on the
outstanding
principal amount thereof, for each day from the date such Loan
is made until the
date it is repaid or converted into a TIBOR Loan pursuant to
Section 2.7, at a
rate per annum equal to sum of the Base Rate plus the Applicable
Margin for Base
Rate Loans for such day.
(b) Each TIBOR Loan shall bear interest on the outstanding
principal
amount thereof, for each day during the Interest Period
applicable thereto, at a
rate per annum equal to the sum of the Applicable Margin for
TIBOR Loans plus
TIBOR for such day.
(c) In the event that, and for so long as, any Event of
Default
shall have occurred and be continuing, the outstanding principal
amount of the
Loans, and, to the extent permitted by applicable law, overdue
interest in
respect of all Loans, shall bear interest at the annual rate
equal to the sum of
the Base Rate and four percent (4%) (the "Default Rate");
provided, however,
with respect to any Borrower Event of Default, the Default Rate
shall apply only
to those Loans made to the defaulting Borrower.
(d) The Administrative Agent shall determine each interest
rate
applicable to the Loans hereunder. The Administrative Agent
shall give prompt
notice to the applicable Borrower and the Banks of each rate of
interest so
determined, and its determination thereof shall be conclusive in
the absence of
demonstrable error.
(e) Interest on all Loans bearing interest at the Base Rate
shall be
payable on the first Business Day of each calendar month.
Interest on all TIBOR
Loans shall be payable on the last Business Day of the
applicable Interest
Period, but no less frequently than every three months
determined on the basis
of the first (1st) day of the Interest Period applicable to the
Loan in
question.
SECTION 2.9. Fees.
(a) Facility Fee. For the period beginning on the date hereof
and
ending on the date the Obligations are paid in full and this
Agreement is
terminated (the "Facility Fee Period"), the Credit Parties shall
pay to the
Administrative Agent
39
<PAGE>
for the account of the Banks a facility fee on the aggregate
Commitments at the
Applicable Fee Percentage, provided that, with respect to the
Borrowers, such
obligation shall be divided ratably in proportion to such
Borrower's respective
Commitments and no Borrower shall be liable for an amount
greater than its
prorata share of such fees, provided, further, that the
Guarantors shall be
liable for full amount of such fees. The facility fee shall be
payable in
arrears on each January 1, April 1, July 1 and October 1 during
the Facility Fee
Period. The Facility Fee shall be payable in Yen.
(b) Letter of Credit Fee. During the Term, each Borrower shall
pay
to the Administrative Agent, for the account of the Banks in
proportion to their
interests in respect of undrawn Letters of Credit issued for the
account of such
Borrower, a fee (a "Letter of Credit Fee") in an amount,
provided that no
Guarantor Event of Default shall have occurred and be continuing
and no Borrower
Event of Default shall have occurred and be continuing with
respect to such
Borrower, equal to a rate per annum equal to the then percentage
per annum of
the Applicable Margin with respect to TIBOR Loans, on the daily
average of such
issued and undrawn Letters of Credit, which fee shall be
payable, in arrears, on
each January 1, April 1, July 1 and October 1 during the Term.
From the
occurrence, and during the continuance, of a Guarantor Event of
Default or a
Borrower Event of Default with respect to such Borrower, such
fee shall be
increased to be equal to four percent (4%) per annum on the
daily average of
such issued and undrawn Letters of Credit. The Letter of Credit
Fee shall be
payable in Yen.
(c) Fronting Bank Fee. Each Borrower shall pay any Fronting
Bank,
for its own account, a fee (a "Fronting Bank Fee") (i) at a rate
per annum equal
.125% of the undrawn amount of such Letter of Credit issued by
such Fronting
Bank for the account of such Borrower (the "Annual Fronting Bank
Fee") plus (ii)
JPY25,000, (the "Administrative Fee") which Fronting Bank Fee
shall be in
addition to and not in lieu of, the Letter of Credit Fee. The
Annual Fronting
Bank Fee shall be payable in arrears on each January 1, April 1,
July 1 and
October 1 during the Term in Yen. The Administrative Fee shall
be payable upon
the issuance of each Letter of Credit and shall be payable in
Yen.
(d) Extension Fee. If AMB LP elects to extend the term of the
Loan
in accordance with Section 2.10(b), AMB LP shall pay to the
Administrative
Agent, for the account of the Banks in proportion to their
interests, a fee (a
"Extension Fee") in an amount equal to 0.25% of the aggregate
Commitments. The
Extension Fee shall be paid by AMB LP on or before the Extension
Date in Yen.
(e) Fees Non-Refundable. All fees set forth in this Section
2.9
shall be deemed to have been earned on the date payment is due
in accordance
with the provisions hereof and shall be non-refundable. The
obligation of any
Credit Party to pay such fees in accordance with the provisions
hereof shall be
binding upon
40
<PAGE>
the such Credit Party and shall inure to the benefit of the
Administrative Agent
and the Banks regardless of whether any Loans are actually
made.
SECTION 2.10. Maturity Date.
(a) The term (the "Term") of the Commitments (and each
Bank's
obligations to make Loans and to participate in Letters of
Credit hereunder)
shall terminate and expire, and each Borrower shall return or
cause to be
returned all Letters of Credit issued for the account of such
Borrower to the
Fronting Bank on the Maturity Date. Upon the date of the
termination of the
Term, any Loans then outstanding (together with accrued interest
thereon and all
other Obligations) shall be due and payable on such date.
(b) Notwithstanding the foregoing, AMB LP may extend the
Maturity
Date for a period of one (1) year upon the following terms and
conditions: (i)
delivery by AMB LP of a written notice to the Administrative
Agent (the
"Extension Notice") on or before a date that is not more than
twelve and one
half (12 1/2) months nor less than one (1) month prior to the
Maturity Date,
which Extension Notice the Administrative Agent shall promptly
deliver to the
Banks; (ii) no Event of Default shall have occurred and be
continuing both on
the date AMB LP delivers the Extension Notice and on the
original Maturity Date
(the "Extension Date"), (iii) AMB LP shall maintain an
Investment Grade Rating
from both S&P and Moody's, and (iv) AMB LP shall pay the
Extension Fee to
Administrative Agent on or before the Extension Date. AMB LP's
delivery of the
Extension Notice shall be irrevocable.
SECTION 2.11. Optional Prepayments.
(a) Each Borrower may, upon at least two (2) Business Days'
notice
to the Administrative Agent, prepay any Base Rate Loans made to
such Borrower,
in whole or in part at any time, or from time to time in part in
amounts
aggregating for all Base Rate Loans of such Borrower being
prepaid at the same
time JPY1,000,000 or more, by paying the principal amount to be
prepaid together
with accrued interest thereon to the date of prepayment. Each
such optional
prepayment shall be applied to prepay ratably the Loans of the
several Banks
included in such Group or Borrowing.
(b) Each Borrower may, upon at least five (5) Business Days'
notice
to the Administrative Agent, pay all or any portion of any TIBOR
Loan made to
such Borrower as of the last day of the Interest Period
applicable thereto in
amounts aggregating for all TIBOR Loans of such Borrower being
prepaid at the
same time JPY100,000,000 or more. Except as provided in Article
8 and except
with respect to any TIBOR Loan which has been converted to a
Base Rate Loan
pursuant to Section 8.2, 8.3 or 8.4 hereof, a Borrower may not
prepay all or any
portion of the principal amount of any TIBOR Loan made to such
Borrower prior to
the end of the Interest Period applicable thereto unless such
Borrower shall
also pay any applicable
41
<PAGE>
expenses pursuant to Section 2.15. Each such optional prepayment
shall be in the
amounts set forth in Section 2.11(a) above and shall be applied
to prepay
ratably the Loans of the Banks included in any Group of TIBOR
Loans, except that
any TIBOR Loan which has been converted to a Base Rate Loan
pursuant to Section
8.2, 8.3 or 8.4 hereof may be prepaid without ratable payment of
the other Loans
in such Group of Loans which have not been so converted.
(c) Each Borrower may, upon at least five (5) Business Days'
notice
to the Administrative Agent (by 1:00 P.M. New York time),
reimburse the
Administrative Agent for the benefit of the Fronting Bank for
the amount of any
drawing under a Letter of Credit issued for the account of such
Borrower in
whole or in part in any amount.
(d) Any Borrower may at any time return any undrawn Letter of
Credit
issued for the account of such Borrower to the Fronting Bank in
whole, but not
in part, and the Fronting Bank within a reasonable period of
time shall give the
Administrative Agent and each of the Banks notice of such
return.
(e) AMB LP may at any time and from time to time cancel all or
any
part of the Commitments by the delivery to the Administrative
Agent of a notice
of cancellation within the applicable time periods set forth in
Sections 2.11(a)
and (b) if there are Loans then outstanding or, if there are no
Loans
outstanding at such time as to which the Commitments with
respect thereto are
being canceled, upon at least five (5) Business Days' notice to
the
Administrative Agent, whereupon, in either event, all or such
portion of the
Commitments, as applicable, shall terminate as to the applicable
Banks, pro rata
on the date set forth in such notice of cancellation, and, if
there are any
Loans then outstanding, the applicable Borrowers shall prepay
all or such
portion of Loans outstanding on such date in accordance with the
requirements of
Section 2.11(a) and (b). In no event shall AMB LP be permitted
to cancel
Commitments for which a Letter of Credit has been issued and is
outstanding
unless the applicable Borrower for whose account such Letter of
Credit was
issued returns (or causes to be returned) such Letter of Credit
to the Fronting
Bank. AMB LP shall be permitted to designate in its notice of
cancellation which
Loans, if any, are to be prepaid.
(f) Any amounts so prepaid pursuant to Section 2.11(a) or (b)
may be
reborrowed. In the event AMB LP elects to cancel all or any
portion of the
Commitments pursuant to Section 2.11(e) hereof, such amounts may
not be
reborrowed.
SECTION 2.12. Mandatory Prepayments. If a Borrower disposes of
a
real estate asset (or a beneficial interest therein) to a third
party on an
arm's length basis (excluding any disposition to an Affiliate of
AMB LP,
provided that such real estate asset continues to be managed by
a AMB LP or a
Subsidiary of AMB LP), such Qualified Borrower shall within
three (3) Business
Days of the settlement date
42
<PAGE>
of such disposal prepay to the Administrative Agent all Loans
owed by it with
respect to the real estate asset or beneficial interest so
disposed together
with accrued interest on such amount.
SECTION 2.13. Secured Option.
(a) Each Borrower shall have the option, exercisable upon not
less
than thirty (30) days notice to the Administrative Agent to
cause any one or
more of the Loans to be made to such Borrower to be secured by
the Secured
Property or a pledge of the equity interests of such Borrower as
designated in
such notice (such option being the "Secured Option"). In the
event any Borrower
elects the Secured Option with respect to any Committed Loan
after such date,
such Committed Loans shall be secured by:
(i) At such Borrower's option, either (A) a first priority
mortgage (ne teito ken) on all real estate assets purchased with
the proceeds of
the Loan (the "Secured Property") substantially in the form of
Exhibit C or
otherwise reasonably acceptable to the Administrative Agent (a
"Mortgage") or
(B) if such Secured Property is intrusted, a first priority
pledge (ne shichi)
on such trust beneficial interests substantially in the form of
Exhibit D or
otherwise reasonably acceptable to Administrative Agent (a "TBI
Pledge") or (C)
first priority pledge (ne shichi) of all the preferred or common
shares of the
entity which owns the Secured Property substantially in the form
of Exhibit E or
otherwise reasonably acceptable to the Administrative Agent (a
"Share Pledge").
In each case, the Mortgage, TBI Pledge or Share Pledge, as the
case may be, and
such other documents and filings reasonably necessary to perfect
and evidence
the Banks' first priority security interest are referred to as
the "Security
Documents" and such security is referred to as the "Collateral";
and
(ii) a ratification and reaffirmation by the Guarantors of
their obligations under the Guaranty (the "Ratification").
(b) Each Borrower shall have the option, upon ten (10) Business
Days
prior written notice to Administrative Agent, to substitute the
type of Security
Document securing Collateral (i.e., a Mortgage or a TBI Pledge
on a Secured
Property can be substituted with a Share Pledge on the preferred
or common stock
or membership interests of such Borrower; a Share Pledge can be
substituted with
a Mortgage or TBI Pledge on the Secured Property; a Share Pledge
on common stock
can be substituted with a Share Pledge on preferred stock; and a
Mortgage can be
substituted with a TBI Pledge in the event the Secured Property
is intrusted and
a TBI Pledge can be substituted with a Mortgage in the event the
Secured
Property is to be removed from the trust), provided (I) such
Borrower satisfies
all the conditions to the original Borrowing as set forth in
Section 2.13(a),
(ii) such Borrower pays all of Administrative Agent's reasonable
out-of-pocket
expenses in connection with such
43
<PAGE>
substitution and release and (iii) such Borrower causes the
Guarantors to
deliver a Ratification.
(c) Each Borrower shall have the option, upon five (5) Business
Days
prior notice to Administrative Agent, to obtain a release of
Collateral securing
a Loan provided that (i) such Borrower prepays the Loan secured
thereby, (ii)
such Borrower pays all of Administrative Agent's reasonable
out-of-pocket
expenses in connection with such release and (iii) such Borrower
causes the
Guarantors to deliver a Ratification.
(d) Upon ten (10) Business Days notice to Administrative
Agent,
another Borrower (the "Assuming Borrower") may assume a Loan
made to a Borrower
provided that, upon the assumption by such Assuming Borrower of
such Loan, (i)
the Assuming Borrower delivers Collateral of the type selected
by the Assuming
Borrower under Section 2.13(a), (ii) the Assuming Borrower
satisfies all the
conditions to the original Borrowing as set forth in Section
3.2, (iii) the
Assuming Borrower pays all of Administrative Agent's reasonable
out-of-pocket
expenses in connection with such release and (iii) the Assuming
Borrower causes
the Guarantors to deliver a Ratification. The release of the
original Borrower
and such original Collateral shall occur simultaneously with the
assumption of
the Loan by the Assuming Borrower and the substitution of the
Collateral. In no
event shall the Administrative Agent release any such Collateral
unless and
until substitute Collateral has been obtained, to the
satisfaction of the
Administrative Agent.
(e) If the type of Collateral selected by a Borrower under
Section
2.13(a) is a Mortgage, the applicable Borrower shall
provisionally register a
Mortgage in favor of the Banks upon the grant thereof. Upon the
occurrence and
during the continuance of a Guarantor Event of Default or a
Borrower Event of
Default with respect to such Borrower, such Borrower shall
permanently register
or cause to be permanently registered, the Mortgage within two
(2) Business Days
of the Administrative Agent's request therefor. Concurrently
with the
provisional registration of the Mortgage, such Borrower shall
deliver to the
Administration Agent the following ("Mortgage Perfection
Documents"): (i)
undated powers of attorney of such Borrower necessary to permit
the
Administrative Agent and the Banks to effectively permanently
register the
Mortgage; (ii) a recent certificate of registered seal for the
applicable
Borrower, to be updated to the extent any changes are made with
respect to such
certificate and not less than once each quarter; (iii) a recent
commercial
registry of the applicable Borrower, to be updated not less than
once each
fiscal quarter (or as otherwise may be reasonably requested by
the
Administrative Agent as required to perfect the Banks' security
interest in the
Mortgage); (iv) the document certifying the completion of
registration
concerning the right of the applicable Borrower (tokizumisho)
provided under
Article 35.1.3 of the Immovables Registration Law (fudosan toki
hou) (Law No. 24
of 1899, as amended) (or two (2) undated guarantee certificates
(hoshosho) as
provided under Article 44 of the Immovables Registration Law
(fudosan toki hou)
(Law No. 24 of 1899, as amended)), if applicable,
44
<PAGE>
and (iv) any other documents necessary for the Banks to perfect
their security
interest in the Mortgage, executed by the applicable Borrower
and updated to the
extent necessary or as otherwise reasonably requested by the
Administrative
Agent as required to perfect such security interest.
Administrative Agent shall
be authorized without necessity of further authorization from
such Borrower to
permanently register any and all Mortgages in favor of the Banks
at any time
after the occurrence and during the continuance of a Guarantor
Event of Default
or a Borrower Event of Default with respect to such Borrower.
The applicable
Borrower shall bear and promptly reimburse the Administrative
Agent and the
Banks for all reasonable out-of-pocket costs and expenses
incurred in connection
with the provisional or permanent registration of Mortgages.
SECTION 2.14. General Provisions as to Payments.
(a) Each Borrower shall make each payment of the principal of
and
interest on its Loans and fees hereunder, by initiating a wire
transfer not
later than 1:00 P.M. (New York time) on the date when due in Yen
immediately
available in Tokyo, Japan to the Administrative Agent at its
address referred to
in Section 9.1, and each Borrower shall deliver to
Administrative Agent evidence
of such wire as soon as possible thereafter on the date when
due. The
Administrative Agent will promptly (and in any event within one
(1) Business Day
after receipt thereof) distribute to each Bank its ratable share
of each such
payment received by the Administrative Agent for the account of
the Banks. If
and to the extent that the Administrative Agent shall receive
any such payment
for the account of the Banks on or before 11:00 A.M. (New York
time) on any
Business Day, and Administrative Agent shall not have
distributed to any Bank
its applicable share of such payment on such day, Administrative
Agent shall
distribute such amount to such Bank together with interest
thereon, for each day
from the date such amount should have been distributed to such
Bank until the
date Administrative Agent distributes such amount to such Bank,
at the Prime
Rate. Whenever any payment of principal of, or interest on the
Committed Loans
or of fees shall be due on a day which is not a Business Day,
the date for
payment thereof shall be extended to the next succeeding
Business Day unless
such Business Day falls in another calendar month, in which case
the date for
payment thereof shall be the next preceding Business Day. If the
date for any
payment of principal is extended by operation of law or
otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice
from
the applicable Borrower prior to the date on which any payment
is due to the
Banks hereunder that such Borrower will not make such payment in
full, the
Administrative Agent may assume that such Borrower has made such
payment in full
to the Administrative Agent on such date and the Administrative
Agent may, in
reliance upon such assumption, cause to be distributed to each
Bank on such due
date an amount equal to the amount then due such Bank. If and to
the extent that
such Borrower shall not have so made such payment, each Bank
shall repay to the
45
<PAGE>
Administrative Agent forthwith on demand such amount distributed
to such Bank
together with interest thereon, for each day from the date such
amount is
distributed to such Bank until the date such Bank repays such
amount to the
Administrative Agent, at the Prime Rate.
SECTION 2.15. Funding Losses. If any Borrower makes any payment
of
principal with respect to any TIBOR Loan on any day other than
the last day of
the Interest Period applicable thereto, or if any Borrower fails
to borrow any
TIBOR Loans after notice has been given to any Bank in
accordance with Section
2.5(a) or if any Borrower shall deliver a Notice of Interest
Rate Election
specifying that a TIBOR Loan shall be converted on a date other
than the first
(1st) day of the then current Interest Period applicable
thereto, such Borrower
shall reimburse each Bank within 15 days after certification of
such Bank of
such loss or expense (which shall be delivered by each such Bank
to
Administrative Agent for delivery to such Borrower) for any
resulting loss or
expense incurred by it (or by an existing Participant in the
related Loan),
including, without limitation, any loss incurred in obtaining,
liquidating or
employing deposits from third parties, but excluding loss of
margin for the
period after any such payment or failure to borrow, provided
that such Bank
shall have delivered to Administrative Agent and Administrative
Agent shall have
delivered to such Borrower a certification as to the amount of
such loss or
expense, which certification shall set forth in reasonable
detail the basis for
and calculation of such loss or expense and shall be conclusive
in the absence
of demonstrable error.
SECTION 2.16. Computation of Interest and Fees. Interest based
on
the Prime Rate shall be computed on the basis of a year of 365
days (or 366 days
in a leap year) and paid for the actual number of days elapsed
(including the
first day but excluding the last day). All other interest and
fees shall be
computed on the basis of a year of 360 days and paid for the
actual number of
days elapsed (including the first day but excluding the last
day).
SECTION 2.17. Use of Proceeds. Each Borrower shall use the
proceeds
of the Loans (i) to fund the acquisition and development of
properties, or the
acquisition of beneficial interests in properties, in Japan by
such Borrower and
(ii) for other real estate purposes in Japan, provided in no
event shall any
Borrower further lend the proceeds of any Loan to any unrelated
third party.
SECTION 2.18. Letters of Credit.
(a) Subject to the terms contained in this Agreement and the
other
Loan Documents, upon the receipt of a notice in accordance with
Section 2.2(b)
requesting the issuance of a Letter of Credit, the Fronting Bank
shall issue a
Letter of Credit or Letters of Credit in such form as is
reasonably acceptable
to the applicable Borrower (subject to the provisions of Section
2.2(b)) in an
amount or
46
<PAGE>
amounts equal to the amount or amounts requested by such
Borrower; provided that
the Fronting Bank shall issue the same only in Yen.
(b) Each Letter of Credit shall be iss
| 
