<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
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TABLE OF CONTENTS
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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
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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
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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
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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.
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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
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Range of
AMB LP's
Credit Rating
Applicable
(S&P/Moody's
Fee Percentage
Ratings)
(% per annum)
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Non-Investment Grade
0.35
BBB-/Baa3
0.25
BBB/Baa2
0.20
BBB+/Baa1
0.20
A-/A3 or better
0.15
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"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
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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.
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Range of
Applicable
Applicable
AMB LP's
Margin for
Margin for
Credit Rating
Base Rate
TIBOR Loans
Ratings)
(% per annum)
(% per annum)
---------------------
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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
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"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
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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
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<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
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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.
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<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.
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<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).
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<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.
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<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.
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<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.
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<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
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<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.
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"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.
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<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,
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<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
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<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
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<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
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<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
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<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
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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
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<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
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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
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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
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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
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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,
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<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
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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
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<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 issued in the minimum amount
of
JPY10,000,000 or such lesser amou
