EXHIBIT 10.1
_________________________________________________________
_________________________________________________________
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated as of November 8, 1999
among
KILROY REALTY, L.P.
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Bank and as Administrative Agent for the Banks,
THE CHASE MANHATTAN BANK,
as Bank and as Documentation Agent,
J.P. MORGAN SECURITIES INC.,
as Syndication Agent, Lead Arranger and
Joint Bookmanager
CHASE SECURITIES INC.,
as Lead Arranger and Joint Bookmanager,
BANK ONE, N.A., PNC BANK, NATIONAL ASSOCIATION,
FIRST UNION BANK AND COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK AND GRAND CAYMAN BRANCHES,
each, as Managing Agent,
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
THE BANK OF NOVA SCOTIA, KEYBANK NATIONAL ASSOCIATION
and UNION BANK OF CALIFORNIA, each, as Co-Agent,
and
THE BANKS LISTED HEREIN
_________________________________________________________
_________________________________________________________
TABLE OF CONTENTS
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Page
ARTICLE I DEFINITIONS.......................................................... 3
Section 1.1. Definitions............................................................. 3
Section 1.2. Accounting Terms and Determinations.....................................32
Section 1.3. Types of Borrowings.....................................................32
ARTICLE II THE CREDITS.........................................................33
Section 2.1. Commitments to Lend.....................................................33
Section 2.2. Notice of Committed Borrowing...........................................33
Section 2.3. Money Market Borrowings.................................................36
Section 2.4. Notice to Banks; Funding of Loans.......................................41
Section 2.5. Notes...................................................................43
Section 2.6. Maturity of Loans.......................................................44
Section 2.7. Interest Rates..........................................................44
Section 2.8. Fees....................................................................46
Section 2.9. Mandatory Termination...................................................48
Section 2.10. Mandatory Prepayment....................................................48
Section 2.11. Optional Prepayments....................................................50
Section 2.12. General Provisions as to Payments.......................................52
Section 2.13. Funding Losses..........................................................53
Section 2.14. Computation of Interest and Fees........................................53
Section 2.15. Method of Electing Interest Rates.......................................54
Section 2.16. Letters of Credit.......................................................55
Section 2.17. Letter of Credit Usage Absolute.........................................59
ARTICLE III CONDITIONS.........................................................61
Section 3.1. Closing.................................................................61
Section 3.2. Borrowings..............................................................63
Section 3.3. New Acquisitions and Additional Real Property Assets....................64
ARTICLE IV REPRESENTATIONS AND WARRANTIES......................................66
Section 4.1. Existence and Power.....................................................66
Section 4.2. Power and Authority.....................................................66
Section 4.3. No Violation............................................................67
Section 4.4. Financial Information...................................................67
Section 4.5. Litigation..............................................................68
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Section 4.6. Compliance with ERISA...................................................68
Section 4.7. Environmental Compliance................................................69
Section 4.8. Taxes...................................................................71
Section 4.9. Full Disclosure.........................................................71
Section 4.10. Solvency................................................................71
Section 4.11. Use of Proceeds; Margin Regulations.....................................71
Section 4.12. Governmental Approvals..................................................72
Section 4.13. Investment Company Act; Public Utility Holding Company Act..............72
Section 4.14. Closing Date Transactions...............................................72
Section 4.15. Representations and Warranties in Loan Documents........................72
Section 4.16. Patents, Trademarks, etc................................................72
Section 4.17. No Default..............................................................73
Section 4.18. Licenses, etc...........................................................73
Section 4.19. Compliance With Law.....................................................73
Section 4.20. No Burdensome Restrictions..............................................73
Section 4.21. Brokers' Fees...........................................................74
Section 4.22. Labor Matters...........................................................74
Section 4.23. Organizational Documents................................................74
Section 4.24. Principal Offices.......................................................74
Section 4.25. REIT Status.............................................................74
Section 4.26. Ownership of Property...................................................75
Section 4.27. Insurance...............................................................75
ARTICLE V AFFIRMATIVE AND NEGATIVE COVENANTS...................................75
Section 5.1. Information.............................................................75
Section 5.2. Payment of Obligations..................................................79
Section 5.3. Maintenance of Property; Insurance......................................79
Section 5.4. Conduct of Business.....................................................80
Section 5.5. Compliance with Laws....................................................80
Section 5.6. Inspection of Property, Books and Records...............................80
Section 5.7. Existence...............................................................81
Section 5.8. Financial Covenants.....................................................81
Section 5.9. Restriction on Fundamental
Changes; Operation and Control..........................................83
Section 5.10. Changes in Business.....................................................83
Section 5.11. Sale of Unencumbered Asset
Pool Properties.........................................................83
Section 5.12. Fiscal Year; Fiscal Quarter.............................................84
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Section 5.13. Margin Stock...........................................................84
Section 5.14. Development Activities.................................................84
Section 5.15. Interest Rate Protection...............................................84
Section 5.16. Joint Ventures.........................................................85
Section 5.17. Investments in Unimproved Real Property................................85
Section 5.18. Use of Proceeds........................................................85
Section 5.19. General Partner Status.................................................85
Section 5.20. Certain Requirements for the Unencumbered Asset Pool...................85
ARTICLE VI DEFAULTS...........................................................86
Section 6.1. Events of Default......................................................86
Section 6.2. Rights and Remedies....................................................90
Section 6.3. Notice of Default......................................................91
Section 6.4. Actions in Respect of Letters of Credit................................91
ARTICLE VII THE LEAD AGENT....................................................94
Section 7.1. Appointment and Authorization..........................................94
Section 7.2. Lead Agent and Affiliates..............................................94
Section 7.3. Action by Lead Agent...................................................94
Section 7.4. Consultation with Experts..............................................95
Section 7.5. Liability of Lead Agent................................................95
Section 7.6. Indemnification........................................................95
Section 7.7. Credit Decision........................................................96
Section 7.8. Successor Lead Agent...................................................96
Section 7.9. Lead Agent's Fee.......................................................97
Section 7.10. Copies of Notices......................................................97
ARTICLE VIII CHANGE IN CIRCUMSTANCES..........................................97
Section 8.1. Basis for Determining Interest Rate Inadequate or Unfair...............97
Section 8.2. Illegality.............................................................98
Section 8.3. Increased Cost and Reduced Return......................................99
Section 8.4. Taxes.................................................................101
Section 8.5. Base Rate Loans Substituted for Affected Euro-Dollar Loans............104
ARTICLE IX MISCELLANEOUS.....................................................104
Section 9.1. Notices................................................................104
Section 9.2. No Waivers.............................................................105
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Section 9.3. Expenses; Indemnification..............................................105
Section 9.4. Sharing of Set-Offs....................................................107
Section 9.5. Amendments and Waivers.................................................108
Section 9.6. Successors and Assigns.................................................109
Section 9.7. Governing Law; Submission to Jurisdiction..............................112
Section 9.8. Marshaling; Recapture..................................................113
Section 9.9. Counterparts; Integration; Effectiveness...............................113
Section 9.10. WAIVER OF JURY TRIAL...................................................114
Section 9.11. Survival...............................................................114
Section 9.12. Domicile of Loans......................................................114
Section 9.13. Limitation of Liability................................................114
Section 9.14. No Bankruptcy Proceedings..............................................114
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Exhibit A - Form of Note
Exhibit A-1 - Form of Note
Exhibit B - Unencumbered Asset Pool Properties (Fee Interests)
Exhibit C - Unencumbered Asset Pool Properties (Leasehold Interests)
Exhibit D - Form of Assignment and Assumption Agreement
Exhibit E - Form of Money Market Quote Request
Exhibit F - Form of Invitation for Money Market Quotes
Exhibit G - Form of Money Market Quote
Exhibit H - Form of Designation Agreement
Schedule 4.22 - Labor Matters
v
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of
November 8, 1999, among KILROY REALTY, L.P. (the "Borrower"), MORGAN GUARANTY
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TRUST COMPANY OF NEW YORK, as Bank and as Administrative Agent for the Banks
("Lead Agent"), THE CHASE MANHATTAN BANK, as Bank and as Documentation Agent,
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J.P. MORGAN SECURITIES INC., as Syndication Agent, Lead Arranger and Joint
Bookmanager, CHASE SECURITIES INC., as Lead Arranger and Joint Bookmanager, BANK
ONE, N.A., PNC BANK, NATIONAL ASSOCIATION, FIRST UNION BANK and COMMERZBANK
AKTIENGESELL-SCHAFT, NEW YORK AND GRAND CAYMAN BRANCHES, each, as Managing
Agent, DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, THE BANK OF NOVA
SCOTIA, KEYBANK NATIONAL ASSOCIATION and UNION BANK OF CALIFORNIA, each, as Co-
Agent and the BANKS listed on the signature pages hereof (the "Banks").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lead Agent and the Banks entered into a
Revolving Credit Agreement, dated as of February 24, 1998, which was amended and
restated in its entirety by that certain Amended and Restated Revolving Credit
Agreement, dated as of October 9, 1998 (the "Existing Credit Agreement"); and
-------------------------
WHEREAS, the parties hereto have agreed to amend and restate the terms
and conditions contained in the Existing Credit Agreement in their entirety as
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
I. The Existing Credit Agreement is hereby modified so that all of
the terms and conditions of the aforesaid Existing Credit Agreement shall be
restated in their entirety as set forth herein, and the Borrower agrees to
comply with and be subject to all of the terms, covenants and conditions of this
Agreement.
II. This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and assigns, and shall be
deemed to be effective as of the date hereof.
III. Any reference in the Notes, any other Loan Document or any other
document executed in connection with this Agreement to the Existing Credit
Agreement shall be deemed to refer to this Agreement.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section I.1. Definitions. The following terms, as used herein, have
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the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
---------------------
setting forth Money Market Absolute Rates pursuant to Section 2.3.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
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Section 2.7(b).
"Adjustment Date" shall mean the date that the Borrower receives an
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Investment Grade Rating for its unsecured senior long term indebtedness from at
least two (2) Rating Agencies, at least one (1) of which shall be either S&P or
Moody's.
2
"Administrative Questionnaire" means, with respect to each Bank, an
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administrative questionnaire in the form prepared by the Lead Agent and
submitted to the Lead Agent (with a copy to the Borrower) duly completed by such
Bank.
"Agreement" means this Second Amended and Restated Revolving Credit
---------
Agreement as the same may from time to time hereafter be modified, supplemented
or amended.
"Annual EBITDA" means, measured as of the last day of each calendar
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quarter, an amount derived from (i) total revenues relating to all Real Property
Assets of the Borrower, the General Partner and their Consolidated Subsidiaries
or to the Borrower's or the General Partner's interest in Minority Holdings for
the previous four consecutive calendar quarters including the quarter then
ended, on an accrual basis with adjustments for the straight-lining of rents,
plus (ii) interest and other income of the Borrower, the General Partner and
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their Consolidated Subsidiaries, including, without limitation, real estate
service revenues, for such period, less (iii) total operating expenses and other
----
expenses relating to such Real Property Assets and to the Borrower's and the
General Partner's interest in Minority Holdings for such period (other than
interest, taxes, depreciation, amortization, and other non-cash items), less
----
(iv) total corporate operating expenses (including general overhead expenses)
and other expenses of the Borrower, the General Partner, their Consolidated
Subsidiaries and the Borrower's and the General Partner's interest in Minority
Holdings (other than interest, taxes, depreciation, amortization and other non-
cash items), for such period.
"Applicable Interest Rate" means the lesser of (x) the rate at which
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the interest rate applicable to any floating rate Debt could be fixed, at the
time of calcu-
3
lation, by the Borrower entering into an unsecured interest rate swap agreement
(or, if such rate is incapable of being fixed by entering into an unsecured
interest rate swap agreement at the time of calculation, a reasonably determined
fixed rate equivalent), and (y) the rate at which the interest rate applicable
to such floating rate Debt is actually capped, at the time of calculation, if
the Borrower has entered into an interest rate cap agreement with respect
thereto or if the documentation for such Debt contains a cap.
"Applicable Lending Office" means, with respect to any Bank, (i) in
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the case of its Base Rate Loans, its Domestic Lending Office, (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office, and (iii) in the case
of its Money Market Loans, its Money Market Lending Office.
"Applicable Margin" means, prior to the Adjustment Date, with respect
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to each Euro-Dollar Loan, the respective percentages per annum determined, at
any time, based on the range into which the Total Debt Ratio then falls, in
accordance with the table set forth below:
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Total Debt Ratio Applicable Margin for Euro-
Dollar Loans (% per annum)
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less than 25% 1.125%
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equal to or greater than 25% 1.25%
but less than 35%
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equal to or greater than 35% 1.375%
but less than 45%
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equal to or greater than 45% 1.50%
but less than 50%
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equal to or greater than 50% 1.75%
but less than 55%
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4
From and after the Adjustment Date, the Applicable Margin with respect to each
Euro-Dollar Loan shall mean the respective percentages per annum determined, at
any time, based on the range into which the Borrower's Credit Rating (if any)
then falls, in accordance with the table set forth below. Any change in the
Borrower's Credit Rating shall be effective immediately as of the date on which
any of the Rating Agencies announces a change in the Borrower's Credit Rating or
the date on which the Borrower (or, as applicable, the General Partner) has no
credit rating, whichever is applicable. In the event that the Borrower (or, as
applicable, the General Partner) receives two (2) credit ratings that are not
equivalent, the Applicable Margin shall be determined by the lower of such two
(2) credit ratings. In the event that Borrower (or, as applicable, the General
Partner) receives more than two (2) credit ratings and such credit ratings are
not equivalent, the Applicable Margin shall be determined by the lower of the
two (2) highest ratings, provided that each of said two (2) highest ratings
shall be Investment Grade Ratings and at least one of which shall be an
Investment Grade Rating from S&P or Moody's.
5
- -----------------------------------------------------------------------------
Borrower's Credit Rating Applicable Margin for Euro-Dollar
(S&P/Moody's Ratings) Loans (% per annum)
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BBB+/Baa1 1.00%
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BBB/Baa2 (or better) 1.10%
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BBB-/Baa3 1.20%
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Less than Investment Grade Rating 1.675%
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"Assignee" has the meaning set forth in Section 9.6(c).
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"Bank" means each bank listed on the signature pages hereof, each
----
Assignee which becomes a Bank pursuant to Section 9.6(c), and their respective
successors and each Designated Lender; provided, however, that the term "Bank"
----
shall exclude each Designated Lender when used in reference to a Committed Loan,
the Commitments or terms relating to the Committed Loans and the Commitments and
shall further exclude each Designated Lender for all other purposes hereunder
except that any Designated Lender which funds a Money Market Loan shall, subject
to Section 9.6(d), have the rights (including the rights given to a Bank
contained in Section 9.3 and otherwise in Article 9) and obligations of a Bank
associated with holding such Money Market Loan.
"Bank Due Diligence Package" has the meaning provided in Section 3.3.
--------------------------
"Bankruptcy Code" means Title 11 of the United States Code, entitled
---------------
"Bankruptcy", as amended from time to time, and any successor statute or
statutes.
6
"Base Rate" means, for any day, a rate per annum equal to the higher
---------
of (i) the Prime Rate for such day and (ii) the sum of the Federal Funds Rate
plus .50%.
"Base Rate Borrowing" means a Borrowing comprised of Base Rate Loans.
-------------------
"Base Rate Loan" means a Committed Loan to be made by a Bank as a Base
--------------
Rate Loan in accordance with the applicable Notice of Borrowing or pursuant to
Article VIII.
"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 Kilroy Realty, L.P. and its successors.
--------
"Borrower's Credit Rating" means the rating assigned by the Rating
------------------------
Agencies to the General Partner's or the Borrower's senior unsecured long term
indebtedness.
"Borrowing" has the meaning set forth in Section 1.3.
---------
"Capital Expenditures" means, for any period, the sum of all
--------------------
expenditures (whether paid in cash or accrued as a liability) by the Borrower
which are capitalized on the consolidated balance sheet of the Borrower in
conformity with GAAP, but less (i) all expenditures made with respect to the
acquisition by the Borrower and its Consolidated Subsidiaries of any interest in
real property within nine months after the date such interest in real property
is acquired and (ii) capital expenditures made from the proceeds of insurance or
condemnation
7
awards (or payments in lieu thereof) or indemnity payments received during such
period by Borrower or any of its Consolidated Subsidiaries from third parties.
"Cash or Cash Equivalents" means (i) cash, (ii) direct obligations of
------------------------
the United States Government, including, without limitation, treasury bills,
notes and bonds, (iii) interest bearing or discounted obligations of Federal
agencies and Government sponsored entities or pools of such instruments offered
by banks rated AA or better by S&P or Aa2 by Moody's and dealers, including,
without limitation, Federal Home Loan Mortgage Corporation participation sale
certificates, Government National Mortgage Association modified pass-through
certificates, Federal National Mortgage Association bonds and notes, Federal
Farm Credit System securities, (iv) time deposits, domestic and Eurodollar
certificates of deposit, bankers acceptances, commercial paper rated at least A-
1 by S&P and P-1 by Moody's, and/or guaranteed by an Aa rating by Moody's, an AA
rating by S&P, or better rated credit, floating rate notes, other money market
instruments and letters of credit each issued by banks which have a long-term
debt rating of at least AA by S&P or Aa2 by Moody's, (v) obligations of domestic
corporations, including, without limitation, commercial paper, bonds,
debentures, and loan participations, each of which is rated at least AA by S&P,
and/or Aa2 by Moody's, and/or unconditionally guaranteed by an AA rating by S&P,
an Aa2 rating by Moody's, or better rated credit, (vi) obligations issued by
states and local governments or their agencies, rated at least MIG-1 by Moody's
and/or SP-1 by S&P and/or guaranteed by an irrevocable letter of credit of a
bank with a long-term debt rating of at least AA by S&P or Aa2 by Moody's, (vii)
repurchase agreements with major banks and primary government securities dealers
fully secured by U.S. Government or agency collateral equal to or exceeding the
principal amount on a daily basis and held in safekeeping, (viii) real estate
loan pool participations, guaranteed by an entity with an AA
8
rating given by S&P or an Aa2 rating given by Moody's, or better rated credit,
and (ix) shares of any mutual fund that has its assets primarily invested in the
types of investments referred to in clauses (i) through (v).
"Closing Date" means the date on which the Lead Agent shall have
------------
received the documents specified in or pursuant to Section 3.1.
"Commitment" means, with respect to each Bank, the amount committed by
----------
such Bank pursuant to this Agreement with respect to any Loans, as such amount
may be reduced from time to time pursuant to Sections 2.9 and 2.10.
"Committed Loan" means a Loan made by a Bank pursuant to Section 2.1;
--------------
provided that, if any such Loan or loans (or portions thereof) are combined or
- --------
subdivided pursuant to a Notice of Interest Rate Election, the term "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.
"Completion of Construction" means the issuance of a temporary or
--------------------------
permanent certificate of occupancy for the improvements under construction,
permitting the use and occupancy thereof for their regular intended uses.
"Consolidated Subsidiary" means at any date any Subsidiary or other
-----------------------
entity which is consolidated with the Borrower in accordance with GAAP.
"Consolidated Tangible Net Worth" means at any date the consolidated
-------------------------------
stockholders' equity of the Borrower (determined on a book basis), less its
consolidated Intangible Assets, all determined as of such date. For purposes of
this definition "Intangible Assets" means with respect to any such intangible
-----------------
assets, the amount (to the extent reflected in determining such consolidated
stockholders' equity) of (i) all write-ups subsequent to December 31, 1997 in
the book value of any asset owned by the Borrower or a Consolidated Subsidiary
and (ii) goodwill, patents, trademarks, service marks, trade names,
9
anticipated future benefit of tax loss carry forwards, copyrights, organization
or developmental expenses and other intangible assets.
"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 Debt, 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 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 the Borrower
required to be delivered pursuant to Section 4.4 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
10
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 the Borrower), the amount of the guaranty shall be deemed to be
100% thereof unless and only to the extent that such other Person has delivered
Cash or Cash Equivalents to secure all or any part of such Person's guaranteed
obligations, (ii) in the case of joint and several guarantees given by a Person
in whom the Borrower owns an interest (which guarantees are non-recourse to the
Borrower), to the extent the guarantees, in the aggregate, exceed 15% of total
real estate investments, the amount in excess of 15% shall be deemed to be a
Contingent Obligation of the Borrower, and (iii) in the case of a guaranty
(whether or not joint and several) of an obligation otherwise constituting Debt
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 Debt of such
Person. Notwithstanding anything contained herein to the contrary, "Contingent
Obligations" shall not be deemed to include guarantees of Unused Commitments or
of construction loans to the extent the same have not been drawn.
"Debt" of any Person (including Minority Holdings) means, without
----
duplication, (A) as shown on such Person's consolidated balance sheet (i) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or any asset and, (ii) all indebtedness of such Person
evidenced by a note, bond, debenture or similar instrument (whether or not
disbursed in full in the case of a construction loan), (B) the face amount of
all letters of credit issued for the account of such Person and, without
duplication, all unreimbursed amounts drawn thereunder, (C) all Contingent
Obligations of such Person, (D) all payment obligations of such Person under any
interest rate protection agreement
11
(including, without limitation, any interest rate swaps, caps, floors, collars
and similar agreements) or other hedging agreements and currency swaps and
foreign exchange contracts or similar agreements which were not entered into
specifically in connection with Debt set forth in clauses (A), (B) or (C)
hereof. For purposes of this Agreement, Debt (other than Contingent Obligations)
of the Borrower shall be deemed to include only the Borrower's pro rata share
(such share being based upon the Borrower's percentage ownership interest as
shown on the Borrower's annual audited financial statements) of the Debt of any
Person in which the Borrower, directly or indirectly, owns an interest, provided
that such Debt is nonrecourse, both directly and indirectly, to the Borrower.
"Default" means any condition or event which constitutes an Event of
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Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Designated Lender" means a special purpose corporation that (i) shall
-----------------
have become a party to this Agreement pursuant to Section 9.6(d), and (ii) is
not otherwise a Bank.
"Designated Lender Notes" means promissory notes of the Borrower,
-----------------------
substantially in the form of Exhibit A-1 hereto, evidencing the obligation of
the Borrower to repay Money Market Loans made by Designated Lenders, and
"Designated Lender Note" means any one of such promissory notes issued under
Section 9.6(d) hereof.
"Designating Lender" shall have the meaning set forth in Section
------------------
9.6(d) hereof.
"Designation Agreement" means a designation agreement in substantially
---------------------
the form of Exhibit H attached
12
hereto, entered into by a Bank and a Designated Lender and accepted by the Lead
Agent.
"Domestic Business Day" means any day except a Saturday, Sunday or
---------------------
other day on which commercial banks in New York City and Los Angeles are
authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office located
-----------------------
within the United States at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Domestic
Lending Office) or such other office within the United States as such Bank may
hereafter designate as its Domestic Lending Office by notice to the Borrower and
the Lead Agent; provided that no Bank shall be permitted to change its Domestic
Lending Office if as a result of such change either (i) pursuant to the
provisions of Section 8.1 or Section 8.2, Borrower would be unable to maintain
any Loans as Euro-Dollar Loans; or (ii) Borrower would be required to make any
payment to such Bank pursuant to the provisions of Section 8.3 or Section 8.4.
"Due Diligence Package" has the meaning provided in Section 3.3.
---------------------
"Duff & Phelps" means Duff & Phelps Credit Rating Co. or any
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successor thereto.
"Environmental Affiliate" means any partnership, or joint venture,
-----------------------
trust or corporation in which an equity interest is owned by the Borrower,
either directly or indirectly.
"Environmental Approvals" means any permit, license, approval, ruling,
-----------------------
variance, exemption or other authorization required under applicable
Environmental Laws.
13
"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 for investigatory costs, cleanup costs,
governmental response costs, natural resources damage, property damage, personal
injuries, fines or penalties arising out of, based on or resulting from (i) the
presence, or release into the environment, of any Material 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 as to which could reasonably be expected to have
a Material Adverse Effect.
"Environmental Laws" means any and all federal, state, local and
------------------
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, 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 pollutants, contaminants, Material of Environmental
Concern or hazardous wastes into the environment including, without limitation,
ambient air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Material of Environmental
Concern or hazardous wastes or the clean-up or other remediation thereof.
"Environmental Report" has the meaning set forth in Section 4.7.
--------------------
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, or any successor statute.
14
"ERISA Group" means the Borrower, any Subsidiary and all members of a
-----------
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Borrowing" has the meaning set forth in Section 1.3.
---------------------
"Euro-Dollar Business Day" means any Domestic Business Day on which
------------------------
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
--------------------------
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Bank as
it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Lead Agent; provided that no Bank shall be permitted to change
its Euro-Dollar Lending Office if as a result of such change either (i) pursuant
to the provisions of Section 8.1 or Section 8.2, Borrower would be unable to
maintain any Loans as Euro-Dollar Loans; or (ii) Borrower would be required make
any payment to such Bank pursuant to the provisions of Sections 8.3 or Section
8.4.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as a
----------------
Loan bearing interest at the Adjusted London Interbank Offered Rate in
accordance with the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
------------------------------
2.7(b).
15
"Event of Default" has the meaning set forth in Section 6.1.
----------------
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day; provided that (i) if such day is not a Domestic
--------
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Morgan on such day on such transactions
as determined by the Lead Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System as constituted from time to time.
"Financeable Ground Lease" means either (x) a ground lease reasonably
------------------------
satisfactory to the Required Banks, or (y) a ground lease which provides (i) for
a remaining term of not less than 25 years (including options and renewals) from
the date that such Real Property Asset shall become an Unencumbered Asset Pool
Property, (ii) that the ground lease will not be terminated until any leasehold
mortgagee shall have received notice of a default and has had a reasonable
opportunity to cure the same or complete foreclosure, and has failed to do so,
(iii) for a new lease on substantially the same terms to any leasehold mortgagee
recognized under such ground lease as tenant if the ground lease is terminated
for any reason, (iv) for non-merger of the fee and leasehold estates,
16
and (v) transferability of the tenant's interest under the ground lease, subject
only to the landlord's reasonable approval. Notwithstanding the foregoing, it is
hereby agreed that the ground lease with respect to the Real Property Asset
commonly known as "Kilroy Airport Center, Long Beach, California", shall be
deemed to be a "Financeable Ground Lease".
"FFO" means "funds from operations," defined to mean net income (or
---
loss) (computed in accordance with GAAP), excluding gains (or losses) from debt
restructurings and sales of properties, plus depreciation and amortization,
after adjustments for Minority Holdings. Adjustments for Minority Holdings will
be calculated to reflect FFO on the same basis as above.
"Fitch" means Fitch Investors Services, L.P. or any successor
-----
thereto.
"FMV Cap Rate" means 9%.
------------
"Fronting Bank" shall mean Morgan or such other Bank which Borrower is
-------------
notified by the Lead Agent may be a Fronting Bank and which is designated by
Borrower in its Notice of Borrowing as the Bank which shall issue a Letter of
Credit with respect to such Notice of Borrowing.
"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 Board or in such
other statements by such other entity as may be approved by a significant
segment of the accounting profession, which are applicable to the circumstances
as of the date of determination.
"General Partner" means Kilroy Realty Corporation, a Maryland
---------------
corporation.
17
"Governmental Authority" means any Federal, state or local government
----------------------
or any other political subdivision thereof or agency exercising executive,
legislative, judicial, regulatory or administrative functions having
jurisdiction over the Borrower or any Mortgaged Property.
"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 Euro-Dollar Loans having the same Interest Period at
such time; provided that, if a Loan of any particular Bank is converted to or
--------
made as a Base Rate Loan pursuant to Section 8.2 or 8.4, such Loan shall be
included in the same Group or Groups of Loans from time to time as it would have
been in if it had not been so converted or made.
"Guaranty" means the Second Amended and Restated Guaranty of Payment,
--------
dated as of even date herewith, made by the General Partner.
"Indemnitee" has the meaning set forth in Section 9.3(b).
----------
"Interest Period" means: (i) with respect to each Euro-Dollar
---------------
Borrowing, the period commencing on the date of such Committed Borrowing or of
any Notice of Interest Election with respect to such Committed Borrowing and
ending one, two, three or six months thereafter, as the Borrower may elect in
the applicable Notice of Committed Borrowing or Notice of Interest Election;
provided that:
- --------
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
18
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Euro-Dollar Business Day of a
calendar month.
(ii) with respect to each Base Rate Borrowing, the period commencing
on the date of such Committed Borrowing or Notice of Interest Rate Election and
ending 30 days thereafter; provided that any Interest Period which would
--------
otherwise end on a day which is not a Euro-Dollar Business Day shall be extended
to the next succeeding Euro-Dollar Business Day.
(iii) with respect to each Money Market LIBOR Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending one, two, three or six months thereafter, as the Borrower
may elect in the applicable Notice of Money Market Borrowing in accordance with
Section 2.3; provided that:
--------
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last Euro-
Dollar Business Day of a calendar month;
19
(c) if any Interest Period includes a date on which a payment of
principal of Loans is required to be made under Section 2.10 but does not
end on such date, then (i) the principal amount (if any) of each Money
Market LIBOR Loan required to be repaid on such date and (ii) the remainder
(if any) of each such Money Market LIBOR Loan shall have an Interest Period
determined as set forth above; and
(d) any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity Date.
(iv) with respect to each Money Market Absolute Rate Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 14 days)
as the Borrower may elect in accordance with Section 2.3; provided that:
--------
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) if any Interest Period includes a date on which a payment of
principal of Loans is required to be made under Section 2.10 but does not
end on such date, then (i) the principal amount (if any) of each Money
Market Absolute Rate Loan required to be repaid on such date and (ii) the
remainder (if any) of each such Money Market Absolute Rate Loan shall have
an Interest Period determined as set forth above; and
(c) any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity Date.
20
"Internal Revenue Code" means the Internal Revenue Code of 1986,
---------------------
as amended, or any successor statute.
"Investment Grade Rating" means a rating for a Person's senior long-
-----------------------
term unsecured debt, or if no such rating has been issued, a "shadow" rating, of
BBB- or better from S&P, and a rating or "shadow" rating of Baa3 or better from
Moody's or a rating or "shadow" rating equivalent to the foregoing from either
Duff & Phelps or Fitch. Any such "shadow" rating shall be evidenced by a letter
from the applicable Rating Agency or by such other evidence as may be reasonably
acceptable to the Lead Agent (as to any such other evidence, the Lead Agent
shall present the same to, and discuss the same with, the Banks).
"Lead Agent" means Morgan Guaranty Trust Company of New York in its
----------
capacity as Lead Agent for the Banks hereunder, and its successors in such
capacity.
"Letter(s) of Credit" has the meaning provided in Section 2.2(b).
-------------------
"Letter of Credit Collateral" has the meaning provided in Section
---------------------------
6.4.
"Letter of Credit Collateral Account" has the meaning provided in
-----------------------------------
Section 6.4.
"Letter of Credit Documents" has the meaning provided in Section
--------------------------
2.17.
"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
21
the Borrower's unpaid obligations under this Agreement in respect of the Letters
of Credit.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
-------------
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.3.
"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 that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, each of
the Borrower and any 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, a Euro-Dollar Loan or a Money Market
----
Loan and "Loans" means Base Rate Loans, Euro-Dollar Loans or Money Market Loans
-----
or any combination of the foregoing.
"Loan Amount" has the meaning set forth in Section 2.1(a).
-----------
"Loan Documents" means this Agreement, the Notes, the Guaranty, the
--------------
Letter(s) of Credit, the Letter of Credit Documents and any related documents.
"London Interbank Offered Rate" has the meaning set forth in
-----------------------------
Section 2.8(b).
"Margin Stock" shall have the meaning provided such term in
------------
Regulation U and Regulation G of the Federal Reserve Board.
22
"Material Adverse Effect" means a material adverse effect upon (i)
-----------------------
the business, operations, properties or assets of the Borrower or (ii) the
ability of the Borrower to perform its obligations hereunder in all material
respects, including to pay interest and principal.
"Material Lease" means, with respect to any Real Property Asset, any
--------------
lease, underletting, concession agreement or license affecting such Real
Property Asset, which represents more than 15% of the gross leasable area of
such Real Property Asset.
"Material of Environmental Concern" means and includes pollutants,
---------------------------------
contaminants, hazardous wastes, and toxic, radioactive, caustic or otherwise
hazardous substances, including petroleum, its derivatives, by-products and
other hydrocarbons, or any substance having any constituent elements displaying
any of the foregoing characteristics.
"Material Plan" means at any time a Plan having aggregate
-------------
Unfunded Liabilities in excess of $5,000,000.
"Maturity Date" has the meaning set forth in Section 2.9.
-------------
"Minority Holdings" means partnerships, limited liability companies
-----------------
and corporations held or owned by the Borrower which are not consolidated with
the Borrower on its financial statements.
"Money Market Absolute Rate" has the meaning set forth in Section
--------------------------
2.3(d)(ii)(4).
"Money Market Absolute Rate Loan" means a loan to be made by a
-------------------------------
Bank pursuant to an Absolute Rate Auction.
23
"Money Market Lending Office" means, as to each Bank, its Domestic
---------------------------
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Borrower
and the Lead Agent; provided that any Bank may from time to time by notice to
--------
the Borrower and the Lead Agent designate separate Money Market Lending Offices
for its Money Market LIBOR Loans, on the one hand, and its Money Market Absolute
Rate Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant
-----------------------
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 2.3).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
-----------------
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
-------------------
2.3(d)(ii)(3).
"Money Market Quote" means an offer by a Bank to make a Money Market
------------------
Loan in accordance with Section 2.3.
"Moody's" means Moody's Investors Service, Inc. or any successor
-------
thereto.
"Morgan" means Morgan Guaranty Trust Company of New York, in its
------
individual capacity.
"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
24
make contributions or has within the preceding five plan years made
contributions, including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period.
"Net Offering Proceeds" means all cash received by the Borrower or the
---------------------
General Partner as a result of the sale of common shares of beneficial interest,
preferred shares of beneficial interest (including perpetual preferred),
partnership interests, limited liability company interests, or other ownership
or equity interests in the Borrower or the General Partner (or evidence of
indebtedness of the Borrower or the General Partner convertible into any of the
foregoing) less customary costs and discounts of issuance paid by the Borrower
----
or the General Partner, as the case may be.
"Net Operating Cash Flow" means, with respect to any Real Property
-----------------------
Asset, the Property Income, calculated on an annualized basis, for the period
during which such Real Property Asset shall have been owned by the Borrower, the
General Partner or any of their Subsidiaries, less Property Expenses, calculated
on an estimated, pro forma (i.e., the results for the period during which such
Real Property Asset shall have been owned shall be annualized, with appropriate
adjustments for items of income and expense which are not earned or incurred in
equal monthly amounts) basis.
"New Acquisitions" shall mean any Real Property Asset acquired
----------------
after the date hereof.
"Non-Recourse Debt" means Debt of the Borrower or the General Partner
-----------------
on a consolidated basis for which the right of recovery of the obligee thereof
is limited to recourse against the Real Property Assets securing such Debt
(subject to such limited exceptions to the non-recourse nature of such Debt such
as fraud, misappropriation, misapplication and environmental indemni-
25
ties, as are usual and customary in like transactions at the time of the
incurrence of such Debt).
"Notes" means, collectively, the promissory notes of the Borrower,
-----
each substantially in the form of Exhibit A hereto, evidencing the obligation of
---------
the Borrower to repay the Loans, together with any Designated Lender Notes, and
"Note" means any one of such promissory notes issued hereunder.
----
"Notice of Borrowing" means a Notice of Committed Borrowing or a
-------------------
Notice of Money Market Borrowing.
"Notice of Committed Borrowing" has the meaning set forth in
-----------------------------
Section 2.2.
"Notice of Interest Election" has the meaning set forth in
---------------------------
Section 2.15(a).
"Notice of Money Market Borrowing" has the meaning set forth in
--------------------------------
Section 2.3(f).
"Obligations" means all obligations, liabilities and indebtedness of
-----------
every nature of the Borrower from time to time owing to any Bank under or in
connection with this Agreement or any other Loan Document, including, without
limitation, (i) the outstanding principal amount of the Committed Loans at such
time, plus (ii) the Letter of Credit Usage at such time, plus (iii) the
outstanding principal amount of any Money Market Loans at such time.
"Outstanding Balance" means the sum of (i) the aggregate outstanding
-------------------
and unpaid principal balance of all Loans and (ii) the Letter of Credit Usage.
"Parent" means, with respect to any Bank, any Person controlling
------
such Bank.
26
"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 Liens" means (a) Liens in favor of the Borrower or the
---------------
General Partner on all or any part of the assets of Subsidiaries of the Borrower
or the General Partner, as applicable, provided that (i) the Debt to which such
Lien relates is held by the Borrower, (ii) such Debt is not otherwise pledged or
encumbered, and (iii) no more than 5% of the Unencumbered Asset Pool Properties
Value may be subject to any such Liens; (b) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds, completion
bonds, government contracts or other obligations of a like nature, including
Liens in connection with workers' compensation, unemployment insurance and other
types of statutory obligations or to secure the performance of tenders, bids,
leases, contracts (other than for the repayment of Debt) and other similar
obligations incurred in the ordinary course of business; (c) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided, that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (d) Liens on property of the Borrower, the General Partner
or any Subsidiary thereof in favor of the Federal or any state government to
secure certain payments pursuant to any contract, statute or regulation; (e)
easements (including, without limitation, reciprocal easement agreements and
utility agreements), rights of way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not re-
27
corded), which do not interfere materially with the ordinary conduct of the
business of the Borrower, the General Partner or any Subsidiary thereof and
which do not materially detract from the value of the property to which they
attach or materially impair the use thereof by the Borrower, the General Partner
or any Subsidiary thereof; (f) statutory Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other Liens imposed by law and
arising in the ordinary course of business, for sums due and payable which are
not then past due (or which, if past due, are being contested in good faith and
with respect to which adequate reserves are being maintained to the extent
required by GAAP); (g) Liens not otherwise permitted by this definition and
incurred in the ordinary course of business of any or all of the Borrower, the
General Partner or any Subsidiary thereof with respect to obligations which do
not exceed $500,000 in principal amount in the aggregate at any one time
outstanding; and (h) the interests of lessees and lessors under leases of real
or personal property made in the ordinary course of business which would not
have a Material Adverse Effect.
"Person" means an individual, a corporation, a partnership, a limited
------
liability company, an association, a trust or any other entity or organization,
including 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 Internal Revenue 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
28
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by
----------
Morgan in New York City from time to time as its Prime Rate.
"Pro-Forma Debt Service" means, for any calendar quarter, the greater
----------------------
of (x) the interest actually payable on the Loans, and (y) the amount of debt
service payments determined by applying a 30-year mortgage style amortization
schedule to the Loans outstanding as of the last day of such calendar quarter,
using an interest rate equal to the Treasury Rate plus 1.75%.
"Property Expenses" means, when used with respect to any Real Property
-----------------
Asset, the costs of operating and maintaining such Real Property Asset which are
the responsibility of the owner thereof and that are not paid directly by the
tenant thereof, including, without limitation, taxes, insurance, repairs and
maintenance, but provided that if such tenant is more than 60 days in arrears in
the payment of base or fixed rent, then such costs will also constitute
"Property Expenses", but excluding depreciation, amortization and interest
costs.
"Property Income" means, when used with respect to any Real Property
---------------
Asset, cash rents and other cash revenues received in the ordinary course
therefrom, including, without limitation, revenues from any parking leases and
lease termination fees amortized over the remaining term of the lease for which
such termination fee was received (other than pre-paid rents and revenues and
security deposits except to the extent applied in satisfaction of tenants'
obligations for rent).
"Qualified Development Properties" means any Real Property Assets
--------------------------------
which are 100% owned in fee (or leasehold pursuant to a Financeable Ground
Lease) by the
29
Borrower, the General Partner or any of their Consolidated Subsidiaries and
which are not subject to any Lien (other than Permitted Liens), and which are
under construction and which, in accordance with GAAP, have not yet been placed
into service, provided, however, that if 66.67% or more of the net rentable area
of any Qualified Development Property has not been leased to tenants other than
tenants that are affiliates of the Borrower on or before the earlier to occur of
(x) the date which is six (6) months after the Completion of Construction
thereof, and (y) the eighteen month anniversary of the commencement of
construction thereof, then the same will cease to be a Qualified Development
Property.
"Qualified Leased Development Properties" means any Real Property
---------------------------------------
Assets which are 100% owned in fee (or leasehold pursuant to a Financeable
Ground Lease) by the Borrower, the General Partner or any of their Consolidated
Subsidiaries and which are not subject to any Lien (other than Permitted Liens),
and which are under construction and, in accordance with GAAP, have not yet been
placed into service, and of which, as of any date of determination, 66.67% or
more of the net rentable area of such Real Property Asset has been leased to
tenants other than tenants that are affiliates of the Borrower.
"Rating Agencies" means, collectively, S&P, Moody's, Duff &
---------------
Phelps and Fitch.
"Real Property Assets" means as of any time, the real property assets
--------------------
owned directly or indirectly by the Borrower at such time.
"Recourse Debt" shall mean Debt of the Borrower, the General Partner
-------------
or any Consolidated Subsidiary that is not Non-Recourse Debt.
30
"Reference Bank" means the principal London offices of Morgan.
--------------
"Regulation U" means Regulation U of the Board of Governors of the
------------
Federal Reserve System, as in effect from time to time.
"Release" means any release, spill, emission, leaking, pumping,
-------
pouring, dumping, emptying, deposit, discharge, leaching or migration.
"Required Banks" means, at any time, Banks having at least two-thirds
--------------
of the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing at least two-thirds of the aggregate
unpaid principal amount of the Loans.
"Requirements" means all present and future laws, statutes, codes,
------------
ordinances, orders, judgments, decrees, injunctions, rules, regulations and
requirements of every Governmental Authority having jurisdiction over any
Mortgaged Property and all restrictive covenants applicable to any Mortgaged
Property.
"Secured Debt" means all Debt secured by a Lien on real property.
------------
"Separate Parcel" means a Real Estate Asset that is a single, legally
---------------
subdivided, separately zoned parcel that can be legally transferred or conveyed
separate and distinct from any other Real Estate Asset without benefit of any
other Real Estate Asset.
"Solvent" means, with respect to any Person, that the fair saleable
-------
value of such Person's assets exceeds the Debts of such Person.
"Subsidiary" means any corporation or other entity of which securities
----------
or other ownership interests
31
representing either (i) ordinary voting power to elect a majority of the board
of directors or other persons performing similar functions or (ii) a majority of
the economic interest therein, are at the time directly or indirectly owned by
the Borrower.
"Term" has the meaning set forth in Section 2.9.
----
"Total Asset Value" means, the sum of (w) with respect to those Real
-----------------
Property Assets owned for at least the two previous consecutive quarters, the
quotient of (i) Annual EBITDA with respect thereto for the previous four (4)
consecutive quarters (or, if owned for only two or three quarters, the Annual
EBITDA for such period, annualized), including the quarter then ended, but less
reserves for Capital Expenditures of (A) $0.30 per square foot per annum for
each Real Property Asset that is an office property, and (B) $0.15 per square
foot per annum for each Real Property Asset that is an industrial property,
divided by (ii) the FMV Cap Rate, (x) with respect to those Real Property Assets
owned for less than the two previous consecutive quarters, the lesser of (i) the
quotient of Net Operating Cash Flow applicable to each such Real Property Asset,
calculated on an annualized basis, based upon (A) the actual amount of Net
Operating Cash Flow for the period of the Borrower's, the General Partner's or
their Subsidiary's ownership of such Real Property Asset, less replacement
reserves of (1) $.30 per square foot per annum for each such Unencumbered Asset
Pool Property which is an office building and (2) $.15 per square foot per annum
for each such Unencumbered Asset Pool Property which is an industrial building,
divided by (B) the FMV Cap Rate, and (ii) the purchase price actually paid by
the Borrower, the General Partner or any of their Subsidiaries (as applicable)
for such Real Property, (y) with respect to Qualified Development Properties,
40% of the book value thereof, and (z) Cash or Cash Equivalents of the Bor-
32
rower, the General Partner and their Subsidiaries as of the date of
determination.
"Total Debt Ratio" means the ratio, as of the date of determination,
----------------
of (i) the sum of (x) the Total Liabilities of the Borrower, the General Partner
and their Consolidated Subsidiaries and (y) the Borrower's and the General
Partner's pro rata share of the Total Liabilities of any Minority Holdings of
the Borrower or the General Partner to (ii) Total Asset Value.
"Total Debt Service" means, as of the last day of each calendar
------------------
quarter, an amount equal to the sum of (i) interest (whether accrued, paid or
capitalized) payable by Borrower on its Debt for the previous four consecutive
quarters including the quarter then ended, plus (ii) scheduled payments of
principal on such Debt, whether or not paid by the Borrower (excluding balloon
payments) for the previous four consecutive quarters including the quarter then
ended.
"Total Liabilities" means the sum of the balance sheet amount of all
-----------------
Debt of the Borrower, the General Partner and their Consolidated Subsidiaries
and all accounts payable and all other liabilities of such Person, all as
determined in accordance with GAAP.
"Treasury Rate" means, as of any date, a rate equal to the annual
-------------
yield to maturity on the U.S. Treasury Constant Maturity Series with a ten-year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
- -- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the Lead Agent
shall select, in its reasonable discretion, an alternate basis for the
determination of Treasury yield for U.S.
33
Treasury Constant Maturity Series with ten-year maturities.
"Unencumbered Asset Pool Net Operating Cash Flow" means, as of any
-----------------------------------------------
date of determination with respect to the Unencumbered Asset Pool Properties,
Property Income with respect to the Unencumbered Asset Pool Properties for the
previous four (4) consecutive quarters (except as provided below), including the
quarter then ended, but less (x) Property Expenses with respect to the
Unencumbered Asset Pool Properties for the previous four (4) consecutive
quarters (except as provided below), including the quarter then ended, and (y)
the greater of (i) Capital Expenditures which are not related to new
construction for the previous four (4) consecutive quarters, including the
quarter then ended, and (ii) reserves for Capital Expenditures of $.70 per
square foot per annum for each Unencumbered Asset Pool Property that is an
office property, and $.40 per square foot per annum for each Unencumbered Asset
Pool Property that is an industrial property. Notwithstanding the foregoing,
with respect to any Unencumbered Asset Pool Property owned by the Borrower, the
General Partner or any of their Consolidated Subsidiaries for a period of less
four (4) fiscal quarters, but more than one (1) fiscal quarter, Unencumbered
Asset Pool Net Operating Cash Flow shall be determined in a manner consistent
with the foregoing calculation utilizing annualized Property Income, Property
Expenses and Capital Expenditures (or, if greater, reserves for Capital
Expenditures) for the relevant period of the Borrower's, the General Partner's
or any of their Consolidated Subsidiaries' ownership of such Unencumbered Asset
Pool Property, provided such period shall be at least one fiscal quarter.
"Unencumbered Asset Pool Properties" means, as of any date, the Real
----------------------------------
Property Assets listed in Exhibit B attached hereto and made a part hereof, each
---------
of which
34
is 100% owned in fee (or leasehold pursuant to a Financeable Ground Lease in the
case of assets listed on Exhibit C as leaseholds) by the Borrower, the General
---------
Partner or any of their Consolidated Subsidiaries and each of which is not
subject to any Lien (other than Permitted Liens), subject to adjustment as set
forth herein, together with all Real Property Assets which have become part of
the Unencumbered Asset Pool Properties as of such date in accordance with
Section 3.3.
"Unencumbered Asset Pool Properties Value" means the sum of:
----------------------------------------
(i) with respect to the Unencumbered Asset Pool Properties
owned by the Borrower, the General Partner or any of their Consolidated
Subsidiaries for a period of at least six (6) calendar months, the quotient of
(x) the Unencumbered Asset Pool Net Operating Cash Flow less replacement
reserves of $.30 per square foot per annum for each such Unencumbered Asset Pool
Property which is an office building and $.15 per square foot per annum for each
such Unencumbered Asset Pool Property which is an industrial building, divided
by (y) the FMV Cap Rate, and
(ii) with respect to Unencumbered Asset Pool Properties
owned by the Borrower, the General Partner or any of their Consolidated
Subsidiaries for a period of less than six (6) calendar months, the lesser of
(A) the quotient of (x) the Unencumbered Asset Pool Net Operating Cash Flow on
an annualized basis based upon the Unencumbered Asset Pool Net Operating Cash
Flow for the period of such Person's ownership of the Unencumbered Asset Pool
Property in question less replacement reserves of $.30 per square foot per annum
for each such Unencumbered Asset Pool Property which is an office building and
$.15 per square foot per annum for each such Unencumbered Asset Pool Property
which is an industrial building, divided by (y) the FMV Cap Rate and (B)
35
the purchase price actually paid by the Borrower, the General Partner or any of
their Consolidated Subsidiaries (as applicable) for such Unencumbered Asset Pool
Property (provided, however, that if any such Unencumbered Asset Pool Property
shall have been purchased as part of a portfolio of properties and no purchase
price shall have been specifically allocated thereto, then the purchase price
therefore shall be deemed to be equal to that percentage of the total purchase
price for such portfolio as is equal to the percentage of the total Net
Operating Cash Flow with respect to such portfolio that the Net Operating Cash
Flow attributable to the applicable Unencumbered Asset Pool Property bears, and
(iii) with respect to Qualified Leased Development Properties,
forty percent (40%) of the book value thereof, provided that availability under
the Commitments attributable to such Qualified Leased Development Properties
shall not in any event exceed 10% of Unencumbered Asset Pool Properties Value.
"Unfunded Liabilities" means, with respect to any Plan at any time,
--------------------
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
-------------
States and the District of Columbia, but excluding its territories and
possessions.
36
"Unsecured Debt" means Debt not secured by a Lien on real
--------------
property.
"Unsecured Debt Ratio" means, as of any date of determination, the
--------------------
ratio of the Unencumbered Asset Pool Properties Value as of the date of
determination to the aggregate amount of Unsecured Debt of the Borrower, the
General Partner and their Consolidated Subsidiaries outstanding as of such date
of determination.
"Unused Commitments" means an amount equal to all unadvanced funds
------------------
(other than unadvanced funds in connection with any construction loan) which any
third party is obligated to advance to the Borrower or otherwise, pursuant to
any Loan Document, written instrument or otherwise.
Section I.2. Accounting Terms and Determinations. Unless otherwise
-----------------------------------
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP,
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower delivered to the Lead Agent and the Banks;
provided that, if the Borrower notifies the Lead Agent and the Banks that the
- --------
Borrower 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 Lead Agent
notifies the Borrower that the Required Banks wish to amend Article V for such
purpose), then the Borrower's compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Required Banks.
37
Section I.3. Types of Borrowings. The term "Borrowing" denotes the
------------------- ---------
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article II on the same date, all of which Loans are of the same type (subject to
Article VIII) and, except in the case of Base Rate Loans, have the same Interest
Period. Borrowings are classified for purposes of this Agreement either by
reference to the pricing of Loans comprising such Borrowing (e.g., a "Euro-
----
Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by reference
to the provisions of Article II 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, while a "Money Market
Borrowing" is a Borrowing under Section 2.3).
ARTICLE II
THE CREDITS
Section II.1. Commitments to Lend.
-------------------
(a) Each Bank severally agrees, on the terms and conditions set forth
in this Agreement, to make Committed Loans to the Borrower and participate in
Letters of Credit issued by the Fronting Bank on behalf of the Borrower pursuant
to this Section from time to time during the Term 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 shall not exceed the amount of its Commitment. The aggregate amount of
Committed Loans to be made hereunder together with the Letter of Credit Usage
and outstanding Money Market Loans shall not exceed Four Hundred Million Dollars
($400,000,000) (the "Loan Amount"). Each Borrowing
-----------
38
under this subsection (a) shall be in an aggregate principal amount of at least
$2,500,000, or an integral multiple of $500,000 in excess thereof and shall be
made from the several Banks ratably in proportion to their respective
Commitments. Subject to the limitations set forth herein, any amounts repaid may
be reborrowed. Notwithstanding anything to the contrary, the number of new
Borrowings shall be limited to ten (10) Borrowings per month.
(b) Notwithstanding anything in the preceding subparagraph (a) to the
contrary, the Loan Amount shall in no event exceed (and no Bank shall be deemed
to have committed to fund its pro rata share of an amount which exceeds) an
--- ----
amount that would cause (A) the ratio of (i) Unencumbered Asset Pool Net
Operating Cash Flow to (ii) Pro-Forma Debt Service to be less than 2.0:1.0 or
(B) the Unsecured Debt Ratio to be less than 2.0:1.0 or (C) an amount which
would result in the violation of any provision of Section 5.8.
Section II.2. Notice of Committed Borrowing. (a) The Borrower shall
-----------------------------
give the Lead Agent notice (a "Notice of Committed Borrowing") not later than
-----------------------------
2:00 p.m. (New York City time) (x) one Domestic Business Day before each Base
Rate Borrowing or (y) the third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(1) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Dollar Business
Day in the case of a Euro-Dollar Borrowing,
(2) the aggregate amount of such Borrowing,
39
(3) whether the Loans comprising such Borrowing are to be Base
Rate Loans or Euro-Dollar Loans,
(4) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period,
(5) the intended use for the proceeds of such Borrowing,
and
(6) that no Default or Event of Default has occurred or is
continuing.
Notwithstanding the time frame set forth in clause (a)(x) above, in the event
that the Money Market Quotes submitted by the Banks pursuant to Section 2.3(c)
below are, in the aggregate, in an amount less than the principal amount
requested by the Borrower in the related Money Market Quote Request, then the
Borrower shall be permitted to give the Lead Agent notice of its intent to make
a Base Rate Borrowing, in the amount of the difference between accepted Money
Market Quotes and the principal amount requested by Borrower in the related
Money Market Quote Request, no later than 2:30 p.m. (New York City time) on the
date of such Borrowing.
(b) Borrower shall give the Lead Agent, and the designated Fronting
Bank, written notice in the event that it desires to have Letters of Credit
(each, a "Letter of Credit") issued hereunder no later than 2:00 p.m., New York
----------------
City time, at least four (4) Domestic Business Days prior to the date of such
issuance. Each such notice shall specify (i) the designated Fronting Bank, (ii)
the aggregate amount of the requested Letters of Credit, (iii) the individual
amount of each requested Letter of Credit and the number of Letters of Credit to
40
be issued, (iv) the date of such issuance (which shall be a Domestic Business
Day), (v) the name and address of the beneficiary, (vi) the expiration date of
the Letter of Credit (which in no event shall be later than twelve (12) months
after the issuance of such Letter of Credit or the Maturity Date, whichever is
earlier), (vii) the purpose and circumstances for which such Letter of Credit is
being issued and (viii) the terms upon which each such Letter of Credit may be
drawn down (which terms shall not leave any discretion to Fronting Bank). Each
such notice may be revoked telephonically by the Borrower to the applicable
Fronting Bank and the Lead Agent any time prior to the date of issuance of the
Letter of Credit by the applicable Fronting Bank, provided such revocation is
confirmed in writing by the Borrower to the Fronting Bank and the Lead Agent
within one (1) Domestic Business Day by facsimile. No later than 2:00 p.m., New
York City time, on the date that is four (4) Domestic Business Days prior to the
date of issuance, the 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
following Domestic Business Day that such draft is presented if such
presentation is made later than 10:00 A.M. New York City time (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 Domestic Business Day
against a conforming draft, such beneficiary shall be entitled to such a same
day draw, provided such draft is
41
presented to the applicable Fronting Bank no later than 10:00 A.M. New York City
time and provided further the Borrower shall have requested to the Fronting Bank
and the Lead 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.
Section II.3. Money Market Borrowings.
-----------------------
(a) The Money Market Option. In addition to Committed Borrowings
-----------------------
pursuant to Section 2.1, at such time as the Borrower's Credit Rating is an
Investment Grade Rating from at least two Rating Agencies, one of which shall be
S&P or Moody's, the Borrower may, as set forth in this Section 2.3, request the
Banks during the Term to make offers to make Money Market Loans to the Borrower,
not to exceed, at such time, the lesser of (i) the Committed Loans and (ii)
$150,000,000. The Banks may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section.
(b) Money Market Quote Request. When the Borrower wishes to request
--------------------------
offers to make Money Market Loans under this Section, it shall transmit to the
Lead Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit D hereto so as to be received not later
---------
than 2:00 p.m. (New York City time) on (x) the fourth Euro-Dollar Business Day
prior to the date of Borrowing proposed therein, in the case of a LIBOR Auction,
or (y) the Domestic Business Day next preceding the date of Borrowing proposed
therein, in the case of an Absolute Rate Auction (or, in either case, such other
time or date as
42
the Borrower and the Lead Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market Quote Request
for the first LIBOR Auction or Absolute Rate Auction for which such change is to
be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-
Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $500,000,
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period, and
(iv) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within thirty days (or such other number of days as the
Borrower and the Lead Agent may agree) of any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
----------------------------------
Money Market Quote Request, the Lead Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit F hereto, which shall constitute an invitation by the
---------
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section 2.3.
43
(d) Submission and Contents of Money Market Quotes. (i) Each Bank
----------------------------------------------
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Lead Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 9.1 not later than (x) 10:00 a.m. (New York
City time) on the third Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction, or (y) 10:00 a.m. (New York City
time) on the proposed date of Borrowing, in the case of an Absolute Rate Auction
(or, in either case, such other time or date as the Borrower and the Lead Agent
shall have mutually agreed and shall have notified to the Banks not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective); provided that
--------
Money Market Quotes submitted by the Lead Agent (or any affiliate of the Lead
Agent) in the capacity of a Bank may be submitted, and may only be submitted, if
the Lead Agent or such affiliate notifies the Borrower of the terms of the offer
or offers contained therein not later than thirty (30) minutes prior to the
applicable deadline for the other Banks. Subject to Articles III and VI, any
Money Market Quote so made shall be irrevocable except with the written consent
of the Lead Agent given on the instructions of the Borrower. Such Money Market
Loans may be funded by such Bank's Designated Lender (if any) as provided in
Section 9.6(d); however such Bank shall not be required to specify in its Money
Market Quote whether such Money Market Loans will be funded by such Designated
Lender.
(ii) Each Money Market Quote shall be in substantially the form
of Exhibit E hereto and shall in any case specify:
---------
44
(1) the proposed date of Borrowing,
(2) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater than or
less than the Commitment of the quoting Bank, (x) must be $10,000,000 or a
larger multiple of $500,000, (y) may not exceed the principal amount of
Money Market Loans for which offers were requested and (z) may be subject
to an aggregate limitation as to the principal amount of Money Market Loans
for which offers being made by such quoting Bank may be accepted,
(3) in the case of a LIBOR Auction, the margin above or below
the applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(4) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the "Money
Market Absolute Rate") offered for each such Money Market Loan, and
(5) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
45
(1) is not substantially in conformity with Exhibit F hereto or
---------
does not specify all of the information required by subsection (d)(ii)
above;
(2) contains qualifying, conditional or similar language;
(3) proposes terms other than or in addition to those set forth
in the applicable Invitation for Money Market Quotes; or
(4) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Lead Agent shall promptly notify the
------------------
Borrower (x) with respect to each Money Market Quote submitted in accordance
with subsection (d), of the terms of such Money Market Quote and the identity of
the Bank submitting such Money Market Quote and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Lead Agent unless such subsequent Money Market Quote is submitted solely to
correct a manifest error in such former Money Market Quote. The Lead Agent's
notice to the Borrower shall specify (A) the aggregate principal amount of Money
Market Loans for which offers have been received for each Interest Period
specified in the related Money Market Quote Request, (B) the respective
principal amounts and Money Market Margins or Money Market Absolute Rates, as
the case may be, so offered and (C) if applicable, limitations on the aggregate
principal amount of Money Market Loans for which offers in any single Money
Market Quote may be accepted.
46
(f) Acceptance and Notice by Borrower. Not later than 1:00 p.m. (New
---------------------------------
York City time) on (x) the third Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction, or (y) the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Lead Agent shall have mutually agreed
and shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective), the Borrower shall notify the Lead Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a "Notice of Money
---------------
Market Borrowing") shall specify the aggregate principal amount of offers for
- ----------------
each Interest Period that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
--------
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the principal amount of each Money Market Borrowing must
be $10,000,000 or a larger multiple of $500,000;
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the case
may be; and
(iv) the Borrower may not accept any offer that is described
in subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
47
(g) Allocation by Lead Agent. If offers are made by two or more Banks
------------------------
with the same Money Market Margins or Money Market Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which such offers are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are accepted shall
be allocated by the Lead Agent among such Banks as nearly as possible (in
multiples of $500,000, as the Lead Agent may deem appropriate) in proportion to
the aggregate principal amounts of such offers. Determinations by the Lead
Agent of the amounts of Money Market Loans shall be conclusive in the absence of
manifest error.
(h) Notification by Lead Agent. Upon receipt of the Borrower's Notice
--------------------------
of Money Market Borrowing in accordance with Section 2.3(f) hereof, the Lead
Agent shall, on the date such Notice of Money Market Borrowing is received by
the Lead Agent, notify each Bank of the principal amount of the Money Market
Borrowing accepted by the Borrower and of such Bank's share (if any) of such
Money Market Borrowing and such Notice of Money Market Borrowing shall not
thereafter be revocable by the Borrower. A Bank who is notified that it has been
selected to make a Money Market Loan may designate its Designated Lender (if
any) to fund such Money Market Loan on its behalf, as described in Section
9.6(d). Any Designated Lender which funds a Money Market Loan shall on and
after the time of such funding become the obligee under such Money Market Loan
and be entitled to receive payment thereof when due. No Bank shall be relieved
of its obligation to fund a Money Market Loan, and no Designated Lender shall
assume such obligation, prior to the time the applicable Money Market Loan is
funded.
Section II.4. Notice to Banks; Funding of Loans.
---------------------------------
48
(a) Upon receipt of a Notice of Committed Borrowing, the Lead Agent
shall notify each Bank on the same day as it receives the Notice of Committed
Borrowing of the contents thereof and of such Bank's share of such Borrowing and
such Notice of Committed Borrowing shall not thereafter be revocable by the
Borrower.
(b) Not later than 2:00 P.M. (New York City time) on the date of each
Committed Borrowing, each Bank shall make available its share of such Committed
Borrowing, in Federal or other funds immediately available in New York City, to
the Lead Agent at its address referred to in Section 9.1. The Lead Agent will
make the funds so received from the Banks available to the Borrower at the Lead
Agent's aforesaid address. If the Borrower has requested the issuance of a
Letter of Credit, no later than 12:00 Noon (New York City 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 Borrower with a copy thereof to the Lead Agent. At
the request of any Bank, the Lead Agent promptly shall deliver copies thereof to
such Bank. Immediately upon the issuance of each Letter of Credit by the
Fronting Bank, such 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 the obligations of the
Borrower hereunder with respect thereto, and any security therefor or guaranty
pertaining thereto, in an amount equal to such Bank's ratable share thereof
(based upon the ratio its Commitment bears to the aggregate of all Commitments).
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
49
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 Lead Agent will instruct the Fronting Bank
to make such Letter of Credit available to the Borrower and the Fronting Bank
shall make such Letter of Credit available to the Borrower at the Borrower's
aforesaid address or at such address in the United States as Borrower shall
request on the date of the Borrowing.
(c) Unless the Lead Agent shall have received notice from a Bank prior
to the date of any Borrowing that such Bank will not make available to the Lead
Agent such Bank's share of such Borrowing, the Lead Agent may assume that such
Bank has made such share available to the Lead Agent on the date of such
Borrowing in accordance with subsection (b) of this Section 2.4 and the Lead
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Bank shall not
have so made such share available to the Lead Agent, such Bank and the Borrower
severally agree to repay to the Lead Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Lead Agent, at (i) in the case of the Borrower, a rate per annum
equal to the higher of the Federal Funds Rate and the interest rate applicable
thereto pursuant to Section 2.7 and (ii) in the case of such Bank, the Federal
Funds Rate. If such Bank shall repay to the Lead Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement.
Section II.5. Notes.
-----
50
(a) The Loans shall be evidenced by the Notes, each of which shall be
payable to the order of each Bank for the account of its Applicable Lending
Office in an amount equal to each such Bank's Commitment.
(b) Each Bank may, by notice to the Borrower and the Lead 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. Each
such Note shall be in substantially the form of Exhibit A hereto, with
---------
appropriate modifications to reflect the fact that it evidences solely Loans of
the relevant type. Each reference in this Agreement to the "Note" of such Bank
----
shall be deemed to refer to and include any or all of such Notes, as the context
may require.
(c) Upon receipt of each Bank's Note, the Lead Agent shall forward
such Note to such Bank. Each Bank shall record the date, amount, type and
maturity of each Loan made by it and the date and amount of each payment of
principal made by the Borrower with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note, endorse on
the schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding; provided
--------
that the failure of any Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Notes. Each
Bank is hereby irrevocably authorized by the Borrower so to endorse its Note and
to attach to and make a part of its Note a continuation of any such schedule as
and when required.
(d) There shall be no more than ten (10) Euro-Dollar Borrowings
outstanding at any one time pursuant to this Agreement.
51
Section II.6. Maturity of Loans. The Loans shall mature, and the
-----------------
principal amount thereof shall be due and payable, on the Maturity Date.
Section II.7. 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 it
becomes due, at a rate per annum equal to the sum of twenty-five (25) basis
points plus the Base Rate for such day. Such interest shall be payable for each
Interest Period on the last day thereof.
(b) Each Euro-Dollar 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 plus the
Adjusted London Interbank Offered Rate for such day.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
"Adjusted London Interbank Offered Rate" applicable to any Interest
--------------------------------------
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
"Euro-Dollar Reserve Percentage" means for any day that percentage
------------------------------
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a
52
member bank of the Federal Reserve System in New York City with deposits
exceeding five billion dollars in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a non-
United States office of any Bank to United States residents). The Adjusted
London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
"London Interbank Offered Rate" applicable to any Interest Period
-----------------------------
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
the Reference Bank in the London interbank market at approximately 11:00 a.m.
(London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of such Reference Bank to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
(c Subject to Section 8.1, each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.7(b) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.3. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate
53
quoted by the Bank making such Loan in accordance with Section 2.3. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than ninety days, at intervals of ninety days
after the first day thereof.
(d In the event that, and for so long as, any Event of Default
shall have occurred and be continuing, the outstanding principal amount of the
Loans, and, to the extent permitted by law, overdue interest in respect of all
Loans, shall bear interest at the annual rate of the sum of the Base Rate and
four percent (4%).
(e The Lead Agent shall determine each interest rate applicable to
the Loans hereunder. The Lead Agent shall give prompt notice to the Borrower and
the Banks of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
(f The Reference Bank agrees to use its best efforts to furnish
quotations to the Lead Agent as contemplated by this Section. If the Reference
Bank does not furnish a timely quotation, the provisions of Section 8.1 shall
apply.
Section II.8. Fees.
----
(a Commitment/Facility Fee. During the Term, the Borrower
-----------------------
shall pay to the Lead Agent for the account of the Banks ratably in proportion
to their respective Commitments, a commitment fee on the daily average undrawn
and uncancelled Commitments in any given quarter determined as follows:
(i prior to the Adjustment Date, the Borrower shall pay to the Lead
Agent for the account of the Banks ratably in proportion to their respective
Commitments, a commitment fee on the daily average
54
undrawn and uncancelled Commitments in any given quarter at the respective
percentages per annum based upon the range into which the Total Debt Ratio then
falls in accordance with the following table:
----------------------------------------------------------------------------
Total Debt Ratio Applicable Commitment Fee
(% per annum)
----------------------------------------------------------------------------
less than 35% 0.20%
----------------------------------------------------------------------------
equal to or greater than 35% but less 0.25%
than 45%
----------------------------------------------------------------------------
equal to or greater than 45% but less 0.30%
than 50%
----------------------------------------------------------------------------
equal to or greater than 50% but less 0.35%
than 55%
----------------------------------------------------------------------------
(i from and after the Adjustment Date, the Borrower shall pay to
the Lead Agent for the account of the Banks ratably in proportion to their
respective Commitments, a facility fee on the daily average Commitments in any
given quarter at the respective percentages per annum based upon the Borrower's
Credit Rating in accordance with the following table:
-------------------------------------------------------------------------
Borrower's Credit Rating Applicable Facility Fee
(% per annum)
-------------------------------------------------------------------------
BBB+/Baa1 0.20%
-------------------------------------------------------------------------
BBB/Baa2 0.20%
-------------------------------------------------------------------------
BBB-/Baa3 0.25%
-------------------------------------------------------------------------
Below Investment Grade 0.325%
Rating or no rating
-------------------------------------------------------------------------
55
The commitment/facility fee shall be payable quarterly, in arrears, on each
January 1, April 1, July 1, and October 1 during the Term and any extensions
thereof. Any change in the Borrower's Credit Rating causing it to move into a
different range on the table shall effect an immediate change in the applicable
percentage per annum. In the event that the Borrower's (or the General
Partner's) Credit Rating is such that the Rating Agencies' ratings are split
between a higher and a lower rating, the applicable percentage per annum shall
be based upon the lower of such two (2) Credit Ratings. In the event that
Borrower (or, as applicable, the General Partner) receives more than two (2)
credit ratings and such credit ratings are not equivalent, the applicable fee
shall be determined by the lower of the two (2) highest ratings, provided that
each of said two (2) highest ratings shall be Investment Grade Ratings and at
least one of which shall be an Investment Grade Rating from S&P or Moody's.
(b Letter of Credit Fee. During the Term, the Borrower shall
--------------------
pay to the Lead Agent, for the account of the Banks in proportion to their
interests in respect of undrawn issued Letters of Credit, a fee (a "Letter of
---------
Credit Fee") in an amount, provided that no Event of Default shall have occurred
- ----------
and be continuing, equal to a rate per annum equal to the Applicable Margin with
respect to Euro-Dollar 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 an Event of Default, 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.
(c Fronting Bank Fee. The Borrower shall pay any Fronting
-----------------
Bank, for its own account, a fee (a "Fronting Bank Fee") at a rate per annum
-----------------
equal to .15%
56
of the issued and undrawn amount of such Letter of Credit, which fee shall be in
addition to and not in lieu of, the Letter of Credit Fee. The Fronting Bank Fee
shall be payable in arrears on each January 1, April 1, July 1 and October 1
during the Term.
(d Intentionally omitted.
---------------------
(e Fees Non-Refundable. All fees set forth in this Section 2.8
-------------------
shall be deemed to have been earned on the date payment is due in accordance
with the provisions hereof and shall be non-refundable. The obligation of the
Borrower to pay such fees in accordance with the provisions hereof shall be
binding upon the Borrower and shall inure to the benefit of the Lead Agent and
the Banks regardless of whether any Loans are actually made.
Section II.9. Mandatory Termination. The term (the "Term") of the
--------------------- ----
Commitments shall terminate and expire, and the Borrower shall return or cause
to be returned all Letters of Credit to the Fronting Bank, on November 8, 2002
(the "Maturity Date").
-------------
Section II.10. Mandatory Prepayment.
--------------------
(a In the event that an Unencumbered Asset Pool Property (or
any Separate Parcel that originally formed a part of an Unencumbered Asset Pool
Property) is sold, transferred or released from the restrictions of Section 5.16
hereof, the Borrower shall, simultaneously with such sale, transfer or release,
prepay the Loans in an amount equal to 100% of the net proceeds of such sale or
transfer, in the event of a sale or transfer, or such lesser amount as shall be
required for the Borrower to remain in compliance with this Agreement, in the
event of such a sale, transfer or release. Notwithstanding the foregoing, a
simultaneous like-kind exchange under Section 1031 of the Internal Revenue Code
will not be subject to the provisions of this Section 2.10(a), pro-
57
vided that the exchanged property has qualified as a New Acquisition and any
cash "boot" associated therewith shall be applied to prepayment of the Loans or
such lesser amount of such cash "boot" as shall be required for the Borrower to
remain in compliance with this Agreement. Sale of an Unencumbered Asset Pool
Property (or any Separate Parcel that originally formed a part of a Unencumbered
Asset Pool Property) in violation of this Section 2.10 shall constitute an Event
of Default.
(b Simultaneously with the closing of any sale of common shares
of beneficial interest, preferred shares of beneficial interest, partnership
interests, limited liability company interests, or other ownership or equity
interests in the Borrower or the General Partner, the Borrower shall,
simultaneously with such sale, prepay the Loans in an amount equal to 100% of
the Net Offering Proceeds. Notwithstanding the foregoing, however, in the event
that (i) the Net Offering Proceeds in connection with any individual offering
shall be less than $20,000,000, and the Borrower anticipates reinvesting the
same in Real Property Assets within fifteen (15) days after receipt thereof or
(ii) any Loans expire within thirty (30) days of the date thereof, the Borrower
may retain such funds, provided, however, that if the Borrower shall not in fact
so reinvest such funds in Real Property Assets within such fifteen (15) day
period or repay such Loans within such thirty (30) day period, as the case may
be, the Borrower shall immediately apply the same in repayment of the Loans.
(c in the event that the Unsecured Debt Ratio is not maintained
as of the last day of a calendar quarter, either (i) the Borrower will add a
Real Property Asset to the Unencumbered Asset Pool Properties in accordance with
this Agreement which, on a pro forma basis (i.e. the Unsecured Debt Ratio shall
--------- ---
be recalculated to include such Real Property Asset as though the same had been
an Unencumbered Asset Pool Property for
58
the entire applicable period) would result in compliance with the Unsecured Debt
Ratio, or (ii) the Borrower shall prepay to the Lead Agent, for the account of
the Banks, an amount necessary to cause the Unsecured Debt Ratio to be in
compliance within ninety (90) days of the date on which the Unsecured Debt Ratio
failed to be maintained. Failure by the Borrower to comply with the Unsecured
Debt Ratio within ninety (90) days of the date of such non-compliance shall be
an Event of Default.
Section II.11. Optional Prepayments.
--------------------
(a The Borrower may, upon at least one Domestic Business Day's
notice to the Lead Agent, prepay to the Lead Agent, for the account of the
Banks, any Base Rate Borrowing in whole at any time, or from time to time in
part in amounts aggregating One Million Dollars ($1,000,000), or an integral
multiple of One Million Dollars ($1,000,000) in excess thereof or, if less, the
outstanding principal balance, 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 Borrowing.
(b Except as provided in Section 8.2, the Borrower may not prepay
all or any portion of the principal amount of any Euro-Dollar Loan prior to the
maturity thereof unless the Borrower shall also pay any applicable expenses
pursuant to Section 2.13. Any such prepayment shall be upon at least three (3)
Euro-Dollar Business Days' notice to the Lead Agent. Any notice of prepayment
delivered pursuant to this Section 2.11(b) shall set forth the amount of such
prepayment which is applicable to any Loan made for working capital purposes.
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.
59
(c The Borrower may not prepay any Money Market Loan.
(d The Borrower may, upon at least one (1) Domestic Business
Day's notice to the Lead Agent (by 2:00 p.m New York time on such Domestic
Business Day), reimburse the Lead Agent for the benefit of the Fronting Bank for
the amount of any drawing under a Letter of Credit in whole or in part in any
amount.
(e The Borrower may at any time return any undrawn Letter of
Credit to the Fronting Bank in whole, but not in part, and the Fronting Bank
shall give the Lead Agent and each of the Banks notice of such return.
(f The Borrower may at any time and from time to time cancel
all or any part of the Commitments in amounts aggregating One Million Dollars
($1,000,000), or an integral multiple of One Million Dollars ($1,000,000) in
excess thereof, by the delivery to the Lead Agent and the Banks of a notice of
cancellation upon at least three (3) Domestic Business Days' notice to Lead
Agent and the Banks, whereupon, all or such portion of the Commitments shall
terminate as to the Banks, pro rata on the date set forth in such notice of
--------
cancellation, and, if there are any Loans then outstanding in an aggregate
amount which exceeds the aggregate Commitments (after giving effect to any such
reduction), the Borrower shall prepay to the Lead Agent, for the account of the
Banks, all or such portion of Loans outstanding on such date in accordance with
the requirements of Sections 2.11(a) and (b). In no event shall the Borrower be
permitted to cancel Commitments for which a Letter of Credit has been issued and
is outstanding unless the Borrower returns (or causes to be returned) such
Letter of Credit to the Fronting Bank. The Borrower shall be permitted to
designate in its
60
notice of cancellation which Loans, if any, are to be prepaid.
(g Upon receipt of a notice of prepayment or cancellation or a
return of a Letter of Credit pursuant to this Section, the Lead Agent shall
promptly, and in any event within one (1) Domestic Business Day, notify each
Bank of the contents thereof and of such Bank's ratable share (if any) of such
prepayment or cancellation and such notice shall not thereafter be revocable by
the Borrower.
(h Any amounts so prepaid pursuant to this Section 2.11 may be
reborrowed subject to the other terms of this Agreement. In the event that the
Borrower elects to cancel all or any portion of the Commitments pursuant to
Section 2.11(c) hereof, such amounts may not be reborrowed.
Section II.12. General Provisions as to Payments.
---------------------------------
(a The Borrower shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, not later than 3:00 p.m. (New York
City time) on the date when due, in Federal or other funds immediately available
in New York City, to the Lead Agent at its address referred to in Section 9.1.
The Lead Agent will distribute to each Bank its ratable share of each such
payment received by the Lead Agent for the account of the Banks on the same day
as received by the Lead Agent if received by the Lead Agent by 3:00 p.m. (New
York City time), or, if received by the Lead Agent after 3:00 p.m. (New York
City time), on the immediately following Domestic Business Day. If the Lead
Agent shall fail to distribute to a Bank its ratable share of a payment on the
same day it is received or the immediately following Domestic Business Day, as
applicable in accordance with the immediately preceding sentence, the
61
Lead Agent shall pay to such Bank the interest accrued on such payment at the
Federal Funds Rate, commencing on the day the Lead Agent should have made the
payment to such Bank and ending on the day prior to the date payment is actually
made. Whenever any payment of principal of, or interest on, the Base Rate Loans
or of fees shall be due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding Domestic Business
Day. Whenever any payment of principal of, or interest on, the Euro-Dollar Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Euro-Dollar
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.
(b Unless the Lead Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Lead Agent may assume
that the Borrower has made such payment in full to the Lead Agent on such date
and the Lead Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent that the Borrower shall not have so made such
payment, each Bank shall repay to the Lead 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 Lead Agent, at the Federal Funds Rate.
Section II.13. Funding Losses. If the Borrower makes any payment of
--------------
principal with respect to any
62
Euro-Dollar Loan (pursuant to Article II, VI or VIII or otherwise, and
specifically including any payments made pursuant to Sections 2.10 or 2.11) on
any day other than the last day of the Interest Period applicable thereto, or if
the Borrower fails to borrow any Euro-Dollar Loans, after notice has been given
to any Bank in accordance with Section 2.4(a), the Borrower shall reimburse each
Bank within 15 days after demand for any resulting loss or expense incurred by
it (or by an existing Participant in the related Loan; provided that no
Participant shall be entitled to receive more than the Bank with respect to
which such Participant is a Participant would be entitled to receive under this
Section 2.13), 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 the Borrower a certificate as to the amount of
such loss or expense and the calculation thereof, which certificate shall be
conclusive in the absence of manifest error.
Section II.14. Computation of Interest and Fees. Interest based on
--------------------------------
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 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 II.15. Method of Electing Interest Rates.
---------------------------------
(a The Loans included in each Borrowing shall bear interest
initially at the type of rate specified by the Borrower in the applicable Notice
of Committed Borrowing. Thereafter, the Borrower may from time
63
to time elect to change or continue the type of interest rate borne by each
Group of Loans (subject in each case to the provisions of Article VIII), as
follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect
to convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case effective
on the last day of the then current Interest Period applicable to such
Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
------------------
Rate Election") to the Lead Agent at least three (3) Euro-Dollar Business Days
- -------------
before the conversion or continuation selected in such notice is to be effective
(unless the relevant Loans are to be continued as Base Rate Loans, in which case
such notice shall be delivered to the Lead Agent no later than 2:00 p.m. (New
York City time) at least one (1) Domestic Business Day before such continuation
is to be effective). A Notice of Interest Rate Election may, if it so specifies,
apply to only a portion of the aggregate principal amount of the relevant Group
of Loans; provided that (i) such portion is allocated ratably among the Loans
--------
comprising such Group, (ii) the portion to which such notice applies, and the
remaining portion to which it does not apply, are each $1,000,000 or any larger
multiple of $1,000,000, (iii) there shall be no more than ten (10) Borrowings
comprised of Euro-Dollar Loans outstanding at any time under this Agreement,
(iv) no Loan may be continued as, or converted into, a Euro-Dollar Loan when any
Event of Default has occurred and
64
is continuing, and (v) no Interest Period shall extend beyond the Maturity Date.
(b Each Notice of Interest Rate Election shall specify:
(i the Group of Loans (or portion thereof) to which such notice
applies;
(ii the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii if the Loans comprising such Group are to be converted,
the new type of Loans and, if such new Loans are Euro-Dollar Loans, the
duration of the initial Interest Period applicable thereto; and
(iv if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Lead Agent shall notify each Bank
on the same day as it receives such Notice of Interest Rate Election of the
contents thereof and such notice shall not thereafter be revocable by the
Borrower. If the Borrower fails to deliver a timely Notice of Interest Rate
Election to the Lead Agent for any Group of Euro-Dollar Loans, such Loans shall
be converted into Base Rate Loans on the last day of the then current Interest
Period applicable thereto.
65
Section II.16. 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 Borrower in an amount or amounts
equal to the amount or amounts requested by the Borrower.
(b Each Letter of Credit shall be issued in the minimum amount
of One Million Dollars ($1,000,000).
(c The Letter of Credit Usage shall be no more than Twenty-Five
Million Dollars ($25,000,000) at any one time.
(d There shall be no more than three (3) Letters of Credit
outstanding at any one time.
(e In the event of any request for a drawing under any Letter
of Credit by the beneficiary thereunder, the Fronting Bank shall endeavor to
notify the Borrower and the Lead Agent (and the Lead Agent shall endeavor to
notify each Bank thereof) on or before the date on which the Fronting Bank
intends to honor such drawing, and, except as provided in this subsection (e),
the Borrower shall reimburse the Fronting Bank, in immediately available funds,
on the same day on which such drawing is honored in an amount equal to the
amount of such drawing. Notwithstanding anything contained herein to the
contrary, however, unless the Borrower shall have notified the Lead Agent and
the Fronting Bank prior to 2:00 p.m. (New York time) on the Domestic Business
Day immediately prior to the date of such drawing that the Borrower intends to
reimburse the Fronting Bank for the amount of such drawing with funds other than
the proceeds of the Loans, the Borrower shall be deemed to have timely given a
Notice of Committed Borrowing pursuant to
66
Section 2.2 to the Lead Agent, requesting a Borrowing of Base Rate Loans on the
date on which such drawing is honored and in an amount equal to the amount of
such drawing. Each Bank (other than the Fronting Bank) shall, in accordance with
Section 2.4(b), make available its share of such Borrowing to the Lead Agent,
the proceeds of which shall be applied directly by the Lead Agent to reimburse
the Fronting Bank for the amount of such draw. In the event that any such Bank
fails to make available to the Fronting Bank the amount of such Bank's
participation on the date of a drawing, the Fronting Bank shall be entitled to
recover such amount on demand from such Bank together with interest at the
Federal Funds Rate commencing on the date such drawing is honored.
(f If, at the time a beneficiary under any Letter of Credit
requests a drawing thereunder, an Event of Default as described in Section
6.1(f) or Section 6.1(g) shall have occurred and is continuing, then on the date
on which the Fronting Bank shall have honored such drawing, the Borrower shall
have an unreimbursed obligation (the "Unreimbursed Obligation") to the Fronting
-----------------------
Bank in an amount equal to the amount of such drawing, which amount shall bear
interest at the annual rate of the sum of the Base Rate plus four percent (4%).
Each Bank shall purchase an undivided participating interest in the Unreimbursed
Obligation in an amount equal to its pro rata share of the Commitments, and upon
receipt thereof the Fronting Bank shall deliver to such Bank an Unreimbursed
Obligation participation certificate dated the date of the Fronting Bank's
receipt of such funds and in the amount of such Bank's pro rata share.
(g If, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any court or administrative or
governmental authority charged with the administration thereof shall either (i)
67
impose, modify or deem applicable any reserve, special deposit or similar
requirement against letters of credit issued by, or assets held by, or deposits
in or for the account of, or participations in any letter of credit, upon any
Bank (including the Fronting Bank) or (ii) impose on any Bank any other
condition regarding this Agreement or such Bank (including the Fronting Bank) as
it pertains to the Letters of Credit or any participation therein and the result
of any event referred to in the preceding clause (i) or (ii) shall be to
increase, by an amount deemed by the Fronting Bank or such Bank to be material,
the cost to the Fronting Bank or any Bank of issuing or maintaining any Letter
of Credit or participating therein then the Borrower shall pay to the Fronting
Bank or such Bank, within 15 days after written demand by such Bank (with a copy
to the Lead Agent), which demand shall be accompanied by a certificate showing,
in reasonable detail, the calculation of such amount or amounts, such additional
amounts as shall be required to compensate the Fronting Bank or such Bank for
such increased costs or reduction in amounts received or receivable hereunder.
(h The Borrower hereby agrees to protect, indemnify, pay and save
the Fronting Bank harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees and disbursements) which the Fronting Bank may incur or be
subject to as a result of (i) the issuance of the Letters of Credit, other than
as a result of the gross negligence or wilful misconduct of the Fronting Bank or
(ii) the failure of the Fronting Bank to honor a drawing under any Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or Governmental Authority
-- ---- -- -----
(collectively, "Governmental Acts"), other than as a result of the gross
-----------------
negligence or wilful misconduct of the Fronting
68
Bank. As between the Borrower and the Fronting Bank, the Borrower assumes all
risks of the acts and omissions of, or misuses of, the Letters of Credit issued
by the Fronting Bank, by the beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, the Fronting Bank shall not
be responsible (i) for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of such Letters of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or insufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of any such Letter of Credit to comply fully with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
message, by mail, cable, telegraph, telex, facsimile transmission, or otherwise;
(v) for errors in interpretation of any technical terms; (vi) for any loss or
delay in the transmission or otherwise of any documents required in order to
make a drawing under any such Letter of Credit or of the proceeds thereof; (vii)
for the misapplication by the beneficiary of any such Letter of Credit of the
proceeds of such Letter of Credit; and (viii) for any consequence arising from
causes beyond the control of the Fronting Bank, including any Government Acts,
in each case other than as a result of the gross negligence or willful
misconduct of the Fronting Bank. None of the above shall affect, impair or
prevent the vesting of the Fronting Bank's rights and powers hereunder. In
furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by the Fronting Bank under or
in connection with the
69
Letters of Credit issued by it or the related certificates, if taken or omitted
in good faith, shall not put the Fronting Bank under any resulting liability to
the Borrower.
(i If the Fronting Bank or the Lead Agent is required at any time,
pursuant to any bankruptcy, insolvency, liquidation or reorganization law or
otherwise, to return to the Borrower any reimbursement by the Borrower of any
drawing under any Letter of Credit, each Bank shall pay to the Fronting Bank or
the Lead Agent, as the case may be, its share of such payment, but without
interest thereon unless the Fronting Bank or the Lead Agent is required to pay
interest on such amounts to the person recovering such payment, in which case
with interest thereon, computed at the same rate, and on the same basis, as the
interest that the Fronting Bank or the Lead Agent is required to pay.
Section II.17. Letter of Credit Usage Absolute. The obligations of
-------------------------------
the Borrower under this Agreement in respect of any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement (as the same may be amended from time to time) and any
Letter of Credit Documents (as hereinafter defined) under all circumstances,
including, without limitation, to the extent permitted by law, the following
circumstances:
(a any lack of validity or enforceability of any Letter of Credit or
any other agreement or instrument relating thereto (collectively, the "Letter of
---------
Credit Documents") or any Loan Document;
---------------
(b any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Borrower in respect of
the Letters of Credit or any other amendment or waiver of or any consent by the
Borrower to departure from all or any
70
of the Letter of Credit Documents or any Loan Document; provided, that the
--------
Fronting Bank shall not consent to any such change or amendment unless
previously consented to in writing by the Borrower;
(c any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any guaranty, for
all or any of the obligations of the Borrower in respect of the Letters of
Credit;
(d the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee of a
Letter of Credit (or any Persons for whom any such beneficiary or any such
transferee may be acting), the Lead Agent, the Fronting Bank or any Bank (other
than a defense based on the gross negligence or wilful misconduct of the Lead
Agent, the Fronting Bank or such Bank) or any other Person, whether in
connection with the Loan Documents, the transactions contemplated hereby or by
the Letters of Credit Documents or any unrelated transaction;
(e any draft or any other document presented under or in connection
with any Letter of Credit or other Loan Document proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; provided, that payment by the
--------
Fronting Bank under such Letter of Credit against presentation of such draft or
document shall not have constituted gross negligence or wilful misconduct of the
Fronting Bank;
(f payment by the Fronting Bank against presentation of a draft or
certificate that does not comply with the terms of the Letter of Credit;
provided, that such payment shall not have constituted gross negligence or
- --------
wilful misconduct of the Fronting Bank; and
71
(g any other circumstance or happening whatsoever other than the
payment in full of all obligations hereunder in respect of any Letter of Credit
or any agreement or instrument relating to any Letter of Credit, whether or not
similar to any of the foregoing, that might otherwise constitute a defense
available to, or a discharge of, the Borrower; provided, that such other
--------
circumstance or happening shall not have been the result of gross negligence or
wilful misconduct of the Fronting Bank.
ARTICLE III
CONDITIONS
Section III.1. Closing. The closing hereunder shall occur on the
-------
date (the "Closing Date") when each of the following conditions is satisfied (or
------------
waived by the Lead Agent, such waiver to be evidenced by the continuation or
funding after the date hereof of Loans and notice of such waiver to be given to
the Banks by the Lead Agent), each document to be dated the Closing Date unless
otherwise indicated:
(a the Borrower shall have executed and delivered to the Lead Agent
a Note for the account of each Bank dated on or before the Closing Date
complying with the provisions of Section 2.5;
(b the Borrower shall have executed and delivered to the Lead Agent
a duly executed original of this Agreement;
(c the General Partner shall have executed and delivered to the Lead
Agent a duly executed original of the Guaranty;
72
(d the Lead Agent shall have received an opinion of Latham &
Watkins, counsel for the Borrower and the General Partner, acceptable to the
Lead Agent, the Banks and their counsel;
(e the Lead Agent shall have received all documents the Lead Agent
may reasonably request relating to the existence of the Borrower, the General
Partner, the authority for and the validity of this Agreement and the other Loan
Documents, and any other matters relevant hereto, all in form and substance
reasonably satisfactory to the Lead Agent. Such documentation shall include,
without limitation, the articles of incorporation and by-laws or the partnership
agreement and limited partnership certificate, as applicable, of the Borrower
and the General Partner, as amended, modified or supplemented to the Closing
Date, each certified to be true, correct and complete by a senior officer of the
Borrower or the General Partner, as the case may be, as of the Closing Date,
together with a good standing certificate from the Secretary of State (or the
equivalent thereof) of the State of Delaware with respect to the Borrower and of
the State of Maryland with respect to the General Partner, and a good standing
certificate from the Secretary of State (or the equivalent thereof) of each
other State in which the Borrower and the General Partner is required to be
qualified to transact business, each to be dated not more than forty-five (45)
days prior to the Closing Date;
(f the Lead Agent shall have received all certificates, agreements
and other documents and papers referred to in this Section 3.1 and Section 3.2,
unless otherwise specified, in sufficient counterparts, satisfactory in form and
substance to the Lead Agent in its sole discretion;
(g the Borrower and the General Partner shall have taken all
actions required to authorize the
73
execution and delivery of this Agreement and the other Loan Documents and the
performance thereof by the Borrower and the General Partner;
(h the Lead Agent and the Banks shall have received an unaudited
consolidated balance sheet and income statement of the Borrower for the fiscal
quarter ended June 30, 1999;
(i the Lead Agent shall be satisfied that neither the Borrower nor
the General Partner is subject to any present or contingent environmental
liability which could reasonably be expected to have a Material Adverse Effect;
(j the Lead Agent shall have received wire transfer instructions in
connection with the Loans to be made on the Closing Date;
(k the Lead Agent shall have received, for its and any other Bank's
account, all fees due and payable pursuant to Section 2.8 hereof on or before
the Closing Date, and the reasonable fees and expenses accrued through the
Closing Date of Skadden, Arps, Slate, Meagher & Flom LLP;
(l the Lead Agent shall have received copies of all consents,
licenses and approvals, if any, required in connection with the execution,
delivery and performance by the Borrower, and the validity and enforceability
against the Borrower, of the Loan Documents, or in connection with any of the
transactions contemplated thereby to occur on or prior to the Closing Date, and
such consents, licenses and approvals shall be in full force and effect;
(m the representations and warranties of the Borrower contained in
this Agreement shall be true and correct in all material respects on and as of
the Clos-
74
ing Date both before and after giving effect to the making of any Loans;
(n receipt by the Lead Agent and the Banks of a certificate of the
chief financial officer or the chief accounting officer of the Borrower
certifying that the Borrower is in compliance with all covenants of the Borrower
contained in this Agreement, including, without limitation, the requirements of
Section 5.8, as of the Closing Date; and
(o the General Partner shall intend to continue to qualify as a real
estate investment trust under the Internal Revenue Code.
The Lead Agent shall promptly notify the Borrower and the Banks of the Closing
Date, and such notice shall be conclusive and binding on all parties hereto.
Section III.2. Borrowings. The obligation of any Bank to make a Loan
----------
on the occasion of any Borrowing or to participate in any Letter of Credit
issued by the Fronting Bank and the obligation of the Fronting Bank to issue a
Letter of Credit on the occasion of any Borrowing is subject to the satisfaction
of the following conditions:
(a the Closing Date shall have occurred on or prior to November 15,
1999;
(b receipt by the Lead Agent of a Notice of Borrowing as required by
Section 2.2 or 2.3;
(c immediately after such Borrowing, the Outstanding Balance
will not exceed the aggregate amount of the Commitments and with respect to each
Bank, such Bank's pro rata portion of the Committed Loans and Letter of Credit
--------
Usage will not exceed such Bank's Commitment;
75
(d immediately before and after such Borrowing, no Default or Event
of Default shall have occurred and be continuing both before and after giving
effect to the making of such Loans;
(e the representations and warranties of the Borrower contained in
this Agreement (other than representations and warranties which speak as of a
specific date) shall be true and correct in all material respects on and as of
the date of such Borrowing both before and after giving effect to the making of
such Loans;
(f no law or regulation shall have been adopted, no order, judgment
or decree of any governmental authority shall have been issued, and no
litigation shall be pending or threatened, which does or, with respect to any
threatened litigation, seeks to enjoin, prohibit or restrain, the making or
repayment of the Loans, the issuance of any Letter of Credit or any
participations therein or the consummation of the transactions contemplated
hereby; and
(g no event, act or condition shall have occurred after the
Closing Date which, in the reasonable judgment of the Lead Agent or the Required
Banks, as the case may be, has had or is likely to have a Material Adverse
Effect.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(c) through (g) of this Section (except that with respect to clause (f), such
representation and warranty shall be deemed to be limited to laws, regulations,
orders, judgments, decrees and litigation affecting the Borrower and not solely
the Banks).
76
Section III.3. New Acquisitions and Additional Real Property Assets.
----------------------------------------------------
(a Any New Acquisition or Real Property Asset desired by the
Borrower to be included as a Unencumbered Asset Pool Property after the date
hereof and prior to the date on which Borrower has received an Investment Grade
Rating from either S&P or Moody's, will require the approval of the Required
Banks. The Borrower shall submit to the Lead Agent the materials set forth
below (the "Due Diligence Package") relating to each New Acquisition or Real
---------------------
Property Asset that the Borrower desires to be added to the Unencumbered Asset
Pool Properties. The Due Diligence Package shall include (i) a description of
the Real Property Asset, (ii) two years of historical cash flow operating
statements, if available, (iii) five years of cash flow projections (including
capital expenditures), (iv) the credit history of each existing tenant which
occupies more than 15% of such Real Property Asset, (v) a map and site plan,
(vi) copies of all lease agreements and abstracts thereof with each existing
tenant which occupies more than 15% of such Real Property Asset, (vii) a
satisfactory environmental report indicating that (A) the Real Property Asset
complies with all Environmental Laws in all material respects, (B) is free of
all Material of Environmental Concern in all material respects and (C) is not
subject to any Environmental Claim, (viii) an engineer's inspection report
satisfactory to the Lead Agent (provided, however, the Lead Agent shall not deem
an engineer's inspection report satisfactory unless the Required Banks shall
find such engineer's inspection report satisfactory), (ix) a title report and an
existing survey of the property dated not more than twelve (12) months prior to
such submission, (x) tenant delinquency reports, if available, (xi) a rent roll
certified to be true, correct and complete by an authorized officer of Borrower,
(xii) a final investment memorandum prepared by the Borrower in connection with
the Real
77
Property Asset, and (xiii) a statement with respect to the purchase price of
such Real Property Asset or, if such Real Property Asset was purchased as part
of a portfolio and there was no allocation of purchase price, of the purchase
price of the portfolio of Real Property Assets of which it formed a part. The
Borrower shall permit the Lead Agent at all reasonable times and upon reasonable
prior notice to make an inspection of such New Acquisition or Real Property
Asset.
(b The Borrower shall distribute a copy of the items listed in
clauses (i), (ii), (iii), (v) and (xii) of the Section 3.3(a) by overnight mail
to each of the Banks for their review and approval (the "Bank Due Diligence
------------------
Package"). In the event that a Bank desires additional materials which are
- -------
included in the Due Diligence Package delivered to the Lead Agent, such Bank(s)
shall notify the Borrower within two (2) Business Days of receipt of the Bank
Due Diligence Package and the Borrower shall deliver such requested materials to
the requesting Bank within one (1) Business Day of request therefor. To the
extent approval is required pursuant to Section 3.3(a) hereof, failure to
respond to the Lead Agent in writing by any Bank within ten (10) Domestic
Business Days after receipt of the Bank Due Diligence Package shall be deemed to
be an approval by such Bank of such New Acquisition or Real Property Asset for
inclusion as an Unencumbered Asset Pool Property.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lead Agent and each of the other Banks which
may become a party to this Agreement to make the Loans, the Borrower makes the
following representations and warranties as of the date hereof. Such
representations and warranties shall survive the
78
effectiveness of this Agreement, the execution and delivery of the other Loan
Documents and the making of the Loans.
Section IV.1. Existence and Power. The Borrower is duly organized,
-------------------
validly existing and in good standing as a limited partnership under the laws of
the State of Delaware and has all powers and all material governmental licenses,
authorizations, consents and approvals required to own its property and assets
and carry on its business as now conducted or as it presently proposes to
conduct and has been duly qualified and is in good standing in every
jurisdiction in which the failure to be so qualified and/or in good standing is
likely to have a Material Adverse Effect.
Section IV.2. Power and Authority. The Borrower has the
-------------------
organizational power and authority to execute, deliver and carry out the terms
and provisions of each of the Loan Documents to which it is a party and has
taken all necessary action to authorize the execution and delivery on behalf of
the Borrower and the performance by the Borrower of such Loan Documents. The
Borrower has duly executed and delivered each Loan Document to which it is a
party, and each such Loan Document constitutes the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms, except as
enforceability may be limited by applicable insolvency, bankruptcy or other laws
affecting creditors rights generally, or general principles of equity, whether
such enforceability is considered in a proceeding in equity or at law.
Section IV.3. No Violation. Neither the execution, delivery or
------------
performance by or on behalf of the Borrower of the Loan Documents, nor
compliance by the Borrower with the terms and provisions thereof nor the
consummation of the transactions contemplated by the Loan Documents, (i) will
contravene any applicable pro-
79
vision of any law, statute, rule, regulation, order, writ, injunction or decree
of any court or governmental instrumentality applicable to Borrower or (ii) will
conflict with or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of the Borrower pursuant to the terms of any
material indenture, mortgage, deed of trust, or other agreement or other
instrument to which the Borrower (or of any partnership of which the Borrower is
a partner) is a party or by which it or any of its property or assets is bound
or to which it is subject or (iii) will cause a default by the Borrower under
any organizational document of any Subsidiary, or cause a default under the
General Partner's articles of incorporation or by-laws.
Section IV.4. Financial Information.
---------------------
(a) The unaudited consolidated balance sheets of the Borrower and the
General Partner as of June 30, 1999, when delivered to Lead Agent and to the
Banks shall fairly present, in conformity with GAAP, the consolidated financial
position of the Borrower and the General Partner as of such date and their
consolidated results of operations for such fiscal year.
(b) Since June 30, 1999, (i) there has been no material adverse change
in the business, financial position or results of operations of the Borrower or
the General Partner and (ii) except as previously disclosed to the Lead Agent
and to the Banks, neither the Borrower nor the General Partner has incurred any
material indebtedness or guaranty.
Section IV.5. Litigation.
----------
80
(a) There is no action, suit or proceeding pending against, or to the
knowledge of the Borrower, threatened against or affecting, (i) the Borrower,
the General Partner or any of their Subsidiaries, (ii) the Loan Documents or any
of the transactions contemplated by the Loan Documents or (iii) any of their
assets, in any case before any court or arbitrator or any governmental body,
agency or official which could reasonably be expected to have a Material Adverse
Effect or which in any manner draws into question the validity of this Agreement
or the other Loan Documents.
(b) There are no final nonappealable judgments or decrees in an
aggregate amount of One Million Dollars ($1,000,000) or more entered by a court
or courts of competent jurisdiction against the Borrower or the General Partner
(other than any judgment as to which, and only to the extent, a reputable
insurance company has acknowledged coverage of such claim in writing).
Section IV.6. Compliance with ERISA.
---------------------
(a) Except as previously disclosed to the Lead Agent in writing, each
member of the ERISA Group has fulfilled its obligations under the minimum
funding standards of ERISA and the Internal Revenue Code with respect to each
Plan and is in compliance in all material respects with the presently applicable
provisions of ERISA and the Internal Revenue Code with respect to each Plan. No
member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code in respect of any Plan,
(ii) failed to make any contribution or payment to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan
or Benefit Arrangement, which has resulted or could result in the imposition of
a Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code
81
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
(b) Except for each "employee benefit plan" (as such term is defined
in Section 3(3) of ERISA) that is maintained, or contributed to, by one or more
members of the ERISA Group, no member of the ERISA Group is a "party in
interest" (as such term is defined in Section 3(14) of ERISA or a "disqualified
person" (as such term is defined in Section 4975(e)(2) of the Code) with respect
to any funded employee benefit plan and none of the assets of any such plans
have been invested in a manner that would cause the transactions contemplated by
the Loan Documents to constitute a nonexempt prohibited transaction (as such
term is defined in Section 4975 of the Code or Section 406 of ERISA).
Section IV.7. Environmental Compliance. To the best of Borrower's
------------------------
knowledge, except as set forth in the Phase I environmental report(s) delivered
to and accepted by the Lead Agent with respect to each of the Unencumbered Asset
Pool Properties (as supplemented or amended, the "Environmental Reports"), (i)
---------------------
there are in effect all Environmental Approvals which are required to be
obtained under all Environmental Laws with respect to the Property, except for
such Environmental Approvals the absence of which would not have a Material
Adverse Effect, (ii) the Borrower is in compliance in all material respects with
the terms and conditions of all such Environmental Approvals, and is also in
compliance in all material respects with all other Environmental Laws or any
plan, order, decree, judgment, injunction, notice or demand letter issued,
entered or approved thereunder, except to the extent failure to comply would not
have a Material Adverse Effect.
82
Except as set forth in the Environmental Reports or otherwise
disclosed to the Lead Agent as of the Closing Date, to Borrower's actual
knowledge:
(i) There are no Environmental Claims or investigations
pending or threatened by any Governmental Authority with respect to any
alleged failure by the Borrower to have any Environmental Approval required
in connection with the conduct of the business of the Borrower on any of
the Unencumbered Asset Pool Properties, or with respect to any generation,
treatment, storage, recycling, transportation, Release or disposal of any
Material of Environmental Concern generated by the Borrower or any lessee
on any of the Unencumbered Asset Pool Properties;
(ii) No Material of Environmental Concern has been Released at
the Property to an extent that it may reasonably be expected to have a
Material Adverse Effect;
(iii) No PCB (in amounts or concentrations which exceed those
set by applicable Environmental Laws) is present at any of the Unencumbered
Asset Pool Properties;
(iv) No friable asbestos is present at any of the
Unencumbered Asset Pool Properties;
(v) There are no underground storage tanks for Material of
Environmental Concern, active or abandoned, at any of the Unencumbered
Asset Pool Properties;
(vi) No Environmental Claims have been filed with a
Governmental Authority with respect to any of the Unencumbered Asset Pool
Properties, and none of the Unencumbered Asset Pool Properties is
83
listed or proposed for listing on the National Priority List promulgated
pursuant to CERCLA, on CERCLIS or on any similar state list of sites
requiring investigation or clean-up;
(vii) There are no Liens arising under or pursuant to any
Environmental Laws on any of the Unencumbered Asset Pool Properties, and no
government actions have been taken or are in process which could subject
any of the Unencumbered Asset Pool Properties to such Liens; and
(viii) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by, or which are in the
possession of, the Borrower in relation to any of the Unencumbered Asset
Pool Properties which have not been made available to the Lead Agent.
Section IV.8. Taxes. The initial tax year of the Borrower for
-----
federal income tax purposes was 1996. The federal income tax returns of the
Borrower and its Consolidated Subsidiaries for the fiscal year ended December
31, 1996 have been filed. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary except those being contested in good faith. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of taxes
or other governmental charges are, in the opinion of the Borrower, adequate.
Section IV.9. Full Disclosure. All information heretofore furnished
---------------
by the Borrower to the Lead Agent or any Bank for purposes of or in connection
with this Agreement or any transaction contemplated hereby is true and accurate
in all material respects on the date
84
as of which such information is stated or certified. The Borrower has disclosed
to the Banks in writing any and all facts known to the Borrower which materially
and adversely affect or are likely to materially and adversely affect (to the
extent the Borrower can now reasonably foresee), the business, operations or
financial condition of the Borrower considered as one enterprise or the ability
of the Borrower to perform its obligations under this Agreement or the other
Loan Documents.
Section IV.10. Solvency. On the Closing Date and after giving effect
--------
to the transactions contemplated by the Loan Documents occurring on the Closing
Date, the Borrower is Solvent.
Section IV.11. Use of Proceeds; Margin Regulations. All proceeds of
-----------------------------------
the Loans will be used by the Borrower only in accordance with the provisions
hereof. No part of the proceeds of any Loan will be used by the Borrower to
purchase or carry any Margin Stock or to extend credit to others for the purpose
of purchasing or carrying any Margin Stock. Neither the making of any Loan nor
the use of the proceeds thereof will violate or be inconsistent with the
provisions of Regulations T, U or X of the Federal Reserve Board.
Section IV.12. Governmental Approvals. No order, consent, approval,
----------------------
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with
the execution, delivery and performance of any Loan Document or the consummation
of any of the transactions contemplated thereby other than those that have
already been duly made or obtained and remain in full force and effect.
Section IV.13. Investment Company Act; Public Utility Holding Company
------------------------------------------------------
Act. The Borrower is not (x) an
- ---
85
"investment company" or a company "controlled" by an "investment company",
------------------ ---------- ------------------
within the meaning of the Investment Company Act of 1940, as amended, (y) a
"holding company" or a "subsidiary company" of a "holding company" or an
--------------- ------------------ ---------------
"affiliate" of either a "holding company" or a "subsidiary company" within the
--------- --------------- ------------------
meaning of the Public Utility Holding Company Act of 1935, as amended, or (z)
subject to any other federal or state law or regulation which purports to
restrict or regulate its ability to borrow money.
Section IV.14. Closing Date Transactions. On the Closing Date and
-------------------------
immediately prior to or concurrently with the making of the Loans, the
transactions (other than the making of the Loans) intended to be consummated on
the Closing Date will have been consummated in accordance with all applicable
laws. On or prior to the Closing Date, all consents and approvals of, and
filings and registrations with, and all other actions by, any Person required in
order to make or consummate such transactions have been obtained, given, filed
or taken and are in full force and effect.
Section IV.15. Representations and Warranties in Loan Documents. All
------------------------------------------------
representations and warranties made by the Borrower in the Loan Documents are
true and correct in all material respects.
Section IV.16. Patents, Trademarks, etc. The Borrower has obtained
-------------------------
and holds in full force and effect all patents, trademarks, service marks, trade
names, copyrights and other such rights, free from burdensome restrictions,
which are necessary for the operation of its business as presently conducted,
the impairment of which is likely to have a Material Adverse Effect. To the
Borrower's knowledge, no material product, process, method, substance, part or
other material presently sold by or employed by the Borrower in connection with
such business infringes any patent, trademark, service mark,
86
trade name, copyright, license or other such right owned by any other Person.
There is not pending or, to the Borrower's knowledge, threatened any claim or
litigation against or affecting the Borrower contesting its right to sell or use
any such product, process, method, substance, part or other material.
Section IV.17. No Default. No Default or Event of Default exists
----------
under or with respect to any Loan Document. The Borrower is not in default in
any material respect beyond any applicable grace period under or with respect to
any other material agreement, instrument or undertaking to which it is a party
or by which it or any of its property is bound in any respect, the existence of
which default is likely (to the extent that the Borrower can now reasonably
foresee) to result in a Material Adverse Effect.
Section IV.18. Licenses, etc. The Borrower has obtained and holds in
--------------
full force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way and
other consents and approvals which are necessary for the operation of its
businesses as presently conducted, the absence of which is likely (to the extent
that the Borrower can now reasonably foresee) to have a Material Adverse Effect.
Section IV.19. Compliance With Law. The Borrower is in compliance
-------------------
with all laws, rules, regulations, orders, judgments, writs and decrees,
including, without limitation, all building and zoning ordinances and codes, the
failure to comply with which is likely (to the extent that the Borrower can now
reasonably foresee) to have a Material Adverse Effect.
Section IV.20. No Burdensome Restrictions. The Borrower is not a
--------------------------
party to any agreement or instrument or subject to any other obligation or any
charter
87
or corporate or partnership restriction, as the case may be, which, individually
or in the aggregate, is likely (to the extent that the Borrower can now
reasonably foresee) to have a Material Adverse Effect.
Section IV.21. Brokers' Fees. The Borrower has not dealt with any
-------------
broker or finder with respect to the transactions contemplated by the Loan
Documents (except with respect to the acquisition or disposition of Real
Property Assets) or otherwise in connection with this Agreement, and the
Borrower has not done any acts, had any negotiations or conversation, or made
any agreements or promises which will in any way create or give rise to any
obligation or liability for the payment by the Borrower of any brokerage fee,
charge, commission or other compensation to any party with respect to the
transactions contemplated by the Loan Documents (except with respect to the
acquisition or disposition of Real Property Assets), other than the fees payable
hereunder.
Section IV.22. Labor Matters. Except as set forth on Schedule 4.22
------------- -------------
attached hereto and made a part hereof, there are no collective bargaining
agreements or Multiemployer Plans covering the employees of the Borrower and the
Borrower has not suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five (5) years.
Section IV.23. Organizational Documents. The documents delivered
------------------------
pursuant to Section 3.1(e) constitute, as of the Closing Date, all of the
organizational documents (together with all amendments and modifications
thereof) of the Borrower. The Borrower represents that it has delivered to the
Lead Agent true, correct and complete copies of each of the documents set forth
in this Section 4.23.
Section IV.24. Principal Offices. The principal office, chief
-----------------
executive office and principal
88
place of business of the Borrower is 2250 East Imperial Highway, Suite 1200, El
Segundo, California 90245.
Section IV.25. REIT Status. For the fiscal year ended December 31,
-----------
1999, the General Partner will qualify, and the General Partner intends to
continue to qualify as a real estate investment trust under the Code.
Section IV.26. Ownership of Property. The Borrower owns fee simple
---------------------
title to or a ground leasehold interest in each of the Unencumbered Asset Pool
Properties.
Section IV.27. Insurance. The Borrower currently maintains insurance
---------
at 100% replacement cost insurance coverage in respect of each of the Real
Property Assets, as well as comprehensive general liability insurance (including
"builders' risk") against claims for personal, and bodily injury and/or death,
to one or more persons, or property damage, as well as workers' compensation
insurance, in each case with respect to the Real Property Assets with insurers
having an A.M. Best policyholders' rating of not less than A-VIII in amounts
that prudent owner of assets such as the Real Property Assets would maintain.
Section IV.28. Year 2000 Compliance. The Borrower has conducted a
--------------------
comprehensive review and assessment of its computer applications and has made
such inquiry as it determined to be advisable of its key suppliers, vendors and
customers or prospects with respect to the "year 2000 problem" (i.e., the risk
----
that computer applications may not be able to properly perform date-sensitive
functions after December 31, 1999) and, based on that review and inquiry,
Borrower believes that the year 2000 problem will not result in a Material
Adverse Effect.
89
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Bank has any
Commitment hereunder or any Obligations remain unpaid:
Section V.1. Information. The Borrower will deliver to the Lead
-----------
Agent and to each of the Banks:
(a) as soon as available and in any event within 105 days after the
end of each fiscal year of the Borrower, an audited consolidated balance sheet
of the Borrower as of the end of such fiscal year and the related consolidated
statements of cash flow and operations for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, audited
by Delloite & Touche or other independent public accountants of similar
standing;
(b) as soon as available and in any event within sixty (60) days after
the end of each quarter of each fiscal year (other than the last quarter in any
fiscal year) of the Borrower, a statement of the Borrower, prepared in
accordance with GAAP, setting forth the operating income and operating expenses
of the Borrower, in sufficient detail so as to calculate Unencumbered Asset Pool
Net Operating Cash Flow of the Borrower for the immediately preceding quarter;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer or the chief accounting officer of the Borrower (i) setting
forth in reasonable detail the calculations required to establish whether the
Borrower was in compliance with the requirements of Section 5.8 on the date
90
of such financial statements;(ii) stating whether any Default exists on the date
of such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto; and (iii) certifying (x) that such financial statements fairly
present the financial condition and the results of operations of the Borrower as
of the dates and for the periods indicated, in accordance with GAAP, subject, in
the case of interim financial statements, to normal year-end adjustments, and
(y) that such officer has reviewed the terms of the Loan Documents and has made,
or caused to be made under his or her supervision, a review in reasonable detail
of the business and condition of the Borrower during the period beginning on the
date through which the last such review was made pursuant to this Section 5.1(c)
and ending on a date not more than ten (10) Domestic Business Days prior to the
date of such delivery and that on the basis of such review of the Loan Documents
and the business and condition of the Borrower, to the best knowledge of such
officer, no Default or Event of Default under any other provision of Section 6.1
occurred or, if any such Default or Event of Default has occurred, specifying
the nature and extent thereof and, if continuing, the action the Borrower
proposes to take in respect thereof;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of a firm of independent
public accountants confirming the calculations set forth in the officer's
certificate delivered simultaneously therewith pursuant to clause (c) above;
(e) (i) within five (5) days after the president, chief financial
officer, treasurer, controller or other executive officer of the Borrower
obtains knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the
91
president of the Borrower setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto; (ii) promptly
and in any event within ten (10) days after the Borrower obtains knowledge
thereof, notice of (x) any litigation or governmental proceeding pending or
threatened against the Borrower which is likely to individually or in the
aggregate, result in a Material Adverse Effect, and (y) any other event, act or
condition which is likely to result in a Material Adverse Effect;
(f) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could re-
92
sult in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Borrower setting forth details as to such occurrence and action, if any,
which the Borrower or applicable member of the ERISA Group is required or
proposes to take;
(g) promptly and in any event within five (5) Domestic Business Days
after the Borrower obtains actual knowledge of any of the following events, a
certificate of the Borrower executed by an officer of the Borrower specifying
the nature of such condition and the Borrower's, and if the Borrower has actual
knowledge thereof, the Environmental Affiliate's proposed initial response
thereto: (i) the receipt by the Borrower, or, if the Borrower has actual
knowledge thereof, any of the Environmental Affiliates, of any communication
(written or oral), whether from a governmental authority, citizens group,
employee or otherwise, that alleges that the Borrower, or, if the Borrower has
actual knowledge thereof, any of the Environmental Affiliates, is not in
compliance with applicable Environmental Laws, and such noncompliance is likely
to have a Material Adverse Effect, (ii) the Borrower shall obtain actual
knowledge that there exists any Environmental Claim which is likely to have a
Material Adverse Effect pending or threatened against the Borrower or any
Environmental Affiliate or (iii) the Borrower obtains actual knowledge of any
release, emission, discharge or disposal of any Material of Environmental
Concern that is likely to form the basis of any Environmental Claim against the
Borrower or any Environmental Affiliate;
(h) promptly and in any event within five (5) Domestic Business Days
after receipt of any material notices or correspondence from any company or
agent for any company providing insurance coverage to the Borrower relating to
any material loss or loss of the Borrower
93
with respect to any of the Unencumbered Asset Pool Properties, copies of such
notices and correspondence; and
(i) promptly upon the mailing thereof to the shareholders or partners
of the Borrower, copies of all financial statements, reports and proxy statement
so mailed;
(j) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower shall have filed with the Securities and
Exchange Commission;
(k) simultaneously with delivery of the information required by
Sections 5.1(a) and (b), a statement of Unencumbered Asset Pool Net Operating
Cash Flow with respect to each Mortgaged Property and a list of all Unencumbered
Asset Pool Properties; and
(l) from time to time such additional information regarding the
financial position or business of the Borrower as the Lead Agent, at the request
of any Bank, may reasonably request.
Section V.2. Payment of Obligations. The Borrower will pay and
----------------------
discharge, at or before maturity, all its material obligations and liabilities
including, without limitation, any obligation pursuant to any agreement by which
it or any of its properties is bound and any tax liabilities, in any case, where
failure to do so will likely result in a Material Adverse Effect except (i) such
tax liabilities may be contested in good faith by appropriate proceedings, and
will maintain in accordance with GAAP, appropriate reserves for the accrual of
any of the same; or (ii) such obligation or liability as may be contested in
good faith by appropriate proceedings.
94
Section V.3. Maintenance of Property; Insurance.
----------------------------------
(a) The Borrower will keep each of the Unencumbered Asset Pool
Properties in good repair, working order and condition, subject to ordinary wear
and tear.
(b) The Borrower shall (a) maintain insurance as specified in Section
4.27 hereof with insurers meeting the qualifications described therein, which
insurance shall in any event not provide for materially less coverage than the
insurance in effect on the Closing Date, and (b) furnish to each Bank from time
to time, upon written request, copies of the policies under which such insurance
is issued, certificates of insurance and such other information relating to such
insurance as such Bank may reasonably request. The Borrower will deliver to the
Banks (i) upon request of any Bank through the Lead Agent from time to time,
full information as to the insurance carried, (ii) within five (5) days of
receipt of notice from any insurer, a copy of any notice of cancellation or
material change in coverage from that existing on the date of this Agreement and
(iii) forthwith, notice of any cancellation or nonrenewal of coverage by the
Borrower.
Section V.4. Conduct of Business. The Borrower's primary business
-------------------
will continue to be acquiring, owning, operating, managing, developing (to the
extent permitted in this Agreement), and leasing office and industrial
properties.
Section V.5. Compliance with Laws. The Borrower will comply in all
--------------------
material respects with all applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities (including, without limitation,
Environmental Laws, all zoning and building codes and ERISA and the rules and
regulations thereunder) except where the necessity of compliance
95
therewith is contested in good faith by appropriate proceedings.
Section V.6. Inspection of Property, Books and Records. The Borrower
-----------------------------------------
will keep proper books of record and account in which full, true and correct
entries shall be made of all dealings and transactions in relation to its
business and activities; and will permit representatives of any Bank at such
Bank's expense to visit and inspect any of its properties to examine and make
abstracts from any of its books and records and to discuss its affairs, finances
and accounts with its officers and employees, all at such reasonable times, upon
reasonable notice, and as often as may reasonably be desired.
Section V.7. Existence.
---------
(a) The Borrower shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence or its
partnership existence, as applicable.
(b) The Borrower shall do or cause to be done all things necessary to
preserve and keep in full force and effect its patents, trademarks,
servicemarks, tradenames, copyrights, franchises, licenses, permits,
certificates, authorizations, qualifications, accreditations, easements, rights
of way and other rights, consents and approvals the nonexistence of which is
likely to have a Material Adverse Effect.
Section V.8. Financial Covenants.
-------------------
(a) Total Liabilities to Total Asset Value. As of the last day of
--------------------------------------
each calendar quarter, the Total Debt Ratio will not be greater than 55%.
96
(b) EBITDA Debt Service Coverage. As of the last day of each calendar
----------------------------
quarter, the ratio of (i) Annual EBITDA to (ii) Total Debt Service, will not be
less than 2.0:1.0.
(c) Fixed Charge Coverage. As of the last day of each calendar
---------------------
quarter, the ratio of (x) Annual EBITDA, less reserves for Capital Expenditures
of $.70 per square foot per annum for each Real Property Asset that is an office
property and $.40 per square foot per annum for each Real Property Asset that is
an industrial property to (y) the sum of (i) Total Debt Service, and (ii)
dividends or other payments payable by the General Partner with respect to any
preferred stock issued by the General Partner and distributions or other
payments payable by the Borrower with respect to any preferred partnership units
of the Borrower, will not be less than 1.5:1.0.
(d) Limitation on Secured Debt. Secured Debt of the Borrower, the
--------------------------
General Partner and their Consolidated Subsidiaries shall at no time exceed
thirty-five percent (35%) of Total Asset Value.
(e) Unsecured Debt Ratio. As of each of (x) the last day of each
--------------------
calendar quarter, and (y) any Borrowing, the Unsecured Debt Ratio shall exceed
2.0:1.0.
(f) Unencumbered Asset Pool Debt Service Coverage. As of the last day
---------------------------------------------
of each calendar quarter and as of the date of any sale or secured financing of
any Unencumbered Asset Pool Property, the ratio of (i) Unencumbered Asset Pool
Net Operating Cash Flow to (ii) Pro-Forma Debt Service will not be less than
2.0:1.0.
(g) Dividends. The Borrower will not, as determined on an aggregate
---------
annual basis, pay any partnership distributions in excess of the greater of (i)
95% of its consolidated FFO for such year, and (ii) an
97
amount which results in distributions to the General Partner in an amount
sufficient to permit the General Partner to pay dividends to its shareholders
which it reasonably believes are necessary for it to (A) maintain its
qualification as a real estate investment trust for federal and state income tax
purposes, and (B) avoid the payment of federal or state income or excise tax.
During the continuance of an Event of Default under Section 6.1(a), the Borrower
shall make only those partnership distributions necessary to make distributions
to the General Partner to pay dividends to its shareholders which it reasonably
believes are necessary to maintain its status as a real estate investment trust
for federal and state income tax purposes.
(h) Minimum Consolidated Tangible Net Worth. The Consolidated
---------------------------------------
Tangible Net Worth will at no time be less than the sum of (i) $575,000,000 plus
(ii) 90% of all Net Offering Proceeds.
(i) Debt. Prior to the date on which the Borrower receives an
----
Investment Grade Rating from either S&P or Moody's, neither the Borrower nor the
General Partner shall, at any time, create, incur, assume, guaranty, suffer to
exist or otherwise become or remain directly or indirectly liable with respect
to any Debt other than Non-Recourse Debt. Notwithstanding the provisions of the
sentence immediately foregoing, the Borrower shall have the right to incur
Recourse Debt (A) up to an aggregate maximum of $5,000,000 which is either (i)
unsecured or (ii) incurred with respect to assets which are not Unencumbered
Asset Pool Properties and is subject to a purchase money security interest or
security interest under a conditional sale agreement, and (B) up to an aggregate
maximum of $50,000,000, which is secured and which is incurred in connection
with the financing of construction costs.
98
Section V.9. Restriction on Fundamental Changes; Operation and
-------------------------------------------------
Control. (a) The Borrower shall not enter into any merger or consolidation,
- -------
unless the Borrower is the surviving entity, or liquidate, wind-up or dissolve
(or suffer any liquidation or dissolution), discontinue its business or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, any substantial part of its business or property, whether now or
hereafter acquired, hold an interest in any subsidiary which is not controlled
by the Borrower or the General Partner or enter into other business lines,
without the prior written consent of the Lead Agent, which consent shall not be
given unless the Required Banks so consent.
(b) The Borrower shall not amend its articles of incorporation, by-
laws or agreement of limited partnership, as applicable, in any material respect
which is reasonably likely to have an adverse effect on the Banks, without the
Lead Agent's consent, which shall not be unreasonably withheld or delayed.
Section V.10. Changes in Business. The Borrower shall not enter into
-------------------
any business which is substantially different from that conducted by the
Borrower on the Closing Date after giving effect to the transactions
contemplated by the Loan Documents.
Section V.11. Sale of Unencumbered Asset Pool Properties. Prior to
------------------------------------------
the sale or transfer of any Unencumbered Asset Pool Property, the Borrower shall
(i) deliver prior written notice to the Lead Agent, (ii) deliver to the Lead
Agent a certificate from its chief financial officer or chief accounting officer
certifying that at the time of such sale or other disposal (based on pro-forma
calculations for the previous period assuming that such Unencumbered Asset Pool
Property was not a Unencumbered Asset Pool Property for the relevant period) all
of the covenants contained in Sections 5.8,
99
5.14, 5.16, 5.17 and 5.20 are and after giving effect to the transaction shall
continue to be true and accurate in all respects, and (iii) pay to the Lead
Agent an amount equal to that required pursuant to Section 2.10(a). In the event
that a Separate Parcel that originally formed a part of a Unencumbered Asset
Pool Property is to be sold or transferred, the value of the remaining portion
of the Unencumbered Asset Pool Property will be determined by Lead Agent at the
time of sale or transfer in its sole discretion.
Section V.12. Fiscal Year; Fiscal Quarter. The Borrower shall not
---------------------------
change its fiscal year or any of its fiscal quarters without the Lead Agent's
consent, which shall not be unreasonably withheld or delayed.
Section V.13. Margin Stock. None of the proceeds of the Loan will be
------------
used, directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any Margin Stock.
Section V.14. Development Activities. The Borrower shall not engage
----------------------
in any development activities except for development in connection with the
expansion and/or repositioning or restoration following a casualty or
condemnation of existing improvements on Real Property Assets. Notwithstanding
the foregoing, the Borrower may engage in all other development activities where
there is construction completion risk provided that in no event shall the value
(determined in accordance with the book value thereof, in accordance with GAAP)
of the Real Property Assets under such other type of development exceed twenty
percent (20%) of the Borrower's Total Asset Value.
Section V.15. Interest Rate Protection. On or before the date that
------------------------
is the six (6) month anniversary of the date hereof, the Borrower and the
General Partner shall maintain Interest Rate Hedges on a notional amount
100
of the Debt under clause (A) of the definition of Debt of the Borrower, the
General Partner and their Subsidiaries which, when added to the aggregate
principal amount of the Debt under clause (A) of the definition of Debt of the
Borrower, the General Partner and their Subsidiaries which bears interest at a
fixed rate, equals or exceeds 50% of the aggregate principal amount of all Debt
under clause (A) of the definition of Debt of the Borrower, the General Partner
and their Subsidiaries. "Interest Rate Hedges" shall mean interest rate
--------------------
exchange, collar, cap, swap, adjustable strike cap, adjustable strike corridor
or similar agreements having terms, conditions and tenors reasonably acceptable
to the Lead Agent entered into by the Borrower, the General Partner and/or their
Subsidiaries in order to provide protection to, or minimize the impact upon, the
Borrower, the General Partner and/or their Subsidiaries of increasing floating
rates of interest applicable to Debt under clause (A) of the definition of Debt.
Section V.16. Joint Ventures. The value of the Borrower's and the
--------------
General Partner's interest in any joint venture, whether consolidated or
unconsolidated, shall at no time exceed 15% of Total Asset Value.
Section V.17. Investments in Unimproved Real Property. The aggregate
---------------------------------------
amount of the investments of the Borrower, the General Partner and their
Consolidated Subsidiaries in unimproved real property will at no time exceed
7.5% of Total Asset Value.
Section V.18. Use of Proceeds. The Borrower shall use the proceeds
---------------
of the Loans solely to finance the acquisition of additional Unencumbered Asset
Pool Properties or other Real Property Assets which are industrial or office
properties and for its general business purposes.
101
Section V.19. General Partner Status. The General Partner shall at
----------------------
all times (i) maintain its status as a self-directed and self-administered real
estate investment trust under the Internal Revenue Code, and (ii) remain a
publicly traded company listed on the New York Stock Exchange.
Section V.20. Certain Requirements for the Unencumbered Asset Pool.
----------------------------------------------------
(a) At all times, (i) the Real Property Assets in the Unencumbered Asset Pool
shall be on average during any consecutive twelve-month period (tested
quarterly) at least 85% leased to tenants and (ii) any Real Property Asset that
is a part of the Unencumbered Asset Pool less than 85% leased to tenants for
more than twelve months shall not account for more than ten percent (10%) of the
Unencumbered Asset Pool Properties Value.
(b) Any Subsidiary which owns any of the Real Property Assets in the
Unencumbered Asset Pool shall not at any time incur any Debt, nor shall the
Borrower pledge its interest in such Subsidiary nor shall the Borrower or such
Subsidiary enter into any negative pledge with respect thereto.
ARTICLE VI
DEFAULTS
Section VI.1. Events of Default. Each of the following shall
-----------------
constitute an event of default under this Agreement (an "Event of Default"):
----------------
(a) the Borrower shall fail to pay when due any principal of any Loan,
or the Borrower shall fail to pay when due any interest on any Loan; provided,
--------
however, that the Borrower shall be entitled to a three (3) Domestic Business
- -------
Day grace period with respect thereto
102
but only as to two (2) payments of interest during the Term, or the Borrower
shall fail to pay within three (3) Domestic Business Days after the same is due
any fees or other amounts payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.8 to 5.20, inclusive, subject to any applicable grace
periods set forth therein;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for 30 days after written notice thereof has been given to the
Borrower by the Lead Agent;
(d) any representation, warranty, certification or statement made by
the Borrower in this Agreement or in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made (or deemed made);
(e) the Borrower or the General Partner shall default in the payment
when due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) of any amount owing in respect of any Recourse Debt or Debt
guaranteed by the Borrower or the General Partner (other than the Obligations)
in an aggregate principal amount of more than $1,000,000 and such default shall
continue beyond the giving of any required notice and the expiration of any
applicable grace period (as the same may be extended by the applicable lender)
and such default shall not be waived by the applicable lender (which waiver
shall serve to reinstate the applicable loan), or the Borrower or the General
Partner shall default in the performance or observance of any obligation or
condition with respect to any such Debt or any other event shall occur or
condition
103
exist beyond the giving of any required notice and the expiration of any
applicable grace period (as the same may be extended by the applicable lender),
if in any such case as a result of such default, event or condition, the lender
thereof shall accelerate the maturity of any such Debt or to permit (without any
further requirement of notice or lapse of time) the holder or holders thereof,
or any trustee or agent for such holders, to accelerate the maturity of any such
Debt and such default shall not be waived by the applicable lender (which waiver
shall serve to reinstate the applicable loan), or any such Debt shall become or
be declared to be due and payable prior to its stated maturity other than as a
result of a regularly scheduled payment;
(f) the Borrower or the General Partner shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;
(g) an involuntary case or other proceeding shall be commenced against
the Borrower or the General Partner seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official
104
of it or any substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against the Borrower or the General
Partner under the federal bankruptcy laws as now or hereafter in effect;
(h) the Borrower shall default in its obligations under any Loan
Document other than this Agreement beyond any applicable notice and grace
periods;
(i) the General Partner shall default in its obligations under the
Guaranty beyond any applicable notice and grace periods;
(j) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $1,000,000 which it shall have become liable
to pay under Title IV of ERISA, or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing, or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material Plan, or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated, or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $1,000,000;
(k) one or more final nonappealable judgments or decrees in an
aggregate amount of $10,000,000 as of such date shall be entered by a court or
courts of com-
105
petent jurisdiction against the Borrower or the General Partner (other than any
judgment as to which, and only to the extent, a reputable insurance company has
acknowledged coverage of such claim in writing) and (i) any such judgments or
decrees shall not be stayed, discharged, paid, bonded or vacated within thirty
(30) days (or bonded, vacated or satisfied within thirty (30) after any stay is
lifted) or (ii) enforcement proceedings shall be commenced by any creditor on
any such judgments or decrees;
(l) (i) any Environmental Claim shall have been asserted against the
Borrower or any Environmental Affiliate, (ii) any release, emission, discharge
or disposal of any Material of Environmental Concern shall have occurred, and
such event is reasonably likely to form the basis of an Environmental Claim
against the Borrower or any Environmental Affiliate, or (iii) the Borrower or
the Environmental Affiliates shall have failed to obtain any Environmental
Approval necessary for the ownership, or operation of its business, property or
assets or any such Environmental Approval shall be revoked, terminated, or
otherwise cease to be in full force and effect, in the case of clauses (i), (ii)
or (iii) above, if the existence of such condition has had or is reasonably
likely to have a Material Adverse Effect;
(m) during any consecutive two year period commencing on or after the
date hereof, individuals who at the beginning of such period constituted the
Board of Directors of the General Partner of the Borrower (together with any new
directors whose election by the Board of Directors or whose nomination for
election by the General Partner stockholders was approved by a vote of at least
a majority of the members of the Board of Directors then in the office who
either were members of the Board of Directors at the beginning of such period or
whose election or nomination for election was previ-
106
ously so approved) cease for any reason to constitute a majority of the members
of the Board of Directors then in office;
(n) the General Partner shall cease at any time to qualify as a real
estate investment trust under the Internal Revenue Code; and
(o) at any time, for any reason, the Borrower or the General Partner
seeks to repudiate its obligations under any Loan Document.
Section VI.2. Rights and Remedies. (a) Upon the occurrence of any
-------------------
Event of Default described in Sections 6.1(f) or (g), the unpaid principal
amount of, and any and all accrued interest on, the Loans and any and all
accrued fees and other Obligations hereunder shall automatically become
immediately due and payable, with all additional interest from time to time
accrued thereon and without presentation, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and notice of acceleration), all of which are hereby expressly waived by the
Borrower; and upon the occurrence and during the continuance of any other Event
of Default, the Lead Agent may exercise any of its rights and remedies hereunder
and by written notice to the Borrower, declare the unpaid principal amount of
and any and all accrued and unpaid interest on the Loans and any and all accrued
fees and other Obligations hereunder to be, and the same shall thereupon be,
immediately due and payable with all additional interest from time to time
accrued thereon and without presentation, demand, or protest or other
requirements of any kind other than as provided in the Loan Documents
(including, without limitation, valuation and appraisement, diligence,
presentment, and notice of intent to demand or accelerate), all of which are
hereby expressly waived by the Borrower.
107
(b) Notwithstanding the foregoing, upon the occurrence and during the
continuance of any Event of Default other than any Event of Default described in
Sections 6.1(f) or (g), the Lead Agent shall not exercise any of its rights and
remedies hereunder nor declare the unpaid principal amount of and any and all
accrued and unpaid interest on the Loans and any and all accrued fees and other
Obligations hereunder to be immediately due and payable, until such time as the
Lead Agent shall have delivered a notice to the Banks specifying the Event of
Default which has occurred and whether Lead Agent recommends the acceleration of
the Obligations due hereunder or the exercise of other remedies hereunder. The
Banks shall notify the Lead Agent if they approve or disapprove of the
acceleration of the Obligations due hereunder or the exercise of such other
remedy recommended by Lead Agent within five (5) Domestic Business Days after
receipt of such notice. If any Bank shall not respond within such five (5)
Domestic Business Day period, then such Bank shall be deemed to have accepted
Lead Agent's recommendation for acceleration of the Obligations due hereunder or
the exercise of such other remedy. If the Required Banks shall approve the
acceleration of the Obligations due hereunder or the exercise of such other
remedy, then Lead Agent shall declare the unpaid principal amount of and any and
all accrued and unpaid interest on the Loans and any and all accrued fees and
other Obligations hereunder to be immediately due and payable or exercise such
other remedy approved by the Required Banks. If the Required Banks shall
neither approve nor disapprove the acceleration of the Obligations due hereunder
or such other remedy recommended by Lead Agent, then Lead Agent may accelerate
the Obligations due hereunder or exercise any of its rights and remedies
hereunder in its sole discretion. If the Required Banks shall disapprove the
acceleration of the Obligations due hereunder or the exercise of such other
remedy recommended by Lead Agent, but approve of another remedy, then to the
extent permitted hereunder,
108
Lead Agent shall exercise such remedy. In the event the Lead Agent exercises any
remedy provided in any of the Loan Documents, the Lead Agent shall act as a
collateral agent for the Banks.
Section VI.3. Notice of Default. If the Lead Agent shall not already
-----------------
have given any notice to the Borrower under Section 6.1, the Lead Agent shall
give notice to the Borrower under Section 6.1 promptly upon being requested to
do so by the Required Banks and shall thereupon notify all the Banks thereof.
Section VI.4. Actions in Respect of Letters of Credit. (a) If, at
---------------------------------------
any time and from time to time, any Letter of Credit shall have been issued
hereunder and an Event of Default shall have occurred and be continuing, then,
upon the occurrence and during the continuation thereof, the Lead Agent may,
whether in addition to the taking by the Lead Agent of any of the actions
described in this Article or otherwise, make a demand upon the Borrower to, and
forthwith upon such demand (but in any event within ten (10) days after such
demand) the Borrower shall, pay to the Lead Agent, on behalf of the Banks, in
same day funds at the Lead Agent's office designated in such demand, for deposit
in a special cash collateral account (the "Letter of Credit Collateral Account")
-----------------------------------
to be maintained in the name of the Lead Agent (on behalf of the Banks) and
under its sole dominion and control at such place as shall be designated by the
Lead Agent, an amount equal to the amount of the Letter of Credit Usage under
the Letters of Credit. Interest shall accrue on the Letter of Credit Collateral
Account at a rate equal to the rate on overnight funds.
(b) The Borrower hereby pledges, assigns and grants to the Lead Agent,
as administrative agent for its benefit and the ratable benefit of the Banks a
lien
109
on and a security interest in, the following collateral (the "Letter of
---------
Credit Collateral"):
- -----------------
(i) the Letter of Credit Collateral Account, all cash deposited
therein and all certificates and instruments, if any, from time to time
representing or evidencing the Letter of Credit Collateral Account;
(ii) all notes, certificates of deposit and other instruments
from time to time hereafter delivered to or otherwise possessed by the Lead
Agent for or on behalf of the Borrower in substitution for or in respect of
any or all of the then existing Letter of Credit Collateral;
(iii) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the then existing Letter of
Credit Collateral; and
(iv) to the extent not covered by the above clauses, all
proceeds of any or all of the foregoing Letter of Credit Collateral.
The lien and security interest granted hereby secures the payment of all
obligations of the Borrower now or hereafter existing hereunder and under any
other Loan Document.
(c) The Borrower hereby authorizes the Lead Agent for the ratable
benefit of the Banks to apply, from time to time after funds are deposited in
the Letter of Credit Collateral Account, funds then held in the Letter of Credit
Collateral Account to the payment of any amounts, in such order as the Lead
Agent may elect, as shall have become due and payable by the Borrower to the
Banks in respect of the Letters of Credit.
110
(d) Neither the Borrower nor any Person claiming or acting on behalf
of or through the Borrower shall have any right to withdraw any of the funds
held in the Letter of Credit Collateral Account, except as provided in Section
6.4(h) hereof.
(e) The Borrower agrees that it will not (i) sell or otherwise dispose
of any interest in the Letter of Credit Collateral or (ii) create or permit to
exist any lien, security interest or other charge or encumbrance upon or with
respect to any of the Letter of Credit Collateral, except for the security
interest created by this Section 6.4.
(f) If any Event of Default shall have occurred and be continuing:
(i) The Lead Agent may, in its sole discretion, without
notice to the Borrower except as required by law and at any time from time
to time, charge, set off or otherwise apply all or any part of first, (x)
-----
amounts previously drawn on any Letter of Credit that have not been
reimbursed by the Borrower and (y) any Letter of Credit Usage described in
clause (ii) of the definition thereof that are then due and payable and
second, any other unpaid Obligations then due and payable against the
------
Letter of Credit Collateral Account or any part thereof, in such order as
the Lead Agent shall elect. The rights of the Lead Agent under this
Section 6.4 are in addition to any rights and remedies which any Bank may
have.
(ii) The Lead Agent may also exercise, in its sole discretion,
in respect of the Letter of Credit Collateral Account, in addition to the
other rights and remedies provided herein or otherwise available to it, all
the rights and remedies of a
111
secured party upon default under the Uniform Commercial Code in effect in
the State of New York at that time.
(g) The Lead Agent shall be deemed to have exercised reasonable care
in the custody and preservation of the Letter of Credit Collateral if the Letter
of Credit Collateral is accorded treatment substantially equal to that which the
Lead Agent accords its own property, it being understood that, assuming such
treatment, the Lead Agent shall not have any responsibility or liability with
respect thereto.
(h) At such time as all Events of Default have been cured or waived in
writing, all amounts remaining in the Letter of Credit Collateral Account shall
be promptly returned to the Borrower. Absent such cure or written waiver, any
surplus of the funds held in the Letter of Credit Collateral Account and
remaining after payment in full of all of the Obligations of the Borrower
hereunder and under any other Loan Document after the Maturity Date shall be
paid to the Borrower or to whomsoever may be lawfully entitled to receive such
surplus.
ARTICLE VII
THE LEAD AGENT
Section VII.1. Appointment and Authorization. Each Bank irrevocably
-----------------------------
appoints and authorizes the Lead Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Lead Agent by the terms hereof or thereof,
together with all such powers as are reasonably incidental thereto.
112
Section VII.2. Lead Agent and Affiliates. Morgan shall have the same
-------------------------
rights and powers under this Agreement as any other Bank and may exercise or
refrain from exercising the same as though it were not the Lead Agent, and
Morgan and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any subsidiary or affiliate
of the Borrower as if it were not the Lead Agent hereunder, and the term "Bank"
and "Banks" shall include Morgan in its individual capacity.
Section VII.3. Action by Lead Agent. The obligations of the Lead
--------------------
Agent hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Lead Agent shall not be required to take any
action with respect to any Default, except as expressly provided in Article VI.
Section VII.4. Consultation with Experts. The Lead Agent may consult
-------------------------
with legal counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
Section VII.5. Liability of Lead Agent. Neither the Lead Agent nor
-----------------------
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the Required Banks or, where
required by the terms of this Agreement, all of the Banks, or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Lead
Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with this Agreement or
any
113
borrowing hereunder; (ii) the performance or observance of any of the covenants
or agreements of the Borrower; (iii) the satisfaction of any condition specified
in Article III, except receipt of items required to be delivered to the Lead
Agent; or (iv) the validity, effectiveness or genuineness of this Agreement, the
other Loan Documents or any other instrument or writing furnished in connection
herewith. The Lead Agent shall not incur any liability by acting in reliance
upon any notice, consent, certificate, statement, or other writing (which may be
a bank wire, telex or similar writing) believed by it in good faith to be
genuine or to be signed by the proper party or parties.
Section VII.6. Indemnification. Each Bank shall, ratably in
---------------
accordance with its Commitment, indemnify the Lead Agent, its affiliates and
their respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur as a result of, or in connection with, the Lead
Agent's capacity as Lead Agent in connection with this Agreement, the other Loan
Documents or any action taken or omitted by such indemnitees in accordance with
this Agreement.
Section VII.7. Credit Decision. Each Bank acknowledges that it has,
---------------
independently and without reliance upon the Lead Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Lead
Agent or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Agreement.
114
Section VII.8. Successor Lead Agent. The Lead Agent may resign at
--------------------
any time by giving notice thereof to the Banks and the Borrower. In addition,
if the Lead Agent at any time shall have been finally determined to have
committed gross negligence or willful misconduct in connection with its
performance of its duties as Lead Agent hereunder, then, upon notice from the
Required Banks, the Lead Agent shall resign. Upon any such resignation, the
Required Banks shall have the right to appoint a successor Lead Agent with the
consent of the Borrower provided that no Event of Default shall have occurred
and be continuing. If no successor Lead Agent shall have been so appointed by
the Required Banks, and shall have accepted such appointment, within 30 days
after the retiring Lead Agent gives notice of resignation, then the retiring
Lead Agent may, on behalf of the Banks, appoint a successor Lead Agent, which
shall be a commercial bank organized or licensed under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of its appointment as the
Lead Agent hereunder by a successor Lead Agent, such successor Lead Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring Lead Agent, and the retiring Lead Agent shall be discharged from its
duties and obligations hereunder first accruing or arising after the effective
date of such retirement. After any retiring Lead Agent's resignation hereunder
as Lead Agent, the provisions of this Article shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was the Lead Agent.
If, at any time during the Term, the Lead Agent shall no longer have
any Commitment under this Agreement, the Lead Agent shall give notice of its
offer to resign to the Banks and the Borrower. Upon any such offer of
resignation, the Required Banks shall have the
115
right to appoint a successor Lead Agent or to retain the Lead Agent with the
consent of the Borrower, provided that no Event of Default shall be outstanding.
Section VII.9. Lead Agent's Fee. The Borrower shall pay to the Lead
----------------
Agent for its own account fees in the amounts and at the times previously agreed
upon between the Borrower and the Lead Agent.
Section VII.10. Copies of Notices. Lead Agent shall deliver to each
-----------------
Bank a copy of any notice sent to the Borrower by Lead Agent in connection with
the performance of its duties as Lead Agent hereunder; and Lead Agent shall
deliver to each Bank a copy of any notice sent to the Lead Agent by the Borrower
in connection with any Default or Event of Default hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section VIII.1. Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. If on or prior to the first day of any Interest Period for any Euro-
- ------
Dollar Borrowing or Money Market Borrowing:
(a) the Lead Agent is advised by the Reference Bank that deposits in
dollars (in the applicable amounts) are not being offered to the Reference Bank
in the relevant market for such Interest Period, or
(b) Banks having 50% or more of the aggregate amount of the affected
Loans advise the Lead Agent that the Adjusted London Interbank Offered Rate as
determined by the Lead Agent will not adequately and fairly reflect the cost to
such Banks of funding their Euro-Dollar Loans for such Interest Period, the Lead
Agent shall
116
forthwith give notice thereof to the Borrower and the Banks, whereupon until the
Lead Agent notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Banks to make Euro-Dollar
Loans, or to continue or convert outstanding Loans as or into Euro-Dollar Loans,
as the case may be, shall be suspended, and each outstanding Euro-Dollar Loan
shall be converted into a Base Rate Loan on the last day of the then current
Interest Period applicable thereto. Unless the Borrower notifies the Lead Agent
at least two Domestic Business Days before the date of any Euro-Dollar Borrowing
or Money Market LIBOR Borrowing for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, (i) if such Borrowing is a
Committed Borrowing, such Borrowing shall instead be made as a Base Rate
Borrowing, and (ii) if such Borrowing is a Money Market LIBOR Borrowing, the
Money Market LIBOR Loans comprising such Borrowing shall bear interest for each
day from and including the first day to but excluding the last day of the
Interest Period applicable thereto at the Base Rate for such day.
Section VIII.2. Illegality. If, after the date of this Agreement,
----------
the adoption of any applicable law, rule or regulation, or any change in any
existing applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for any
Bank (or its Euro-Dollar Lending Office) to make, maintain or fund its Euro-
Dollar Loans or Money Market Loans or to participate in any Letter of Credit
issued by the Fronting Bank, or, with respect to the Fronting Bank, to issue any
Letter of Credit, and
117
such Bank shall so notify the Lead Agent, the Lead Agent shall forthwith give
notice thereof to the other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Lead Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank to make or convert
Euro-Dollar Loans or Money Market Loans, or to participate in any Letter of
Credit issued by the Fronting Bank or, with respect to the Fronting Bank, to
issue any Letter of Credit, shall be suspended. Before giving any notice to the
Lead Agent pursuant to this Section, such Bank shall designate a different Euro-
Dollar Lending Office if such designation will avoid the need for giving such
notice and will not, in the judgment of such Bank, be otherwise disadvantageous
to such Bank. If such Bank shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Euro-Dollar Loans or Money Market Loans
(as the case may be) to maturity and shall so specify in such notice, the
Borrower shall immediately prepay in full the then outstanding principal amount
of each such Euro-Dollar Loan or Money Market Loan, together with accrued
interest thereon. Concurrently with prepaying each such Euro-Dollar Loan, the
Borrower shall borrow a Base Rate Loan in an equal principal amount from such
Bank (on which interest and principal shall be payable contemporaneously with
the related Euro-Dollar Loans or Money Market Loans of the other Banks), and
such Bank shall make such a Base Rate Loan.
Section VIII.3. Increased Cost and Reduced Return.
---------------------------------
(a) If, after (x) the date hereof, in the case of any Committed Loan
or any obligation to make Committed Loans or (y) the date of the related Money
Market Quote, in the case of any Money Market Loan, the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule or
regulation, or
118
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify or
deem applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System (but excluding
with respect to any Euro-Dollar Loan any such requirement reflected in an
applicable Euro-Dollar Reserve Percentage)), special deposit, insurance
assessment or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its Applicable Lending Office)
or shall impose on any Bank (or its Applicable Lending Office) or on the London
interbank market any other condition affecting its Euro-Dollar Loans or Money
Market LIBOR Loans, its Note, or its obligation to make Euro-Dollar Loans, and
the result of any of the foregoing is to increase the cost to such Bank (or its
Applicable Lending Office) of making or maintaining any Euro-Dollar Loan, or to
reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Lead Agent), which demand shall be
accompanied by a certificate showing, in reasonable detail, the calculation of
such amount or amounts, the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such increased cost or
reduction.
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any
119
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Lead Agent), which demand shall be
accompanied by a certificate showing, in reasonable detail, the calculation of
such amount or amounts, the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank (or its Parent) for such
reduction.
(c) Each Bank will promptly notify the Borrower and the Lead Agent of
any event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
Section VIII.4. Taxes.
-----
120
(a) Any and all payments by the Borrower to or for the account of any
Bank or the Lead Agent hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
---------
Lead Agent, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Bank or the Lead Agent (as the
case may be) is organized or any political subdivision thereof and, in the case
of each Bank, taxes imposed on its income, and franchise or similar taxes
imposed on it, by the jurisdiction of such Bank's Applicable Lending Office or
any political subdivision thereof (and, if different from the jurisdiction of
such Bank's Applicable Lending Office, the jurisdiction of the domicile of its
Loans either established by the Bank pursuant to Section 9.12 or determined by
the applicable taxing authorities)(all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct any
-----
Taxes from or in respect of any sum payable hereunder or under any Note or
Letter of Credit or participation therein to any Bank or the Lead Agent, (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 8.4) such Bank, the Fronting Bank or the Lead Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Lead Agent, at its address referred to in Section 9.1, the
original or a certified copy of a receipt evidencing payment thereof.
121
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
Letter of Credit or participation therein or from the execution or delivery of,
or otherwise with respect to, this Agreement or any Note or Letter of Credit or
participation therein (hereinafter referred to as "Other Taxes").
-----------
(c) The Borrower agrees to indemnify each Bank, the Fronting Bank and
the Lead Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 8.4) paid by such Bank, the Fronting Bank or
the Lead Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto. Any payment
required under this indemnification shall be made within 15 days from the date
such Bank, the Fronting Bank or the Lead Agent (as the case may be) makes demand
therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receiv-
122
able pursuant to this Agreement is effectively connected with the conduct of a
trade or business in the United States. If the form provided by a Bank at the
time such Bank first became a party to this Agreement or at any time thereafter
(other than solely by reason of a change in United States law or a change in the
terms of any treaty to which the United States is a party after the date hereof)
indicates a United States interest withholding tax rate in excess of zero (or
would have indicated such a withholding tax rate if such form had been submitted
and completed accurately and completely and either was not submitted or was not
completed accurately and completely), or if a Bank otherwise is subject to
United States interest withholding tax at a rate in excess of zero at any time
for any reason (other than solely by reason of a change in United States law or
regulation or a change in any treaty to which the United States is a party after
the date hereof), withholding tax at such rate shall be considered excluded from
"Taxes" as defined in Section 8.4(a). In addition, any amount that otherwise
would be considered "Taxes" or "Other Taxes" for purposes of this Section 8.4
shall be excluded therefrom if the Bank either has transferred the domicile of
its Loans pursuant to Section 9.12 or changed the Applicable Lending Office with
respect to such Loans and such amount would not have been incurred had such
transfer or change not been made.
(e) For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form pursuant to Section 8.4(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.4(a) with respect to
Taxes imposed by the United States; provided, however, that should a Bank, which
-------- -------
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to de-
123
liver a form required hereunder, the Borrower shall take such steps as such Bank
shall reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Bank pursuant to this Section 8.4, then such Bank will change
the jurisdiction of its Applicable Lending Office so as to eliminate or reduce
any such additional payment which may thereafter accrue if such change, in the
judgment of such Bank, is not otherwise disadvantageous to such Bank.
Section VIII.5. Base Rate Loans Substituted for Affected Euro-Dollar
----------------------------------------------------
Loans. If (i) the obligation of any Bank to make, or convert outstanding Loans
- -----
to, Euro-Dollar Loans has been suspended pursuant to Sections 8.1 or 8.2 or (ii)
any Bank has demanded compensation under Section 8.3 or 8.4 with respect to its
Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar Business
Days' prior notice to such Bank through the Lead Agent, have elected that the
provisions of this Section shall apply to such Bank, then, unless and until such
Bank notifies the Borrower that the circumstances giving rise to such suspension
or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as Euro-
Dollar Loans shall be made instead as Base Rate Loans (on which interest and
principal shall be payable contemporaneously with the related Euro-Dollar Loans
of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all payments
of principal which would otherwise be applied to repay such Euro-Dollar Loans
shall be applied to repay its Base Rate Loans instead.
124
ARTICLE IX
MISCELLANEOUS
Section IX.1. Notices. All notices, requests and other
-------
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Borrower or the Lead Agent, at its address or
telecopy number set forth on the signature pages hereof, together with copies
thereof, in the case of the Borrower, to Latham & Watkins, 633 West Fifth
Street, Suite 4000, Los Angeles, CA 90071, Attention: Glen B. Collyer, Esq.,
Telephone: (213) 485-1234, Telecopy: (213) 891-8763, and in the case of the Lead
Agent, if before January 15, 2000, to Skadden, Arps, Slate, Meagher & Flom LLP,
919 Third Avenue, New York, New York 10022, Attention: Martha Feltenstein, Esq.,
Telephone: (212) 735-2272, Telecopy: (212) 735-2000, and, if after January 15,
2000, to Skadden, Arps, Slate, Meagher & Flom LLP, 4 Times Square, New York, New
York, Attention: Martha Feltenstein, Esq., (y) in the case of any Bank, at its
address or telecopy number set forth on the signature pages hereof or in its
Administrative Questionnaire or (z) in the case of any party, such other address
or telecopy number as such party may hereafter specify for the purpose by notice
to the Lead Agent, the Banks and the Borrower. Each such notice, request or
other communication shall be effective (i) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section, (ii)
if given by mail, 72 hours after such communication is deposited in the mails
with first class postage prepaid, addressed as aforesaid or (iii) if given by
any other means, when delivered at the address specified in this Section;
provided that notices to the Lead Agent under Article II or Article VIII shall
- --------
not be effective until received.
125
Section IX.2. No Waivers. No failure or delay by the Lead Agent or
----------
any Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
Section IX.3. Expenses; Indemnification.
-------------------------
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
of the Lead Agent (including, without limitation, reasonable fees and
disbursements of special counsel Skadden, Arps, Slate, Meagher & Flom LLP, local
counsel for the Lead Agent, and travel, site visits, third party reports
(including Appraisals), mortgage recording taxes, environmental and engineering
expenses), in connection with the preparation and administration of this
Agreement, the Loan Documents and the documents and instruments referred to
therein, the syndication of the Loans, any waiver or consent hereunder or any
amendment or modification hereof or any Default or alleged Default hereunder and
(ii) if an Event of Default occurs, all out-of-pocket expenses incurred by the
Lead Agent and each Bank, including, without limitation, reasonable fees and
disbursements of counsel for the Lead Agent, in connection with the enforcement
of the Loan Documents and the instruments referred to therein and such Event of
Default and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Borrower agrees to indemnify the Lead Agent and each Bank,
their respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
----------
harmless from and against any and all liabil-
126
ities, losses, damages, costs and expenses of any kind, including, without
limitation, the reasonable fees and disbursements of counsel and settlements and
settlement costs, which may be incurred by such Indemnitee in connection with
any investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) that may at any time (including,
without limitation, at any time following the payment of the Obligations) be
imposed on, asserted against or incurred by any Indemnitee as a result of, or
arising out of, or in any way related to or by reason of, (i) any of the
transactions contemplated by the Loan Documents or the execution, delivery or
performance of any Loan Document (including, without limitation, the Borrower's
actual or proposed use of proceeds of the Loans, whether or not in compliance
with the provisions hereof), (ii) any violation by the Borrower or the
Environmental Affiliates of any applicable Environmental Law, (iii) any
Environmental Claim arising out of the management, use, control, ownership or
operation of property or assets by the Borrower or any of the Environmental
Affiliates, including, without limitation, all on-site and off-site activities
involving Material of Environmental Concern, (iv) the breach of any
environmental representation or warranty set forth herein, (v) the grant to the
Lead Agent and the Banks of any Lien in any property or assets of the Borrower
or any stock or other equity interest in the Borrower, and (vi) the exercise by
the Lead Agent and the Banks of their rights and remedies (including, without
limitation, foreclosure) under any agreements creating any such Lien (but
excluding in each case, as to any Indemnitee, any such losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements incurred solely by reason of (i) the gross negligence or
willful misconduct of such Indemnitee as finally determined by a court of
competent jurisdiction or (ii) any investigative, administrative or judicial
proceeding imposed or asserted against any Indemnitee by
127
any bank regulatory agency or by any equity holder of such Indemnitee). The
Borrower's obligations under this Section shall survive the termination of this
Agreement and the payment of the Obligations.
(c) The Borrower shall pay, and hold the Lead Agent and each of the
Banks harmless from and against, any and all present and future U.S. stamp,
recording, transfer and other similar foreclosure related taxes with respect to
the foregoing matters and hold the Lead Agent and each Bank harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Bank) to pay such taxes.
Section IX.4. Sharing of Set-Offs. In addition to any rights now or
-------------------
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default, each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), other than deposits held for the
benefit of third parties, and any other indebtedness at any time held or owing
by such Bank (including, without limitation, by branches and agencies of such
Bank wherever located) to or for the credit or the account of the Borrower
against and on account of the Obligations of the Borrower then due and payable
to such Bank under this Agreement or under any of the other Loan Documents,
including, without limitation, all interests in Obligations purchased by such
Bank. Each Bank agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Note held
128
by it or Letter of Credit participated in by it, or, in the case of the Fronting
Bank, Letter of Credit issued by it, which is greater than the proportion
received by any other Bank or Letter of Credit issued or participated in by such
other Bank, in respect of the aggregate amount of principal and interest due
with respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks or Letter of Credit issued or participated in by such
other Bank, and such other adjustments shall be made, as may be required so that
all such payments of principal and interest with respect to the Notes held by
the Banks or Letter of Credit issued or participated in by such other Banks
shall be shared by the Banks pro rata; provided that nothing in this Section
--------
shall impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness under the
Notes or the Letters of Credit. The Borrower agrees, to the fullest extent that
it may effectively do so under applicable law, that any holder of a
participation in a Note, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of the Borrower in the amount of such participation.
Section IX.5. Amendments and Waivers. Any provision of this
----------------------
Agreement (including any of the financial covenants given by the Borrower
pursuant to Section 5.8), the Notes, the Letters of Credit or other Loan
Documents may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Lead Agent are affected thereby, by the Lead Agent);
provided that no such amendment or waiver
- --------
129
shall, unless signed by all the Banks, (i) increase or decrease the Commitment
of any Bank (except for a ratable decrease in the Commitments of all Banks) or
subject any Bank to any additional obligation, (ii) reduce the principal of or
rate of interest on any Loan or any fees specified herein, (iii) postpone the
date fixed for any payment of principal of or interest on any Loan or any fees
hereunder or for any reduction or termination of any Commitment, (iv) release
the Guaranty or otherwise release any other collateral, (v) subordinate the
Loans to any other Debt, or (vi) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Notes, or the number of Banks,
which shall be required for the Banks or any of them to take any action under
this Section or any other provision of this Agreement. Notwithstanding the
foregoing, no amendment, waiver or consent shall, unless in writing and signed
by the Designating Lender on behalf of its Designated Lender affected thereby,
(a) subject such Designated Lender to any additional obligations, (b) reduce the
principal of, interest on, or other amounts due with respect to, the Designated
Lender Note made payable to such Designated Lender, or (c) postpone any date
fixed for any payment of principal of, or interest on, or other amounts due with
respect to the Designated Lender Note made payable to the Designated Lender.
Section IX.6. Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement or the other Loan Documents without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant")
-----------
130
participating interests in its Commitment or any or all of its Loans. In the
event of any such grant by a Bank of a participating interest to a Participant,
whether or not upon notice to the Borrower and the Lead Agent, such Bank shall
remain responsible for the performance of its obligations hereunder, and the
Borrower and the Lead Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such participation agreement may provide that such
--------
Bank will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii), (iii) or (iv) of Section 9.5 without the consent
of the Participant. The Borrower agrees that each Participant shall, to the
extent provided in its participation agreement, be entitled to the benefits of
Article VIII with respect to its participating interest. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
--------
rights and obligations under this Agreement, the Notes and the other Loan
Documents, and such Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially the form of Exhibit D
---------
attached hereto executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Lead Agent, which consent shall not be
unreasonably withheld, and, provided no Event of
131
Default shall have occurred and be continuing, the Borrower, which consent shall
not be unreasonably withheld or delayed. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Lead Agent and the
Borrower shall make appropriate arrangements so that, if required, a new Note or
Notes are issued to the Assignee. In connection with any such assignment (except
for an assignment by a Bank to its Affiliate), the transferor Bank shall pay to
the Lead Agent an administrative fee for processing such assignment in the
amount of $2,500. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to the Borrower
and the Lead Agent certification as to exemption from deduction or withholding
of any United States federal income taxes in accordance with Section 8.4.
(d) Any Bank (each, a "Designating Lender") may at any time designate
------------------
one Designated Lender to fund Money Market Loans on behalf of such Designating
Lender subject to the terms of this Section 9.6(d) and the provisions in Section
9.6(b) and (c) shall not apply to such designation. No Bank may designate more
than one (1) Designated Lender. The parties to each such designation shall
execute and deliver to the Lead Agent for its acceptance a Designation
Agreement. Upon such receipt of an appropriately completed Designation
Agreement executed by a Designating Lender and a designee representing that it
is a Designated Lender, the Lead
132
Agent will accept such Designation Agreement and will give prompt notice thereof
to the Borrower, whereupon, (i) the Borrower shall execute and deliver to the
Designating Bank a Designated Lender Note payable to the order of the Designated
Lender, (ii) from and after the effective date specified in the Designation
Agreement, the Designated Lender shall become a party to this Agreement with a
right (subject to the provisions of Section 2.3(b)) to make Money Market Loans
on behalf of its Designating Lender pursuant to Section 2.3 after the Borrower
has accepted a Money Market Loan (or portion thereof) of the Designating Lender,
and (iii) the Designated Lender shall not be required to make payments with
respect to any obligations in this Agreement except to the extent of excess cash
flow of such Designated Lender which is not otherwise required to repay
obligations of such Designated Lender which are then due and payable; provided,
however, that regardless of such designation and assumption by the Designated
Lender, the Designating Lender shall be and remain obligated to the Borrower and
the Banks for each and every of the obligations of the Designating Lender and
its related Designated Lender with respect to this Agreement, including, without
limitation, any indemnification obligations under Section 7.6 hereof and any
sums otherwise payable to the Borrower by the Designated Lender. Each
Designating Lender shall serve as the administrative agent of the Designated
Lender and shall on behalf of, and to the exclusion of, the Designated Lender:
(i) receive any and all payments made for the benefit of the Designated Lender
and (ii) give and receive all communications and notices and take all actions
hereunder, including, without limitation, votes, approvals, waivers, consents
and amendments under or relating to this Agreement and the other Loan Documents.
Any such notice, communication, vote, approval, waiver, consent or amendment
shall be signed by the Designating Lender as administrative agent for the
Designated Lender and shall not be signed by the Designated Lender on its own
behalf and shall be binding
133
upon the Designated Lender to the same extent as if signed by the Designated
Lender on its own behalf. The Borrower, the Lead Agent, and the Banks may rely
thereon without any requirement that the Designated Lender sign or acknowledge
the same. No Designated Lender may assign or transfer all or any portion of its
interest hereunder or under any other Loan Document, other than assignments to
the Designating Lender which originally designated such Designated Lender or
otherwise in accordance with the provisions of Section 9.6(b) and (c).
(e) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note and the Letter(s) of Credit participated in by
such Bank or, in the case of the Fronting Bank, issued by it, to a Federal
Reserve Bank. No such assignment shall release the transferor Bank from its
obligations hereunder.
(f) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.3 or 8.4 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.2, 8.3 or 8.4 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
Section IX.7. Governing Law; Submission to Jurisdiction.
-----------------------------------------
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF
134
NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS
OF LAW).
(b) Any legal action or proceeding with respect to this Agreement or
any other Loan Document and any action for enforcement of any judgment in
respect thereof may be brought in the courts of the State of New York or of the
United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, the Borrower hereby accepts for itself
and in respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and appellate courts from any thereof. The
Borrower irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the hand delivery, or
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower at its address set forth below. The Borrower hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Agreement or any other Loan Document brought in the courts referred to
above and hereby further irrevocably waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum. Nothing herein shall affect the right of
the Lead Agent, any Bank or any holder of a Note to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Borrower in any other jurisdiction.
Section IX.8. Marshaling; Recapture. Neither the Lead Agent nor any
---------------------
Bank shall be under any obligation to marshal any assets in favor of the
Borrower or any other party or against or in payment of any or all of the
Obligations. To the extent any Bank receives any payment by or on behalf of the
Borrower,
135
which payment or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to the Borrower
or its estate, trustee, receiver, custodian or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such payment or repayment, the Obligation or part thereof which has
been paid, reduced or satisfied by the amount so repaid shall be reinstated by
the amount so repaid and shall be included within the liabilities of the
Borrower to such Bank as of the date such initial payment, reduction or
satisfaction occurred.
Section IX.9. Counterparts; Integration; Effectiveness. This
----------------------------------------
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective upon receipt by the Lead Agent of
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Lead Agent in form satisfactory to it of telegraphic, telex or other
written confirmation from such party of execution of a counterpart hereof by
such party).
Section IX.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE LEAD
--------------------
AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section IX.11. Survival. All indemnities set forth herein shall
--------
survive the execution and delivery of
136
this Agreement and the other Loan Documents and the making and repayment of the
Loans hereunder.
Section IX.12. Domicile of Loans. Subject to the provisions of
-----------------
Article VIII, each Bank may transfer and carry its Loans at, to or for the
account of any domestic or foreign branch office, subsidiary or affiliate of
such Bank.
Section IX.13. Limitation of Liability. No claim may be made by the
-----------------------
Borrower or any other Person against the Lead Agent or any Bank or the
affiliates, directors, officers, employees, attorneys or agent of any of them
for any consequential or punitive damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement or by the other Loan Documents, or
any act, omission or event occurring in connection therewith; and the Borrower
hereby waives, releases and agrees not to sue upon any claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
Section IX.14. No Bankruptcy Proceedings. Each of the Borrower, the
-------------------------
Banks, and the Lead Agent hereby agrees that it will not institute against any
Designated Lender or join any other Person in instituting against any Designated
Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any federal or state bankruptcy or similar law, until the later
to occur of (i) one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Designated Lender and (ii) the
Maturity Date.
137
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
BORROWER: KILROY REALTY, L.P., a Delaware
--------
limited partnership
By: Kilroy Realty Corporation,
a Maryland corporation,
its general partner
By: /s/ Tyler H. Rose
---------------------------------------
Name: Tyler H. Rose
Title: Senior Vice President and
Treasurer
138
LEAD AGENT AND BANK: MORGAN GUARANTY TRUST COMPANY
- -------------------
OF NEW YORK
By: /s/ R. David Stone
-------------------------------------
Name: R. David Stone
Title: Associate
60 Wall Street
New York, New York 10260-0060
Attention:
Telephone number:
Telecopy number:
Domestic and Euro-Currency
Lending Office:
Nassau, Bahamas Office
c/o J.P. Morgan Services Inc.
500 Stanton Christiana Road
Newark, Delaware 19173-2107
Attention: Bill Lamb
Telecopy number: (302) 634-4222
Commitment: $35,000,000
DOCUMENTATION AGENT
- -------------------
AND BANK: THE CHASE MANHATTAN BANK
- --------
By: /s/ Alan Briendell
-------------------------------------
Name: Alan Briendell
Title: Managing Director
Commitment: $35,000,000
139
MANAGING AGENT
- --------------
AND BANK: COMMERZBANK AKTIENGESELLSCHAFT,
- --------
NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Lisa C. Miller
-----------------------------------
Name: Lisa C. Miller
Title: Assistant Vice President
By: /s/ David M. Schwartz
-----------------------------------
Name: David M. Schwartz
Title: Vice President
Commitment: $32,000,000
MANAGING AGENT
- --------------
AND BANK: BANK ONE, N.A.
- --------
By: /s/ Dell K. McCoy
-----------------------------------
Name: Dell K. McCoy
Title: Vice President
Commitment: $32,000,000
MANAGING AGENT
- --------------
AND BANK: PNC BANK, NATIONAL ASSOCIATION
- --------
By: /s/ Paul Jamiol Kowski
-----------------------------------
Name: Paul Jamiol Kowski
Title: Asst. Vice President
Commitment: $32,000,000
MANAGING AGENT
- --------------
140
AND BANK: FIRST UNION BANK
- --------
By: /s/ Cynthia A. Bean
-----------------------------------
Name: Cynthia A. Bean
Title: Vice President
Commitment: $32,000,000
CO-AGENT AND BANK: DRESDNER BANK AG, NEW YORK
- -----------------
BRANCH AND GRAND CAYMAN BRANCH
By: /s/ John R. Morrison
-----------------------------------
Name: John R. Morrison
Title: Vice President
By: /s/ Beverly G. Cason
-----------------------------------
Name: Beverly G. Cason
Title: Vice President
Commitment: $28,000,000
CO-AGENT AND BANK: UNION BANK OF CALIFORNIA
- -----------------
By: /s/ Kandice K. Chappell
-----------------------------------
Name: Kandice K. Chappel
Title: Vice President
Commitment: $28,000,000
CO-AGENT AND BANK: KEYBANK NATIONAL ASSOCIATION
- -----------------
By: /s/ Vital Wiacek
-----------------------------------
Name: Vital Wiacek
Title: Vice President
141
Commitment: $28,000,000
CO-AGENT AND BANK: THE BANK OF NOVA SCOTIA, ACTING
- -----------------
THROUGH ITS SAN FRANCISCO
AGENCY
By: /s/ B. Lorne Agmundson
-----------------------------------
Name: B. Lorne Agmundson
Title: Office Head, Real Estate
Banking
Commitment: $28,000,000
BANK: MELLON BANK, N.A.
- ----
By: /s/ Michael P. Gage
-----------------------------------
Name: Michael P. Gage
Title: Vice President
Commitment: $23,000,000
BANK: SUMMIT BANK
- ----
By: /s/ Amy L. Brown
-----------------------------------
Name: Amy L. Brown
Title: Regional Vice President
Commitment: $23,000,000
BANK: CITIZENS BANK OF RHODE ISLAND
- ----
142
By: /s/ Craig E. Schermerhorn
-----------------------------------
Name: Craig E. Schermerhorn
Title: Vice President
Commitment: $19,000,000
BANK: KBC BANK N.V.
- ----
By: /s/ Robert Snauffer
-----------------------------------
Name: Robert Snauffer
Title: First Vice President
By: /s/ Raymond F. Murray
-----------------------------------
Name: Raymond F. Murray
Title: First Vice President
Commitment: $15,000,000
143
BANK: CHANG HWA COMMERCIAL BANK,LTD.,
- ----
LOS ANGELES BRANCH
By: /s/ James Lin
-----------------------------------
Name: James Lin
Title: Vice President and General
Manager
Commitment: $10,000,000
144
EXHIBIT A
---------
FORM OF NOTE
______________ New York, New York
__________ __, 1999
For value received, KILROY REALTY, L.P., a Delaware limited
partnership (the "Borrower") promises to pay to the order of _______________
--------
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
----
principal amount of each Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the Maturity Date. The Borrower promises
to pay interest on the unpaid principal amount of each such Loan on the dates
and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Lead
Agent under the Credit Agreement (as defined below).
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
--------
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Note is one of the Notes referred to in the Second Amended and
Restated Revolving Credit Agreement, dated as of ________ __, 1999, among the
Borrower, the Banks party thereto, Morgan Guaranty Trust Company of New York, as
Bank and as Lead Agent for the Banks, The Chase Manhattan Bank, as Bank and as
Documentation Agent, J.P. Morgan Securities Inc., as Syndication Agent, Lead
Arranger and Joint Bookmanager, Chase Securities Inc., as Lead Arranger and
Joint Bookmanager, Bank One, N.A., PNC Bank, National Association, First Union
Bank and Commerzbank Aktiengesellschaft, New York and Grand Cayman
A-1
Branches, each, as Managing Agent, and Dresdner Bank AG, New York and Grand
Cayman Branches, The Bank of Nova Scotia, Keybank National Association and Union
Bank of California, each, as Co-Agent (as the same may be amended from time to
time, the "Credit Agreement").
----------------
A-2
Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
KILROY REALTY, L.P., a Delaware
limited partnership
By: Kilroy Realty Corporation,
a Maryland corporation, its
general partner
By: _____________________
Name:
Title:
A-3
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
______________________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
A-4
EXHIBIT A-1
-----------
FORM OF NOTE
$______________ New York, New York
________ __, 1999
For value received, KILROY REALTY, L.P., a Delaware limited
partnership (the "Borrower") promises to pay to the order of _______________
--------
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
----
principal amount of each Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the Maturity Date. The Borrower promises
to pay interest on the unpaid principal amount of each such Loan on the dates
and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Lead
Agent under the Credit Agreement (as defined below).
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
--------
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Note is one of the Designated Lender Notes referred to in the
Second Amended and Restated Revolving Credit Agreement, dated as of ________ __,
1999, among the Borrower, the Banks party thereto, Morgan Guaranty Trust Company
of New York, as Bank and as Lead Agent for the Banks, The Chase Manhattan Bank,
as Bank and as Documentation Agent, J.P. Morgan Securities Inc., as Syndication
Agent, Lead Arranger and Joint Bookmanager, Chase Securities Inc., as Lead
Arranger and Joint Bookmanager, Bank One, N.A., PNC Bank, National Association,
First Union Bank and Commerzbank Aktiengesellschaft, New York and Grand Cayman
Branches, each, as Managing Agent, and Dresdner Bank AG, New York and Grand
Cayman Branches, The Bank of Nova Scotia, Keybank National Association and Union
Bank of California, each, as Co-Agent (as the same may be amended from time to
time, the "Credit Agreement").
----------------
A-1-1
Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
KILROY REALTY, L.P., a Delaware limited
partnership
By: Kilroy Realty Corporation, a
Maryland corporation, its
general partner
By: ________________________
Name:
Title:
A-1-2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
______________________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
A-1-3
EXHIBIT B
---------
Unencumbered Asset Pool Properties
(Fee Interests)
PROPERTY LOCATION
701 - 741 E. Ball Road Anaheim, CA
26541 Agoura Rd. Calabasas, CA
5325 Hunter Anaheim, CA
5151 - 5155 Camino Ruiz Camarillo, CA
23600 - 610 Telo Avenue Torrance, CA
Brea Industrial Properties Brea, CA
Garden Grove Industrial Properties Garden Grove, CA
Kilroy Tech Center Irvine Irvine, CA
2501 Pullman Santa Ana, CA
9401 & 9451 Toledo Way Irvine, CA
12400 Industry Garden Grove, CA
1675 MacArthur Costa Mesa, CA
1633 26th Street Santa Monica, CA
1961 Concourse San Jose, CA
2055 Main Street Irvine, CA
6828 Nancy Ridge San Diego, CA
1710 Fortune San Jose, CA
199 & 201 N. Sunrise Ave. Roseville, CA
14831 Franklin Tustin, CA
4361 Latham Riverside, CA
4351 Latham Riverside, CA
601 Valencia Brea, CA
3130 Mira Loma Anaheim, CA
3125 E. Coronado Anaheim, CA
1840 Aerojet Way Las Vegas, NV
1900 Aerojet Way Las Vegas, NV
41093 County Center Dr. Temecula, CA
1951 Carnegie Santa Ana, CA
3130 Wilshire Santa Monica, CA
12691 Monarch (Giltspur) Garden Grove, CA
525 N. Brand Glendale, CA
Walnut Business Center Diamond Bar, CA
Gothard Business Park Huntington Beach, CA
Dimension Business Park El Toro, CA
Pacific Park Plaza Aliso Viejo, CA
Anaheim Corp Center Anaheim, CA
Alton Business Center Irvine, CA
Fullerton Business Center Fullerton, CA
12100 Olympic Boulevard Los Angeles, CA
Fortune Park San Jose, CA
8101 Kaiser Anaheim, CA
795 Trademark Drive Reno, NV
1240 & 1250 N. Lakeview Ave. Anaheim, CA
4880 Santa Rosa Rd. Camarillo, CA
1250 N. Tustin Avenue Anaheim, CA
2911 Dow Avenue Tustin, CA
Foothill Ranch Foothill Ranch, CA
12312 Olympic Boulevard Los Angeles, CA
5115 E. La Palma Ave. Anaheim, CA
B-1
5115 N. 27th Avenue Phoenix, AZ
Kilroy Tech Ctr, Anaheim - Ph I Anaheim, CA
Kilroy Tech Ctr, Anaheim - Ph II Anaheim, CA
Brea - Lambert Industrial Complex Brea, CA
B-2
EXHIBIT C
---------
Unencumbered Asset Pool Properties
(Leasehold Interests)
Kilroy Airport Center,
(Long Beach) Long Beach, CA
C-1
EXHIBIT D
---------
FORM OF ASSIGNMENT AND ASSUMPTION
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
-------------------------------------------
AGREEMENT dated as of __________, ____ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), KILROY REALTY, L.P. (the "Borrower")
and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Lead Agent (the "Agent").
W I T N E S S E T H
-------------------
WHEREAS, this Assignment and Assumption Agreement (the "Assignment")
relates to the Second Amended and Restated Revolving Credit Agreement, dated as
of ________ __, 1999 (the "Loan Agreement"), among the Borrower, the Banks party
thereto, the Agent, as Bank and as Lead Agent for the Banks, The Chase Manhattan
Bank, as Bank and as Documentation Agent, J.P. Morgan Securities Inc., as
Syndication Agent, Lead Arranger and Joint Bookmanager, Chase Securities Inc.,
as Lead Arranger and Joint Bookmanager, Bank One, N.A., PNC Bank, National
Association, First Union Bank and Commerzbank Aktiengesellschaft, New York and
Grand Cayman Branches, each, as Managing Agent, and Dresdner Bank AG, New York
and Grand Cayman Branches, The Bank of Nova Scotia, Keybank National Association
and Union Bank of California, each, as Co-Agent;
WHEREAS, as provided under the Loan Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $__________;
WHEREAS, Loans made to the Borrower by the Assignor under the Loan
Agreement in the aggregate principal amount of $____________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Loan Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a
corresponding portion of its outstanding Loans, and the Assignee proposes to
accept assignment of such rights and assume the corresponding obligations from
the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
-----------
herein shall have the respective meanings set forth in the Loan Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
----------
Assignee all of the rights of the Assignor under the Loan Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Loan Agreement to the extent of the Assigned Amount, including the purchase from
the Assignor of the corresponding portion of the principal amount of the Loans
made by the Assignor outstanding at the date hereof. Upon the execution and
delivery hereof by the Assignor, the Assignee, the Borrower and the Agent and
the payment of the amounts specified in Section 3 required to be paid on the
date hereof (i) the Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under the Loan Agreement
with a Commitment in an amount equal to the Assigned Amount, and (ii) the
Commitment of the Assignor shall, as of the date hereof, be reduced by a like
amount and the Assignor released from its obligations under the Loan Agreement
to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
--------
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them./1/ It
is understood that
______________________
/1/ The amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee.
It may be pref-
D-2
Commitment Fees accrued to the date hereof are for the account of the
Assignor and such fees accruing from and including the date hereof are
for the account of the Assignee. Each of the Assignor and the Assignee
hereby agrees that if it receives any amount under the Loan Agreement
which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such
other party's interest therein and shall promptly pay the same to such
other party.
SECTION 4. Consent of the Borrower and the Agent. This Agreement is
-------------------------------------
conditioned upon the written consent of the Borrower and the consent of the
Agent pursuant to section 9.6(c) of the Loan Agreement. The execution of this
Agreement by the Borrower and the Agent is evidence of the required consents.
Pursuant to Section 9.6(c) the Borrower agrees to execute and deliver a Note
payable to the order of the Assignee to evidence the assignment and assumption
provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor respresents and
------------------------
warrants that it is the legal and beneficial owner of the interest being
assigned by it hereunder, that it has not created any adverse claim upon such
interest and that such interest is free and clear of any adverse claim, and that
it is authorized to enter into this Agreement. The Assignor makes no other
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Loan Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial
D-3
condition of the Borrower. The Assignee represents and warrants
that it is authorized to enter into this Agreement.
SECTION 6. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the external laws of the State of New York
D-4
SECTION 7. Counterparts. This Agreement may be signed in any number
------------
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By:_______________________
Name:
Title:
[ASSIGNEE]
By:________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:________________________
Name:
Title:
CONSENTED TO:
KILROY REALTY, L.P.
By: Kilroy Realty Corporation,
its general partner
By: ____________________
Name: Tyler H. Rose
Title: Senior Vice President and Treasurer
D-5
EXHIBIT E
Form of Money Market Quote Request
----------------------------------
[Date]
To: Morgan Guaranty Trust Company of New York (the "Lead Agent")
From: Kilroy Realty, L.P.
Re: Second Amended and Restated Revolving Credit Agreement, dated as of
________ __, 1999, among the Borrower, the Banks party thereto, the
Lead Agent, The Chase Manhattan Bank, as Bank and as Documentation
Agent and J.P. Morgan Securities Inc., as Syndication Agent, Lead
Arranger and Joint Bookmanager, Chase Securities Inc., as Lead Arranger
and Joint Bookmanager, Bank One, N.A., PNC Bank, National Association,
First Union Bank and Commerzbank Aktiengesellschaft, New York and Grand
Cayman Branches, each, as Managing Agent, and Dresdner Bank AG, New
York and Grand Cayman Branches, The Bank of Nova Scotia, Keybank
National Association and Union Bank of California, each, as Co-Agent
We hereby give notice pursuant to Section 2.3 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount/2/ Interest Period/3/
- ---------------- ---------------
/2/ Amount must be $10,000,000 or a larger multiple of $500,000.
/3/ Not less than one month (LIBOR Auction) or not less than 30 days (Absolute
Rate Auction), subject to the provisions of the definition of the Interest
Period.
E-1
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
The funding of Money Market Loans made in connection with this Money
Market Quote Request [may/may not] be made by Designated Lenders.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
Kilroy Realty, L.P.
By: Kilroy Realty Corporation
By:________________________
Name:
Title:
E-2
EXHIBIT F
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Kilroy Realty, L.P. (the "Borrower")
Pursuant to Section 2.3 of Second Amended and Restated Revolving
Credit Agreement, dated as of ________ __, 1999, among the Borrower, the Banks
party thereto, the Lead Agent, The Chase Manhattan Bank, as Bank and as
Documentation Agent, J.P. Morgan Securities Inc., as Syndication Agent, Lead
Arranger and Joint Bookmanager, Chase Securities Inc., as Lead Arranger and
Joint Bookmanager, Bank One, N.A., PNC Bank, National Association, First Union
Bank and Commerzbank Aktiengesellschaft, New York and Grand Cayman Branches,
each, as Managing Agent, and Dresdner Bank AG, New York and Grand Cayman
Branches, The Bank of Nova Scotia, Keybank National Association and Union Bank
of California, each, as Co-Agent, we are pleased on behalf of the Borrower to
invite you to submit Money Market Quotes to the Borrower for the following
proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
- ---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than 10:00 A.M. (New
York City time) on [date].
F-1
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Lead Agent
By______________________
Authorized Officer
F-2
EXHIBIT G
Form of Money Market Quote
--------------------------
To: Morgan Guaranty Trust Company of New York, as Lead Agent
Re: Money Market Quote to Kilroy Realty, L.P. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
- -------- --------- ---------------------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed $____________.]**
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the
Second Amended and Restated
G-1
Revolving Credit Agreement, dated as of ________ __, 1999, among the
Borrower, the Banks party thereto, The Chase Manhattan Bank, as Bank and as
Documentation Agent, J.P. Morgan Securities Inc., as Syndication Agent, Lead
Arranger and Joint Bookmanager, Chase Securities Inc., as Lead Arranger and
Joint Bookmanager, Bank One, N.A., PNC Bank, National Association, First
Union Bank and Commerzbank Aktiengesellschaft, New York and Grand Cayman
Branches, each, as Managing Agent, Dresdner Bank AG, New York and Grand
Cayman Branches, The Bank of Nova Scotia, Keybank National Association and
Union Bank of California, each, as Co-Agent, and yourselves, as Lead Agent
and Bank, irrevocably obligates us to make the Money Market Loan(s) for which
any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
G-2
EXHIBIT H
FORM OF DESIGNATION AGREEMENT
-----------------------------
Dated _____________, 199___
Reference is made to that certain Second Amended and Restated Revolving
Credit Agreement, dated as of ________ __, 1999 (the "Credit Agreement"), among
the Borrower, the Banks party thereto, Morgan Guaranty Trust Company of New
York, as Bank and as Lead Agent for the Banks ("Lead Agent"), The Chase
Manhattan Bank, as Bank and as Documentation Agent, J.P. Morgan Securities Inc.,
as Syndication Agent, Lead Arranger and Joint Bookmanager, Chase Securities
Inc., as Lead Arranger and Joint Bookmanager, Bank One, N.A., PNC Bank, National
Association, First Union Bank and Commerzbank Aktiengesellschaft, New York and
Grand Cayman Branches, each, as Managing Agent, and Dresdner Bank AG, New York
and Grand Cayman Branches, The Bank of Nova Scotia, Keybank National Association
and Union Bank of California, each, as Co-Agent. Terms defined in the Credit
Agreement are used herein with the same meaning.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNEE] (the
"Designee") and the Lead Agent agree as follows:
1. The Designor hereby designates the Designee, and the Designee
hereby accepts such designation, to have a right to make Money Market Loans
pursuant to Article III of the Credit Agreement. Any assignment by Designor to
Designee of its rights to make a Money Market Loan pursuant to such Article III
shall be effective at the time of the funding of such Money Market Loan and not
before such time.
2. Except as set forth in Section 7 below, the Designor makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument and document furnished pursuant
thereto and (b) the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obli-
H-1
gations under any Loan Document or any other instrument or document furnished
pursuant thereto.
3. The Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to in
Articles IV and V of the Credit Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement; (b) agrees that it will
independently and without reliance upon the Lead Agent, the Designor or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under any Loan Document; (c) confirms that it is a Designated
Lender; (d) appoints and authorizes the Lead Agent to take such action as agent
on its behalf and to exercise such powers and discretion under any Loan Document
as are delegated to the Lead Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; and (e) agrees to be
bound by each and every provision of each Loan Document and further agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of any Loan Document are required to be performed by it as a Bank.
4. The Designee hereby appoints Designor as Designee's agent and attorney
in fact, and grants to Designor an irrevocable power of attorney, to receive
payments made for the benefit of Designee under the Credit Agreement, to deliver
and receive all communications and notices under the Credit Agreement and other
Loan Documents and to exercise on Designee's behalf all rights to vote and to
grant and make approvals, waivers, consents of amendments to or under the Credit
Agreement or other Loan Documents. Any document executed by the Designor on the
Designee's behalf in connection with the Credit Agreement or other Loan
Documents shall be binding on the Designee. The Borrower, the Lead Agent and
each of the Banks may rely on and are beneficiaries of the preceding provisions.
5. Following the execution of this Designation Agreement by the Designor
and its Designee, it will be delivered to the Lead Agent for acceptance and
recording by the Lead Agent. The effective date for this Designation Agreement
(the "Effective Date") shall be the date of acceptance hereof by the Lead Agent,
unless otherwise specified on the signature page thereto.
H-2
6. The Lead Agent hereby agrees that it will not institute against any
Designated Lender or join any other Person in instituting against any Designated
Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any federal or state bankruptcy or similar law, until the later
to occur of (i) one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Designated Lender and (ii) the
Maturity Date.
7. The Designor unconditionally agrees to pay or reimburse the Designee
and save the Designee harmless against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed or asserted by any of the
parties to the Loan Documents against the Designee, in its capacity as such, in
any way relating to or arising out of this Agreement or any other Loan Documents
or any action taken or omitted by the Designee hereunder or thereunder, provided
--------
that the Designor shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements if the same results from the Designee's gross
negligence or willful misconduct.
8. Upon such acceptance and recording by the Lead Agent, as of the
Effective Date, the Designee shall be a party to the Credit Agreement with a
right (subject to the provisions of Section 2.3(b)) to make Money Market Loans
as a Bank pursuant to Section 2.3 of the Credit Agreement and the rights and
obligations of a Bank related thereto; provided, however, that the Designee
-----------------
shall not be required to make payments with respect to such obligations except
to the extent of excess cash flow of such Designee which is not otherwise
required to repay obligations of such Designated Lender which are then due and
payable. Notwithstanding the foregoing, the Designor, as administrative agent
for the Designee, shall be and remain obligated to the Borrower, the Co-Agents
and the Banks for each and every of the obligations of the Designee and its
Designor with respect to the Credit Agreement, including, without limitation,
any indemnification obligations under Section 7.6 of the Credit Agreement and
any sums otherwise payable to the Borrower by the Designee.
9. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
H-3
10. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
H-4
IN WITNESS WHEREOF, the Designor and the Designee, intending to be legally
bound, have caused this Designation Agreement to be executed by their officers
thereunto duly authorized as of the date first above written.
Effective Date: ________________________, 199__
[NAME OF DESIGNOR], as
Designor
By:
Title:
[NAME OF DESIGNEE] as
Designee
By:
Title:
Applicable Lending Office
(and address for notices):
[ADDRESS]
Accepted this _____ day
of ________, 19__
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Lead Agent
By:
Title:
H-5
SCHEDULE 4.22
-------------
LABOR MATTERS
Agreement between Building Owners and Managers Association of Greater Los
Angeles, Inc., and International Union of Operating Engineers, Local No. 501,
AFL-CIO (November 1, 1996-October 31, 2001)