EXHIBIT 10.1
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REVOLVING CREDIT AGREEMENT
dated as of June 29, 2004
among
AMB JAPAN FINANCE Y.K., as Initial Borrower,
AMB PROPERTY, L.P., as Guarantor,
AMB PROPERTY CORPORATION, as Guarantor,
THE BANKS LISTED HEREIN,
SUMITOMO MITSUI BANKING CORPORATION,
as Administrative Agent and Sole Lead Arranger and Bookmanager
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS.................................................................... 1
SECTION 1.1. Definitions.................................................................. 1
SECTION 1.2. Accounting Terms and Determinations.......................................... 31
SECTION 1.3. Types of Borrowings.......................................................... 32
ARTICLE II THE CREDITS.................................................................... 32
SECTION 2.1. Commitments to Lend.......................................................... 32
SECTION 2.2. Notice of Borrowing.......................................................... 32
SECTION 2.3. Intentionally Deleted........................................................ 34
SECTION 2.4. Intentionally Deleted........................................................ 34
SECTION 2.5. Notice to Banks; Funding of Loans............................................ 34
SECTION 2.6. Notes........................................................................ 36
SECTION 2.7. Method of Electing Interest Rates............................................ 37
SECTION 2.8. Interest Rates............................................................... 39
SECTION 2.9. Fees......................................................................... 39
SECTION 2.10.Maturity Date................................................................ 41
SECTION 2.11.Optional Prepayments......................................................... 41
SECTION 2.12.Mandatory Prepayments........................................................ 42
SECTION 2.13.Secured Option............................................................... 43
SECTION 2.14.General Provisions as to Payments............................................ 45
SECTION 2.15.Funding Losses............................................................... 46
SECTION 2.16.Computation of Interest and Fees............................................. 46
SECTION 2.17.Use of Proceeds.............................................................. 46
SECTION 2.18.Letters of Credit............................................................ 46
SECTION 2.19.Letter of Credit Usage Absolute.............................................. 50
SECTION 2.20.Addition of Qualified Borrowers; Release of Qualified Borrowers.............. 51
ARTICLE III CONDITIONS..................................................................... 52
SECTION 3.1. Closing...................................................................... 52
SECTION 3.2. Borrowings................................................................... 54
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ARTICLE IV REPRESENTATIONS AND WARRANTIES................................................. 56
SECTION 4.1. Representations and Warranties by the Guarantors............................. 56
SECTION 4.2. Representations and Warranties by the Initial Borrower....................... 62
ARTICLE V AFFIRMATIVE AND NEGATIVE COVENANTS............................................. 64
SECTION 5.1. Information.................................................................. 64
SECTION 5.2. Payment of Obligations....................................................... 67
SECTION 5.3. Maintenance of Property; Insurance; Leases................................... 67
SECTION 5.4. Maintenance of Existence..................................................... 68
SECTION 5.5. Compliance with Laws......................................................... 68
SECTION 5.6. Inspection of Property, Books and Records.................................... 68
SECTION 5.7. Existence.................................................................... 68
SECTION 5.8. Financial Covenants.......................................................... 69
SECTION 5.9. Restriction on Fundamental Changes........................................... 71
SECTION 5.10.Changes in Business.......................................................... 72
SECTION 5.11.AMB Corporation Status....................................................... 72
SECTION 5.12.Other Indebtedness........................................................... 74
SECTION 5.13.Forward Equity Contracts..................................................... 74
SECTION 5.14.Capital Funding Loans........................................................ 74
ARTICLE VI DEFAULTS....................................................................... 76
SECTION 6.1. Borrower Events of Default................................................... 76
SECTION 6.2. Rights and Remedies with Respect to Borrower Event of Default................ 78
SECTION 6.3. Guarantors Event of Default.................................................. 79
SECTION 6.4. Rights and Remedies.......................................................... 82
SECTION 6.5. Enforcement of Rights and Remedies........................................... 83
SECTION 6.6. Notice of Default............................................................ 83
SECTION 6.7. Actions in Respect of Letters of Credit...................................... 84
SECTION 6.8. Distribution of Proceeds after Default....................................... 86
ARTICLE VII THE ADMINISTRATIVE AGENT....................................................... 87
SECTION 7.1. Appointment and Authorization................................................ 87
SECTION 7.2. Agency and Affiliates........................................................ 87
SECTION 7.3. Action by Administrative Agent............................................... 87
SECTION 7.4. Consultation with Experts.................................................... 87
SECTION 7.5. Liability of Administrative Agent............................................ 87
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SECTION 7.6. Indemnification.............................................................. 88
SECTION 7.7. Credit Decision.............................................................. 88
SECTION 7.8. Successor Agent.............................................................. 89
SECTION 7.9. Consents and Approvals....................................................... 89
SECTION 7.10.Cooperation with Asset Liquidation Plan Amendments........................... 90
ARTICLE VIII CHANGE IN CIRCUMSTANCES........................................................ 91
SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair..................... 91
SECTION 8.2. Illegality................................................................... 91
SECTION 8.3. Increased Cost and Reduced Return............................................ 92
SECTION 8.4. Taxes........................................................................ 94
SECTION 8.5. Base Rate Loans Substituted for Affected TIBOR Loans......................... 97
ARTICLE IX MISCELLANEOUS.................................................................. 97
SECTION 9.1. Notices...................................................................... 97
SECTION 9.2. No Waivers................................................................... 98
SECTION 9.3. Expenses; Indemnification.................................................... 98
SECTION 9.4. Sharing of Set-Offs.......................................................... 99
SECTION 9.5. Amendments and Waivers....................................................... 100
SECTION 9.6. Successors and Assigns....................................................... 102
SECTION 9.7. Collateral................................................................... 104
SECTION 9.8. Governing Law; Submission to Jurisdiction; Judgment Currency................. 104
SECTION 9.9. Counterparts; Integration; Effectiveness..................................... 105
SECTION 9.10.WAIVER OF JURY TRIAL......................................................... 105
SECTION 9.11.Survival..................................................................... 105
SECTION 9.12.Intentionally Deleted........................................................ 106
SECTION 9.13.Limitation of Liability...................................................... 106
SECTION 9.14.Recourse Obligation.......................................................... 106
SECTION 9.15.Confidentiality.............................................................. 106
SECTION 9.16.Bank's Failure to Fund....................................................... 107
SECTION 9.17.Banks' ERISA Covenant........................................................ 112
SECTION 9.18.Bank Ceasing to be a Qualified Institutional Investor........................ 113
SECTION 9.19.Intentionally Deleted........................................................ 114
SECTION 9.20.Intentionally Deleted........................................................ 114
SECTION 9.21.USA PATRIOT ACT.............................................................. 114
SECTION 9.22. OFAC LIST................................................................... 114
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SCHEDULE 1.1(a) Initial Qualified Borrowers
SCHEDULE 1.1(b) Initial Qualifying Unencumbered Properties
SCHEDULE 2.2(a) Project Information
SCHEDULE 4.1(f) Guarantor CBA and ERISA Plans
SCHEDULE 4.4 (b) Disclosure of Additional Material Indebtedness
SCHEDULE 5.11(c)(1) AMB Corporation Investments
SCHEDULE 5.11(c)(2) AMB Corporation Properties
EXHIBIT A-1 Form of Note
EXHIBIT A-2 Form of Qualified Borrower Undertaking
EXHIBIT B Qualified Borrower Joinder Agreement
EXHIBIT C Form of Mortgage
EXHIBIT D Form of TBI Pledge
EXHIBIT E Form of Share Pledge
EXHIBIT F Form of Consent
EXHIBIT G Notices
EXHIBIT H Form of Transfer Supplement
EXHIBIT I-1 Organizational and Structural Chart for AMB Japan Finance Y.K.
EXHIBIT I-2 Organizational and Structure Chart for AMB Narita 1 Y.K.
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REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT (this "Agreement") dated as of June 29, 2004
among AMB JAPAN FINANCE Y.K., as Initial Borrower (the "Initial Borrower"), AMB
PROPERTY, L.P., as Guarantor ("AMB LP"), AMB PROPERTY CORPORATION, as Guarantor
("AMB Corporation"), the BANKS listed on the signature pages hereof, SUMITOMO
MITSUI BANKING CORPORATION, as Administrative Agent and Sole Lead Arranger and
Bookmanager.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have
the following meanings:
"Adjusted EBITDA" means EBITDA for such period minus an amount equal
to appropriate reserves for replacements of Ten Cents U.S. (US$0.10) (or in the
case of any Real Property Asset owned by an Investment Affiliate or by a
Consolidated Subsidiary, Guarantors' Share of Ten Cents U.S. (US$0.10)) per
square foot per annum for each Real Property Asset (provided that, as to any
Real Property Asset acquired during such period such Ten Cents U.S. (US$0.10)
per square foot adjustment shall be pro-rated for the period of ownership).
"Administrative Agent" shall mean Sumitomo Mitsui Banking
Corporation in its respective capacity as Administrative Agent hereunder, and
its respective permitted successors in such capacity in accordance with the
terms of this Agreement.
"Administrative Fee" shall have the meaning set forth in Section
2.9(c).
"Administrative Questionnaire" means with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to each Borrower) duly
completed by such Bank.
"Affiliate", as applied to any Person, means any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the
terms "controlling", "controlled by" and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of the
power to vote ten percent (10.0%) or more of the equity Securities having voting
power for the election of directors of such Person or otherwise to direct or
cause the direction of the management and policies of that Person, whether
through the ownership of voting equity Securities or by contract or otherwise.
"Agreement" shall mean this Revolving Credit Agreement as the same
may from time to time hereafter be modified, supplemented or amended.
"AMB Corporation" shall mean AMB Property Corporation, a Maryland
corporation, a real estate investment trust, which is the general partner of AMB
LP and a Guarantor.
"AMB LP" shall mean AMB Property, L.P., a Delaware limited
partnership and a Guarantor.
"Annual Fronting Bank Fee" shall have the meaning set forth in
Section 2.9(c).
"Applicable Fee Percentage" means the respective percentages per
annum determined, at any time, based on the range into which AMB LP's Credit
Rating then falls, in accordance with the table set forth below. Any change in
AMB LP's Credit Rating causing it to move to a different range on the table
shall effect an immediate change in the Applicable Fee Percentage. AMB LP shall
have not less than two (2) Credit Ratings at all times. In the event that AMB LP
receives only two (2) Credit Ratings (one of which must be from S&P or Moody's),
and such Credit Ratings are not equivalent, the Applicable Fee Percentage shall
be determined by the lower of such two (2) Credit Ratings. In the event that AMB
LP receives more than two (2) Credit Ratings, and such Credit Ratings are not
all equivalent, the Applicable Fee Percentage shall be determined by the second
highest Credit Rating, provided that one of the highest two (2) Credit Ratings
shall be from S&P or Moody's; provided, further, that if neither of the highest
two (2) Credit Ratings is from S&P or Moody's, then the Applicable Fee
Percentage shall be determined by the highest Credit Rating from either S&P or
Moody's.
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Range of
AMB LP's
Credit Rating Applicable
(S&P/Moody's Fee Percentage
Ratings) (% per annum)
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Non-Investment Grade 0.35
BBB-/Baa3 0.25
BBB/Baa2 0.20
BBB+/Baa1 0.20
A-/A3 or better 0.15
"Applicable Interest Rate" means (i) with respect to any Fixed Rate
Indebtedness, the fixed interest rate applicable to such Fixed Rate Indebtedness
at the time in question, and (ii) with respect to any Floating Rate
Indebtedness, either (x) the rate at which the interest rate applicable to such
Floating Rate Indebtedness is actually capped (or fixed pursuant to an interest
rate hedging device), at the time of calculation, if either Guarantor has
entered into an interest rate cap agreement or other interest rate hedging
device with respect thereto or (y) if no Guarantor has entered into an interest
rate cap agreement or other interest rate hedging device with respect to such
Floating Rate Indebtedness, the greater of (A) the rate at which the interest
rate applicable to such Floating Rate Indebtedness could be fixed for the
remaining term of such Floating Rate Indebtedness, at the time of calculation,
by a Guarantor entering into any unsecured interest rate hedging device either
not requiring an upfront payment or if requiring an upfront payment, such
upfront payment shall be amortized over the term of such device and included in
the calculation of the interest rate (or, if such rate is incapable of being
fixed by entering into an unsecured interest rate hedging device at the time of
calculation, a fixed rate equivalent reasonably determined by Administrative
Agent) or (B) the floating rate applicable to such Floating Rate Indebtedness at
the time in question.
"Applicable Margin" means with respect to each Loan, the respective
percentages per annum determined, at any time, based on the range into which AMB
LP's Credit Rating then falls, in accordance with the table set forth below. Any
change in AMB LP's Credit Rating causing it to move to a different range on the
table shall effect an immediate change in the Applicable Margin. AMB LP shall
have not less than
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two (2) Credit Ratings at all times. In the event that AMB LP receives only two
(2) Credit Ratings (one of which must be from S&P or Moody's), and such Credit
Ratings are not equivalent, the Applicable Margin shall be determined by the
lower of such two (2) Credit Ratings. In the event that AMB LP receives more
than two (2) Credit Ratings, and such Credit Ratings are not all equivalent, the
Applicable Margin shall be determined by the second highest Credit Rating,
provided that one of the highest two (2) Credit Ratings shall be from S&P or
Moody's; provided, further, that if neither of the highest two (2) Credit
Ratings is from S&P or Moody's, then the Applicable Margin shall be determined
by the highest Credit Rating from either S&P or Moody's.
Range of Applicable Applicable
AMB LP's Margin for Margin for
Credit Rating Base Rate TIBOR Loans
Ratings) (% per annum) (% per annum)
- --------------------- ------------- ---------------
Non-Investment Grade 0.00 1.15
BBB-/Baa3 0.00 0.85
BBB/Baa2 0.00 0.70
BBB+/Baa1 0.00 0.60
A-/A3 or better 0.00 0.60
"Asset Liquidation Plan" means a plan that has been duly filed with
the Director General of the Kanto Local Finance Bureau pursuant to Article 3 of
TMK Law, as amended.
"Assignee" has the meaning set forth in Section 9.6(c).
"Balance Sheet Indebtedness" means with respect to any Person and
assuming such Person is required to prepare financial statements in accordance
with GAAP, without duplication, the Indebtedness of such Person which would be
required to be included on the liabilities side of the balance sheet of such
Person in accordance with GAAP excluding, in the case of the Guarantors, the
Balance Sheet Indebtedness of any Consolidated Subsidiary. Notwithstanding the
foregoing, Balance Sheet Indebtedness shall include current liabilities and all
guarantees of Indebtedness of any Person.
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"Balloon Payments" shall mean with respect to any loan constituting
Balance Sheet Indebtedness, any required principal payment of such loan which is
either (i) payable at the maturity of such Indebtedness or (ii) in an amount
which exceeds fifteen percent (15%) of the original principal amount of such
loan; provided, however, that the final payment of a fully amortizing loan shall
not constitute a Balloon Payment.
"Bank" means each entity (other than a Credit Party) listed on the
signature pages hereof, each Assignee which becomes a Bank pursuant to Section
9.6(c), and their respective successors.
"Bankruptcy Code" shall mean Title 11 of the United States Code,
entitled "Bankruptcy", as amended from time to time, and any successor statute
or statutes.
"Bankruptcy Law" means any governmental rules of any jurisdiction
relating to bankruptcy, insolvency, corporate reorganization, company
arrangement, civil rehabilitation, special liquidation, moratorium, readjustment
of debt, appointment of a conservator (hozen kanrinin), trustee (kanzai nin),
supervisor (kantoku i'in), inspector (chosa i'in) or receiver, or similar debtor
relief effecting, including, without limitation, hasan, minji saisei, kaisha
seiri, kaisha kosei, tokubetsu seisan and tokutei chotei.
"Base Rate" means, for any day, a rate per annum equal to the Prime
Rate for such day. Each change in the Base Rate shall become effective
automatically as of the opening of business on the date of such change in the
Base Rate, without prior written notice to Borrower or Banks.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a
Base Rate Loan in accordance with the provisions of this Agreement.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means, collectively, Initial Borrower and any Qualified
Borrower for so long as such entity is a Qualified Borrower hereunder.
"Borrower Default" means any condition or event which with the
giving of notice or lapse of time or both would, unless cured or waived, become
a Borrower Event of Default.
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"Borrower Event of Default" shall have the meaning set forth in
Section 6.1.
"Borrowing" has the meaning set forth in Section 1.3.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in New York City or Tokyo, Japan are authorized by law
to close.
"Capital Leases" as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"Capital Funding Loan" shall have the meaning set forth in Section
5.14 hereof.
"Cash or Cash Equivalents" shall mean (a) cash; (b) marketable
direct obligations issued or unconditionally guaranteed by the United States
Government or issued by an agency thereof and backed by the full faith and
credit of the United States, in each case maturing within one (1) year after the
date of acquisition thereof; (c) marketable direct obligations issued by any
state of the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within ninety (90) days
after the date of acquisition thereof and, at the time of acquisition, having
one of the two highest ratings obtainable from any two of S & P, Moody's or
Fitch (or, if at any time no two of the foregoing shall be rating such
obligations, then from such other nationally recognized rating services
acceptable to Administrative Agent ); (d) domestic corporate bonds, other than
domestic corporate bonds issued by a Guarantor or any of its Affiliates,
maturing no more than two (2) years after the date of acquisition thereof and,
at the time of acquisition, having a rating of at least A or the equivalent from
any two (2) of S & P, Moody's or Fitch (or, if at any time no two of the
foregoing shall be rating such obligations, then from such other nationally
recognized rating services acceptable to Administrative Agent); (e)
variable-rate domestic corporate notes or medium term corporate notes, other
than notes issued by a Guarantor or any of its Affiliates, maturing or resetting
no more than one (1) year after the date of acquisition thereof and having a
rating of at least AA or the equivalent from two of S & P, Moody's or Fitch (or,
if at any time no two of the foregoing shall be rating such obligations, then
from such other nationally recognized rating services acceptable to
Administrative Agent); (f) commercial paper (foreign and domestic) or master
notes, other than commercial paper or master notes issued by a Guarantor or any
of its Affiliates, and, at the time of acquisition, having a long-term rating of
at least A or the equivalent from S & P, Moody's or Fitch and having a
short-term rating of at least A-1
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and P-1 from S & P and Moody's, respectively (or, if at any time neither S & P
nor Moody's shall be rating such obligations, then the highest rating from such
other nationally recognized rating services acceptable to Administrative Agent);
(g) domestic and foreign certificates of deposit or domestic time deposits or
foreign deposits or bankers' acceptances (foreign or domestic) in Dollars, Hong
Kong Dollars, Singapore Dollars, Pounds Sterling, Euros or Yen that are issued
by a bank (I) which has, at the time of acquisition, a long-term rating of at
least A or the equivalent from S & P, Moody's or Fitch and (II) if a domestic
bank, which is a member of the Federal Deposit Insurance Corporation; (h)
overnight securities repurchase agreements, or reverse repurchase agreements
secured by any of the foregoing types of securities or debt instruments,
provided that the collateral supporting such repurchase agreements shall have a
value not less than 101% of the principal amount of the repurchase agreement
plus accrued interest; and (i) money market funds invested in investments
substantially all of which consist of the items described in clauses (a) through
(h) foregoing.
"Closing Date" means the date on or after the Effective Date on
which the conditions set forth in Section 3.1 shall have been satisfied to the
satisfaction of the Administrative Agent.
"Code" means the Internal Revenue Code of 1986, as amended, and as
it may be further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
"Collateral" shall have the meaning set forth in Section 2.13(a).
"Committed Borrowing" shall have the meaning set forth in Section
1.3.
"Committed Loan" means a loan made by a Bank pursuant to Section
2.1, as well as loans required to be made by a Bank pursuant to Section 2.18 to
reimburse a Fronting Bank for a Letter of Credit that has been drawn down;
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term "Committed
Loan" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"Commitment" means, with respect to each Bank, the amount set forth
under the name of such Bank on the signature pages hereof as its commitment
pursuant to this Agreement with respect to any Loans (and, for each Bank which
is an Assignee, the amount set forth in the Transfer Supplement entered into
pursuant to Section 9.6(c) as the Assignee's Commitment), as such amount may be
reduced from time to time pursuant to Section 2.11 or in connection with an
assignment to an Assignee and
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increased in connection with an assignment from an Assignor. As of the Closing
Date, the aggregate Commitment is Twenty-Four Billion Yen (JPY24,000,000,000).
"Consents" has the meaning set forth in Section 7.10.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity which is consolidated with a Guarantor in accordance with GAAP.
"Consolidated Subsidiary EBITDA" means, for any period (i) Income
from Operations of a Consolidated Subsidiary for such period, plus (ii)
depreciation and amortization expense and other non-cash items deducted in the
calculation of Income from Operations of such Consolidated Subsidiary for such
period, plus (iii) Interest Expense deducted in the calculation of Income from
Operations of such Consolidated Subsidiary for such period, all of the foregoing
without duplication.
"Consolidated Tangible Net Worth" means, at any time, the tangible
net worth of AMB LP, on a consolidated basis, determined in accordance with
GAAP, plus preferred units issued by Consolidated Subsidiaries, plus all
accumulated depreciation and amortization of AMB LP plus Guarantors' Share of
accumulated depreciation and amortization of Investment Affiliates, deducted, in
either case, from earnings in calculating Net Income.
"Construction Asset" has the meaning set forth in the definition of
the term "Construction Asset Cost".
"Construction Asset Cost" shall mean, with respect to a Real
Property Asset (or, in the case of any Real Property Asset to be developed in
phases, any phase thereof) in which Development Activity has begun (as evidenced
by obtaining a permit to commence construction of the applicable industrial or
retail improvements by the applicable governmental authority) but has not yet
been substantially completed (substantial completion shall be deemed to mean not
less than 90% completion, as such completion shall be evidenced by a certificate
of occupancy or its equivalent and the commencement of the payment of rent by
tenants of such Real Property Asset or phase) (a "Construction Asset"), (i) in
the case of the development and construction by AMB LP described in clause (a)
of the definition of Development Activity, the aggregate, good faith estimate of
the total cost to be incurred by AMB LP in the construction of such improvements
(including land acquisition costs); (ii) in the case of the development and
construction by a Joint Venture Subsidiary or a Consolidated Subsidiary of AMB
LP) described in clause (a) of the definition of Development Activity, an amount
equal to Guarantor's Share of the aggregate, good faith estimate of the total
cost to be incurred by such Joint Venture Subsidiary or Consolidated Subsidiary,
as applicable, in the construction of such improvements (including land
acquisition costs); (iii) in the case of the financing of any development and
construction by AMB LP, the amount AMB LP has committed to fund to pay the cost
to complete such development and construction, (iv) in the case of the financing
of any development and construction by a Joint
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Venture Subsidiary or a Consolidated Subsidiary of AMB LP, an amount equal to
Guarantors' Share of the amount such Joint Venture Subsidiary or such
Consolidated Subsidiary, as applicable, has committed to fund to pay the cost to
complete such development and construction; (v) in the case of the incurrence of
any Contingent Obligations in connection with any development and construction
by AMB LP, the amount of such Contingent Obligation of AMB LP, (vi) in the case
of the incurrence of any Contingent Obligations in connection with any
development and construction by a Joint Venture Subsidiary or a Consolidated
Subsidiary of AMB LP, an amount equal to Guarantors' Share of the amount of such
Contingent Obligation of such Joint Venture Subsidiary or such Consolidated
Subsidiary, as applicable.
"Contingent Obligation" as to any Person means, without duplication,
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Person's financial statements,
guaranteeing partially or in whole any Non-Recourse Indebtedness, lease,
dividend or other obligation, exclusive of contractual indemnities (including,
without limitation, any indemnity or price-adjustment provision relating to the
purchase or sale of securities or other assets) and guarantees of non-monetary
obligations (other than guarantees of completion) which have not yet been called
on or quantified, of such Person or of any other Person. The amount of any
Contingent Obligation described in clause (ii) shall be deemed to be (a) with
respect to a guaranty of interest or interest and principal, or operating income
guaranty, the Net Present Value of the sum of all payments required to be made
thereunder (which in the case of an operating income guaranty shall be deemed to
be equal to the debt service for the note secured thereby), calculated at the
Applicable Interest Rate, through (i) in the case of an interest or interest and
principal guaranty, the stated date of maturity of the obligation (and
commencing on the date interest could first be payable thereunder), or (ii) in
the case of an operating income guaranty, the date through which such guaranty
will remain in effect, and (b) with respect to all guarantees not covered by the
preceding clause (a), an amount equal to the stated or determinable amount of
the primary obligation in respect of which such guaranty is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as recorded on
the balance sheet and on the footnotes to the most recent financial statements
of AMB LP required to be delivered pursuant to Section 5.1 hereof.
Notwithstanding anything contained herein to the contrary, guarantees of
completion shall not be deemed to be Contingent Obligations unless and until a
claim for payment or performance has been made thereunder, at which time any
such guaranty of completion shall be deemed to be a Contingent Obligation in an
amount equal to any such claim. Subject to the preceding sentence, (i) in the
case of a joint and several guaranty given by such Person and another Person
(but only to the extent such guaranty is recourse, directly or indirectly to AMB
LP), the amount of the guaranty shall be deemed to be 100% thereof unless and
only to the extent that such other Person has delivered Cash or Cash Equivalents
to secure all or any part of such Person's guaranteed obligations, (ii) in the
case of joint and several guarantees given by a Person in whom AMB LP owns an
interest (which guarantees are non-recourse to
9
AMB LP), to the extent the guarantees, in the aggregate, exceed 15% of Total
Asset Value, the amount which is the lesser of (x) the amount in excess of 15%
or (y) the amount of AMB LP's interest therein shall be deemed to be a
Contingent Obligation of AMB LP, and (iii) in the case of a guaranty (whether or
not joint and several) of an obligation otherwise constituting Indebtedness of
such Person, the amount of such guaranty shall be deemed to be only that amount
in excess of the amount of the obligation constituting Indebtedness of such
Person. Notwithstanding anything contained herein to the contrary, "Contingent
Obligations" shall be deemed not to include guarantees of Unused Commitments or
of construction loans to the extent the same have not been drawn. All matters
constituting "Contingent Obligations" shall be calculated without duplication.
"Convertible Securities" means evidences of shares of stock, limited
or general partnership interests or other ownership interests, warrants,
options, or other rights or securities which are convertible into or
exchangeable for, with or without payment of additional consideration, common
shares of beneficial interest of AMB Corporation or partnership interests of AMB
LP, as the case may be, either immediately or upon the arrival of a specified
date or the happening of a specified event.
"Covenant Modification" shall have the meaning set forth in Section
9.5(b).
"Credit Party" shall mean any of Borrower or a Guarantor and "Credit
Parties" shall mean Borrower and Guarantors, collectively.
"Credit Rating" means the rating assigned by the Rating Agencies to
AMB LP's senior unsecured long term indebtedness.
"Debt Restructuring" means a restatement of, or material change in,
the amortization or other financial terms of any Indebtedness of any Guarantor
or any Subsidiary or Investment Affiliate.
"Debt Service" means, for any period and without duplication,
Interest Expense for such period plus scheduled principal amortization
(excluding Balloon Payments) for such period on all Balance Sheet Indebtedness
of Guarantors plus Guarantors' Share of scheduled principal amortization
(excluding Balloon Payments) for such period on all Balance Sheet Indebtedness
of Investment Affiliates and Consolidated Subsidiaries.
"Default" means any Guarantor Default or Borrower Default.
"Default Rate" has the meaning set forth in Section 2.8(c).
"Development Activity" means (a) the development and construction of
industrial or retail facilities by AMB LP or any of its Consolidated
Subsidiaries or Joint
10
Venture Subsidiaries excluding Unimproved Assets, (b) the financing by AMB LP or
any of its Consolidated Subsidiaries or Joint Venture Subsidiaries of any such
development or construction and (c) the incurrence by AMB LP or any of its
Consolidated Subsidiaries or Joint Venture Subsidiaries of any Contingent
Obligations in connection with such development or construction (other than
purchase contracts for Real Property Assets which are not payable until after
completion of development or construction).
"Dollars" and "US$" means the lawful money of the United States.
"EBITDA" means, for any period (i) Guarantors' Income from
Operations for such period, plus (ii) Guarantors' depreciation and amortization
expense and other non-cash items deducted in the calculation of Income from
Operations for such period, plus (iii) Guarantors' Interest Expense deducted in
the calculation of Income from Operations for such period, plus (iv) Guarantors'
Share of the Investment Affiliate EBITDA for each Investment Affiliate, plus (v)
Guarantors' Share of the Consolidated Subsidiary EBITDA for each Consolidated
Subsidiary, all of the foregoing without duplication.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 9.9.
"Environmental Affiliate" means any partnership, joint venture,
trust or corporation in which an equity interest is owned directly or indirectly
by a Credit Party and, as a result of the ownership of such equity interest, AMB
LP may have recourse liability for Environmental Claims against such
partnership, joint venture, trust or corporation (or the property thereof).
"Environmental Claim" means, with respect to any Person, any notice,
claim, demand or similar communication (written or oral) by any other Person
alleging potential liability of such Person for investigatory costs, cleanup
costs, governmental response costs, natural resources damage, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
(i) the presence, or release into the environment, of any Materials of
Environmental Concern at any location, whether or not owned by such Person or
(ii) circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law, in each case (with respect to both (i) and (ii) above) as
to which there is a reasonable possibility of an adverse determination with
respect thereto and which, if adversely determined, would have a Material
Adverse Effect on AMB LP.
"Environmental Laws" means any and all federal, state, and local
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, licenses,
agreements and other governmental restrictions relating to the environment, the
effect of the environment on human health or to emissions, discharges or
releases of Materials of Environmental Concern into the
11
environment including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern or the clean up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Guarantors, any Subsidiary and all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control and all members of an "affiliated service
group" which, together with the Guarantors or any Subsidiary, are treated as a
single employer under Section 414 of the Code or Section 4001(b)(1) of ERISA.
"Event of Default" shall mean a Borrower Event of Default or a
Guarantor Event of Default.
"Existing Credit Agreement" shall mean the Second Amended and
Restated Revolving Credit Agreement dated as of June 1, 2004 among AMB LP, as
borrower, the Banks listed on the signature pages thereof, and JPMorgan Chase
Bank, as Administrative Agent.
"Existing Credit Agreement Agent" means JPMorgan Chase Bank, the
administrative agent under the Existing Credit Agreement, its successors and
assigns.
"Existing Credit Agreement Proposal" shall have the meaning set
forth in Section 9.5(b).
"Extension Date" has the meaning set forth in Section 2.10(b).
"Extension Fee" has the meaning set forth in Section 2.9(d).
"Extension Notice" has the meaning set forth in Section 2.10(b).
"Facility Amount" has the meaning set forth in Section 2.1.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System as constituted from time to time.
"FFO" means "funds from operations," defined to mean, without
duplication for any period, Income from Operations, plus (i) Guarantors' Share
of Income from Operations of any Investment Affiliate (plus Guarantors' Share of
real estate depreciation and amortization expenses of Investment Affiliates),
plus (ii) real estate depreciation and amortization expense for such period.
12
"Financing Partnerships" means any Subsidiary which is wholly-owned,
directly or indirectly, by AMB LP or jointly by the Guarantors provided that AMB
Corporation holds, directly or indirectly other than through its interest in AMB
LP, no more than a 2% economic interest in such Subsidiary.
"First Tier JV" has the meaning set forth in Section 5.14.
"Fiscal Quarter" means a fiscal quarter of a Fiscal Year.
"Fiscal Year" means the fiscal year of Guarantors.
"Fitch" means Fitch, Inc., or any successor thereto.
"Fixed Charges" for any Fiscal Quarter period means the sum of (i)
Debt Service for such period, (ii) dividends on preferred units payable by AMB
LP for such period, and (iii) distributions made by AMB LP in such period to AMB
Corporation for the purpose of paying dividends on preferred shares in AMB
Corporation. If any of the foregoing Indebtedness is subject to an interest rate
cap agreement purchased by a Guarantor or a Consolidated Subsidiary, the
interest rate shall be assumed to be the lower of the actual interest payable on
such Indebtedness or the capped rate of such interest rate cap agreement. In no
event shall any dividends payable on AMB Corporation's or any Consolidated
Subsidiary's common stock be included in Fixed Charges.
"Fixed Rate Indebtedness" means all Indebtedness which accrues
interest at a fixed rate.
"Floating Rate Indebtedness" means all Indebtedness which is not
Fixed Rate Indebtedness and which is not a Contingent Obligation or an Unused
Commitment.
"FMV Cap Rate" means eight and one half percent (8 1/2%).
"Foreign Property Interests" shall have the meaning set forth in
Section 5.8(i) hereof.
"Fronting Bank" shall mean Sumitomo Mitsui Banking Corporation, its
successors and assigns.
"GAAP" means generally accepted accounting principles recognized as
such in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession, which are
applicable to the circumstances as of the date of determination.
13
"Group of Loans" means, at any time, a group of Loans consisting of
(i) all Committed Loans which are Base Rate Loans at such time, or (ii) all
Committed Loans which are TIBOR Loans having the same Interest Period at such
time; provided that, if a Committed Loan of any particular Bank is converted to
or made as a Base Rate Loan pursuant to Section 8.2 or 8.5, such Committed Loan
shall be included in the same Group or Groups of Loans from time to time as it
would have been in if it had not been so converted or made.
"Guarantor Default" means any condition or event which with the
giving of notice or lapse of time or both would, unless cured or waived, become
a Guarantor Event of Default.
"Guarantor Event of Default" shall have the meaning set forth in
Section 6.3.
"Guarantors" means, collectively, AMB LP and AMB Corporation,
jointly and severally, and "Guarantor" means individually either AMB LP or AMB
Corporation
"Guarantors' Share" means AMB LP's and AMB Corporation's direct or
indirect share of a Consolidated Subsidiary, a Joint Venture Subsidiary or an
Investment Affiliate based upon Guarantors' percentage ownership (whether direct
or indirect) of such Consolidated Subsidiary, Joint Venture Subsidiary or
Investment Affiliate.
"Guaranty" means that certain Guaranty Agreement, dated as of the
date hereof, by Guarantors, jointly and severally, as guarantors, to
Administrative Agent, for the benefit of the Banks, for the payment of any
Borrower's debt or obligation to the Banks.
"Income from Operations" means, for any period, Net Income before
the deduction of (i) Taxes, (ii) minority interests, (iii) gains and losses on
asset sales, Debt Restructurings or write-ups or forgiveness of indebtedness,
(iv) gains and losses from extraordinary items, (v) payment of preferred
dividends, calculated in conformity with GAAP, and (vi) an adjustment to exclude
the straight-lining of rents.
"Indebtedness" as applied to any Person (and without duplication),
means (a) all indebtedness, obligations or other liabilities of such Person for
borrowed money or for the deferred purchase price of property or services,
including all liabilities of such Person evidenced by Securities or other
similar instruments, (b) all Contingent Obligations of such Person, (c) all
indebtedness obligations or other liabilities of such Person or others secured
by a Lien on any asset of such Person, in excess of 2.5% of Total Liabilities in
the aggregate, whether or not such indebtedness, obligations or liabilities are
assumed by, or are a personal liability of such Person, and (d) all other items
which, in accordance with GAAP, would be included as liabilities on the
liability side of, or in the footnotes to the balance sheet of such Person,
exclusive, however, of
14
all dividends and distributions declared but not yet paid. Notwithstanding the
foregoing, whenever the term "Indebtedness" is used with respect to the
Guarantors without expressly stating that such Indebtedness is to be determined
on a consolidated basis, such "Indebtedness" shall only include Guarantors'
Share of any Indebtedness of a Consolidated Subsidiary.
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Initial Borrower" means AMB Japan Finance Y.K., a Japan yugen
kaisha.
"Insolvency Event" means with respect to any Person: (a) such Person
becomes unable to pay its debts generally as such debts become due (shiharai
funou), admits to a creditor its inability to pay its debts generally as such
debts become due (shiharai teishi) or makes a general assignment or settlement
for the benefit of creditors (nin'i seiri); (b) a court having appropriate
jurisdiction enters a decree or order for relief in respect of such Person in an
involuntary case under any applicable Bankruptcy Law or similar law now or
hereafter in effect, or appoints a receiver, liquidator, assignee, custodian,
sequestrator, conservator (hozen kanrinin), trustee (kanzai nin), supervisor
(kantoku i'in), inspector (chosei i'in) or similar official of such Person, of
all or any substantial part of the property thereof, or orders the winding up or
liquidation of the affairs of such Person, and such decree or order remains
unstayed and in effect for a period of ninety (90) consecutive days; (c) such
Person commences a voluntary proceeding under any applicable Bankruptcy Law or
similar law now or hereafter in effect, or consents to or makes no objection
against the entry of an order for relief in an involuntary proceeding under any
such law, or applies for, consents to or acquiesces in the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, sequestrator,
conservator (hozen kanrinin), trustee (kanzai nin), supervisor (kantoku i'in),
inspector (chosa i'in) or similar official of such Person, of all or any
substantial part of the property thereof, or makes any general assignment or
settlement for the benefit of the creditors thereof; (d) such Person's assets,
such as its bank accounts, are subject to the issuance of an order or a notice
of provisional attachment (kari sashiosae), temporary attachment
(hozen-sashiosae) or permanent attachment (sashiosae); or (e) the clearing house
takes procedures for suspension of such Person's transactions with banks or
other financial institutions (torihiki teishi shobun).
"Interest Expense" means, for any period and without duplication,
total interest expense, whether paid, accrued or capitalized, determined in
accordance with GAAP, with respect to the Balance Sheet Indebtedness of the
Guarantors, plus Guarantors' Share of accrued, paid or capitalized interest with
respect to any Balance Sheet Indebtedness of Investment Affiliates and
Consolidated Subsidiaries (in each case, including, without limitation, the
interest component of Capital Leases but excluding interest expense covered by
an interest reserve established under a loan facility such as capitalized
construction interest provided for in a construction loan).
15
"Interest Period" means with respect to each TIBOR Borrowing, the
period commencing on the date of such Borrowing specified in the Notice of
Borrowing or on the date specified in the applicable Notice of Interest Rate
Election and ending 1, 2, 3 or 6 months thereafter (or a period less than 1
month with the reasonable approval of Administrative Agent, unless any Bank has
previously advised Administrative Agent and Guarantors that it is unable to
enter into a contract for Yen deposits in the Tokyo interbank market for an
Interest Period of the same duration) as the applicable Borrower may elect in
the applicable Notice of Borrowing or Notice of Interest Rate Election;
provided, that:
(a) any Interest Period which would otherwise end on a day which is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(c) no Interest Period may end later than the Maturity Date.
"Interest Rate Contracts" means, collectively, interest rate swap,
collar, cap or similar agreements providing interest rate protection.
"Intermediate Tier Entity" has the meaning set forth in Section
5.14.
"International FinCo" has the meaning set forth in Section 5.14.
"Intracompany Indebtedness" means Indebtedness whose obligor and
obligee are each either or both of the Guarantors or a Consolidated Subsidiary.
"Investment Affiliate" means any Person in whom either or both of
the Guarantors hold an equity interest, directly or indirectly, whose financial
results are not consolidated under GAAP with the financial results of either or
both Guarantors on their respective consolidated financial statements.
"Investment Affiliate EBITDA" means, for any period (i) Income from
Operations of an Investment Affiliate for such period, plus (ii) depreciation
and amortization expense and other non-cash items deducted in the calculation of
Income from Operations of such Investment Affiliate for such period, plus (iii)
Interest Expense deducted in the calculation of Income from Operations of such
Investment Affiliate for such period, all of the foregoing without duplication.
16
"Investment Grade Rating" means a rating for a Person's senior
long-term unsecured debt of BBB- or better from S&P or a rating of Baa3 or
better from Moody's. In the event that AMB LP receives Credit Ratings only from
S&P and Moody's, and such Credit Ratings are not equivalent, the lower of such
two (2) Credit Ratings shall be used to determine whether an Investment Grade
Rating was achieved. In the event that AMB LP receives more than two (2) Credit
Ratings, and such Credit Ratings are not all equivalent, the second highest
Credit Rating shall be used to determine whether an Investment Grade Rating was
achieved, provided that one of the highest two (2) Credit Ratings is from S&P or
Moody's; provided, further, that if neither of the highest two (2) Credit
Ratings is from S&P or Moody's, then the highest Credit Rating from either S&P
or Moody's shall be used to determine whether an Investment Grade Rating was
achieved.
"Investment Mortgages" means mortgages securing indebtedness with
respect to Real Property Assets directly or indirectly owed to AMB LP or any of
its Subsidiaries, including, without limitation, certificates of interest in
real estate mortgage investment conduits.
"Joint Lenders" has the meaning set forth in Section 5.14.
"Joint Venture Interests" means partnership, joint venture,
membership or other equity interests issued by any Person which is an Investment
Affiliate that is not a Subsidiary, is not consolidated with AMB LP and is not
controlled by a Joint Venture Parent.
"Joint Venture Parent" means AMB LP or one or more Financing
Partnerships of AMB LP which directly or indirectly owns any interest in a Joint
Venture Subsidiary.
"Joint Venture Subsidiary" means any entity (other than a Financing
Partnership) in which (i) a Joint Venture Parent owns at least 50% of the
economic interests and (ii) the sale or financing of any Property owned by such
Joint Venture Subsidiary is substantially controlled by a Joint Venture Parent,
subject to customary provisions set forth in the organizational documents of
such Joint Venture Subsidiary with respect to refinancings or rights of first
refusal granted to other members of such Joint Venture Subsidiary. For purposes
of the preceding sentence, the sale or financing of a Property owned by a Joint
Venture Subsidiary shall be deemed to be substantially controlled by a Joint
Venture Parent, if such Joint Venture Parent has the ability to exercise a
buy-sell right in the event of a disagreement regarding the sale or financing of
such Property.
"Lending Office" means, as to each Bank, its office, branch or
affiliate located at its address set forth in its Administrative Questionnaire
or such other office, branch or affiliate of such Bank as it may hereafter
designate as its Lending Office by notice to each Borrower and the
Administrative Agent.
17
"Letter(s) of Credit" has the meaning provided in Section 2.2(b).
"Letter of Credit Collateral" has the meaning provided in Section
6.7(b).
"Letter of Credit Collateral Account" has the meaning provided in
Section 6.7.
"Letter of Credit Documents" has the meaning provided in Section
2.19.
"Letter of Credit Usage" means at any time the sum of (i) the
aggregate maximum amount available to be drawn under the Letters of Credit then
outstanding, assuming compliance with all requirements for drawing referred to
therein, and (ii) the aggregate amount of any Borrower's unpaid obligations
under this Agreement in respect of the Letters of Credit.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement, in each case that has the effect of creating a
security interest, in respect of such asset. For the purposes of this Agreement,
AMB LP or any Consolidated Subsidiary shall be deemed to own subject to a Lien
any asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means a Base Rate Loan or a TIBOR Loan and "Loans" means Base
Rate Loans or TIBOR Loans or any combination of the foregoing.
"Loan Documents" means this Agreement, the Notes, the Guaranty, the
Qualified Borrower Joinder Agreement, the Ratifications, the Letter(s) of
Credit, the Letter of Credit Documents and the Security Documents
"Majority Banks" means at any time Banks having at least 51% of the
aggregate amount of Commitments, or if the Commitments shall have been
terminated, holding Notes evidencing at least 51% of the aggregate unpaid
principal amount of the Loans.
"Material Adverse Effect" means an effect resulting from any
circumstance or event or series of circumstances or events, of whatever nature
(but excluding general economic conditions), which does or could reasonably be
expected to, materially and adversely impair (i) the ability of the Guarantors
and their respective Consolidated Subsidiaries, taken as a whole, to perform
their respective obligations under the Loan Documents, or (ii) the ability of
Administrative Agent or the Banks to enforce the Loan Documents.
18
"Materials of Environmental Concern" means and includes pollutants,
contaminants, hazardous wastes, toxic and hazardous substances, asbestos, lead,
petroleum and petroleum by-products.
"Maturity Date" shall mean the date when all of the Obligations
hereunder shall be due and payable which shall be June 29, 2007, unless
otherwise extended in accordance with Section 2.10(b) or accelerated pursuant to
the terms hereof.
"Moody's" means Moody's Investors Services, Inc. or any successor
thereto.
"Mortgage" shall have the meaning set forth in Section 2.13(a).
"Mortgage Perfection Document" shall have the meaning set forth in
Section 2.13(e).
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has at any time after September 25, 1980 made contributions or has been
required to make contributions (for these purposes any Person which ceased to be
a member of the ERISA Group after September 25, 1980 will be treated as a member
of the ERISA Group).
"Negative Pledge" means, with respect to any Property, any covenant,
condition, or other restriction entered into by the owner of such Property or
directly binding on such Property which prohibits or limits the creation or
assumption of any Lien upon such Property to secure any or all of the
Obligations; provided, however, that such term shall not include (a) any
covenant, condition or restriction contained in any ground lease from a
governmental entity, and (b) financial covenants given for the benefit of any
Person that may be violated by the granting of any Lien on any Property to
secure any or all of the Obligations.
"Net Income" means, for any period, net income as calculated in
conformity with GAAP.
"Net Offering Proceeds" means all cash or other assets received by
either or both of the Guarantors as a result of the issuance or sale of common
shares of beneficial interest, preferred shares of beneficial interest,
partnership interests, preferred partnership units, limited liability company
interests, Convertible Securities or other ownership or equity interests in
either or both of the Guarantors less customary costs and discounts of issuance
paid by either or both of the Guarantors, as the case may be.
"Net Price" means, with respect to the purchase of any Property,
without duplication, (i) the aggregate purchase price paid as cash consideration
for such purchase (without adjustment for prorations), including, without
limitation, the principal amount
19
of any note received or other deferred payment to be made in connection with
such purchase (except as described in clause (ii) below) and the value of any
non-cash consideration delivered in connection with such purchase (including,
without limitation, shares or preferred shares of beneficial interest in AMB
Corporation and OP Units or Preferred OP Units (as defined in AMB LP's
partnership agreement)) plus (ii) reasonable costs of sale and non-recurring
taxes paid or payable in connection with such purchase or sale.
"Net Present Value" shall mean, as to a specified or ascertainable
dollar amount, the present value, as of the date of calculation of any such
amount using a discount rate equal to the Base Rate in effect as of the date of
such calculation.
"Non-Recourse Indebtedness" means Indebtedness with respect to which
recourse for payment is limited to (i) specific assets related to a particular
Property or group of Properties encumbered by a Lien securing such Indebtedness
or (ii) any Subsidiary (provided that if a Subsidiary is a partnership, there is
no recourse to AMB LP or AMB Corporation as a general partner of such
partnership); provided, however, that personal recourse of any Guarantor for any
such Indebtedness for fraud, misrepresentation, misapplication of cash, waste,
environmental claims and liabilities and other circumstances customarily
excluded by institutional lenders from exculpation provisions and/or included in
separate indemnification agreements in non-recourse financing of real estate
shall not, by itself, prevent such Indebtedness from being characterized as
Non-Recourse Indebtedness.
"Non-US Property" has the meaning set forth in Section 5.14.
"Non-US Property Owners" has the meaning set forth in Section 5.14.
"Notes" means (i) the promissory notes of the Initial Borrower and
of each Qualified Borrower that is not a TMK, substantially in the form of
Exhibit A-1 hereto and (ii) the undertakings of each Qualified Borrower that is
a TMK, substantially in the form of Exhibit A-2 hereto, evidencing the
obligation of each Borrower to repay the Loans, and "Note" means any one of such
promissory notes or undertakings issued hereunder. Each reference in this
Agreement to the "Note" of any Bank shall be deemed to refer to and include any
or all Notes, as the context may require.
"Notice of Borrowing" means a notice from Borrower in accordance
with Section 2.2.
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.7.
"Obligations" means all obligations, liabilities, indemnity
obligations and Indebtedness of every nature of the Credit Parties from time to
time owing to
20
Administrative Agent or any Bank under or in connection with this Agreement or
any other Loan Document.
"OFAC List" has the meaning set forth in Section 9.22(a).
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Holdings" means Unimproved Assets, Development Activity,
Joint Venture Interests, interests in Taxable REIT Subsidiaries and Investment
Mortgages, but only to the extent permitted in Section 5.8.
"Permitted Liens" means:
a. Liens for Taxes, assessments or other governmental charges not
yet due and payable or which are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted in
accordance with the terms hereof;
b. statutory liens of carriers, warehousemen, mechanics, materialmen
and other similar liens imposed by law, which are incurred in the ordinary
course of business for sums not more than sixty (60) days delinquent or
which are being contested in good faith in accordance with the terms
hereof;
c. deposits made in the ordinary course of business in connection
with worker's compensation, unemployment insurance and other social
security legislation or to secure liabilities to insurance carriers;
d. utility deposits and other deposits to secure the performance of
bids, trade contracts (other than for borrowed money), leases, purchase
contracts, construction contracts, governmental contracts, statutory
obligations, surety bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
e. Liens for purchase money obligations for equipment (or Liens to
secure Indebtedness incurred within 90 days after the purchase of any
equipment to pay all or a portion of the purchase price thereof or to
secure Indebtedness incurred solely for the purpose of financing the
acquisition of any such equipment, or extensions, renewals, or
replacements of any of the foregoing for the same or lesser amount);
provided that (i) the Indebtedness secured by any
21
such Lien does not exceed the purchase price of such equipment, (ii) any
such Lien encumbers only the asset so purchased and the proceeds upon
sale, disposition, loss or destruction thereof, and (iii) such Lien, after
giving effect to the Indebtedness secured thereby, does not give rise to
an Event of Default;
f. easements, rights-of-way, zoning restrictions, other similar
charges or encumbrances and all other items listed on Schedule B to any
Credit Party's owner's title insurance policies, except in connection with
any Indebtedness, for any Credit Party's Real Property Assets, so long as
the foregoing do not interfere in any material respect with the use or
ordinary conduct of the business of any Credit Party's and do not diminish
in any material respect the value of the Property to which it is attached
or for which it is listed;
g. (I) Liens and judgments which have been or will be bonded (and
the Lien on any cash or securities serving as security for such bond) or
released of record within thirty (30) days after the date such Lien or
judgment is entered or filed against any Credit Party and/or any
Subsidiary, or (II) Liens which are being contested in good faith by
appropriate proceedings for review and in respect of which there shall
have been secured a subsisting stay of execution pending such appeal or
proceedings and as to which the subject asset is not at risk of
forfeiture;
h. Liens on Property of any Credit Party or their respective
Subsidiaries (other than Qualifying Unencumbered Property) securing
Indebtedness which may be incurred or remain outstanding without resulting
in an Event of Default hereunder; and
i. Liens in favor of a Credit Party against any asset of any
Financing Partnership or Joint Venture Subsidiaries.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including, without limitation, a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
22
"Preferred Stock Subsidiary" means a corporation organized with two
classes of stock, consisting of one class of voting common shares and one class
of non-voting preferred shares, all of whose preferred shares are owned by a
Person seeking to be treated as a real estate investment trust under the Code
(or an operating partnership of which such Person is general partner) and all of
the common shares of which are owned by individuals or entities who are neither
owned nor controlled by such Person (but which individuals may be, and which
entities may be owned and controlled by, officers, directors or employees of
such Person), and to which such Person (or an operating partnership of which
such Person is general partner) has contributed at least ninety-five percent
(95%) or more of the equity capital raised by such corporation in exchange for
the issuance of such corporation's shares.
"Prime Rate" means for any day a fluctuating rate per annum equal to
the rate of interest in effect for such day as publicly announced by the
Administrative Agent from time to time as its "short prime rate" in Japan (it
being understood that the same shall not necessarily be the best rate offered by
the Administrative Agent to customers).
"Pro Rata Share" means, with respect to any Bank, as applicable, (a)
a fraction (expressed as a percentage), the numerator of which shall be the
amount of such Bank's Commitment and the denominator of which shall be the
aggregate amount of all of the Banks' Commitments as adjusted from time to time
in accordance with the provisions of this Agreement.
"Property" means, with respect to any Person, any real or personal
property, building, facility, structure, equipment or unit, or other asset owned
by such Person.
"Qualified Borrower" means a (i) TMK or limited liability company
(yugen kaisha) organized under the laws of Japan or (ii) a Japan branch of a
limited partnership, limited liability company or other business entity
organized under the laws of the United States (including any state or District
of Columbia), duly registered in Japan, which is at least 50% owned, directly or
indirectly, by AMB LP and of which AMB LP (or a Person that is owned and
controlled, directly or indirectly, by AMB LP) is the sole shareholder, general
partner or managing member, or otherwise exercises control over such entity and
the Indebtedness of which, in all cases, can be guaranteed by the Guarantors
pursuant to the provisions of the Guarantors' formation documents and who has
been added as a Qualified Borrower hereunder in accordance with Section 2.20(a).
The initial Qualified Borrowers are set forth on Schedule 1.1(a).
"Qualified Borrower Joinder Agreements" means, collectively, one or
more Qualified Borrower Joinder Agreements, among Administrative Agent (on
behalf of the Banks) and a Qualified Borrower relating to a Subsidiary which is
to become a Qualified Borrower hereunder at any time on or after the date of
this Agreement, the form of which is attached hereto as Exhibit B.
23
"Qualified Borrower Joinder Documents" means, as to any Qualified
Borrower Joinder Agreement, collectively, all documents, instruments and
certificates required by such Qualified Borrower Joinder Agreement to be
delivered pursuant to the terms thereof.
"Qualified Borrower Undertaking" means the undertakings of each
Qualified Borrower that is a TMK, substantially in the form of Exhibit A-2
hereto, evidencing the obligation of such Qualified Borrower to repay the Loans
made to such Qualified Borrower.
"Qualified Institution" means a Bank, or one or more banks, finance
companies, insurance or other financial institutions which (A) has (or, in the
case of a bank which is a subsidiary, such bank's parent has) a rating of its
senior debt obligations of not less than Baa-1 by Moody's or a comparable rating
by a rating agency acceptable to Administrative Agent, (B) has total assets in
excess of US$10,000,000,000 (or its equivalent in alternate currency) and (C) is
a Qualified Institutional Investor.
"Qualified Institutional Investor" (tekikaku kikan toshika) has the
meaning assigned thereto in Article 2, Section 3, item 1 of the Securities and
Exchange Law (shoken torihiki ho) of Japan (Law No. 25 of 1948, as amended from
time to time) and Article 4, Section 1 of the regulations relating to the
definitions contained in such Article 2.
"Qualified TMK" means a TMK which satisfies the requirements set
forth in Article 67-14 of the Special Taxation Measures Law (sozei tokubetsu
sochi hou) of Japan (Law No. 26 of 1957, as amended from time to time) for the
ability to deduct dividends from its taxable income and which deducts the
maximum possible amount thereunder.
"Qualifying Unencumbered Property" means any retail or industrial
Property (including Unimproved Assets and Construction Assets but excluding
interests in participating mortgages in which such Person's interest therein is
characterized as equity according to GAAP) from time to time which (i) is an
operating Real Property Asset which is owned directly or indirectly 100% in fee
(or ground leasehold) by AMB LP, a Financing Partnership or a Joint Venture
Subsidiary, (ii) is not subject (nor are any equity interests in such Property
that are owned directly or indirectly by a Guarantor or any Joint Venture Parent
subject) to a Lien which secures Indebtedness of any Person other than Permitted
Liens, (iii) is not subject (nor are any equity interests in such Property that
are owned directly or indirectly by a Guarantor or any Joint Venture Parent
subject) to any Negative Pledge (provided that a financial covenant given for
the benefit of any Person that may be violated by the granting of any Lien on
any Property to secure any or all of the Obligations shall not be deemed a
Negative Pledge); provided, however, if, at the end of any Fiscal Quarter, (x)
less than 85% of the rentable square feet of all Qualifying Unencumbered
Properties (other than Unimproved Assets and Construction Assets) are then
occupied by tenants, and (y) during the prior four (4) Fiscal Quarters,
24
less than an average of 85% of the rentable square feet of all Qualifying
Unencumbered Properties (other than Unimproved Assets and Construction Assets)
were occupied by tenants, then AMB LP shall select a sufficient number of
Qualifying Unencumbered Properties to be disregarded in determining Unencumbered
Asset Value such that as to the remaining Qualifying Unencumbered Properties
either (x) no less than 85% of the rentable square feet of such remaining
Qualifying Unencumbered Properties (other than Unimproved Assets and
Construction Assets) are then occupied by tenants, or (y) during the prior four
Fiscal Quarters, no less than an average of 85% of the rentable square feet of
such remaining Qualifying Unencumbered Properties (other than Unimproved Assets
and Construction Assets) were occupied by tenants. The initial Qualifying
Unencumbered Properties are set forth on Schedule 1.1(b).
"Ratification" shall have the meaning set forth in Section 2.13(a).
"Rating Agencies" means, collectively, S&P, Moody's and Fitch.
"Real Property Assets" means as to any Person as of any time, the
real property assets (including, without limitation, interests in participating
mortgages in which such Person's interest therein is characterized as equity
according to GAAP) owned directly or indirectly by such Person at such time.
"Recourse Debt" shall mean Indebtedness that is not Non-Recourse
Indebtedness.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66 2/3% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 66 2/3% of the aggregate unpaid
principal amount of the Loans.
"REIT" means a real estate investment trust, as defined under
Section 856 of the Code.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.
"Second Tier Funding Loan" has the meaning in Section 5.14.
"Secured Debt" means Indebtedness (but excluding Intracompany
Indebtedness), the payment of which is secured by a Lien (other than a Permitted
Lien, except for those Permitted Liens described in clause (h) of the definition
thereof) on any Property owned or leased by a Guarantor plus Guarantors' Share
of Indebtedness (but excluding Intracompany Indebtedness), the payment of which
is secured by a Lien (other
25
than a Permitted Lien, except for those Permitted Liens described in clause (h)
of the definition thereof) on any Property owned or leased by any Investment
Affiliate or any Consolidated Subsidiary.
"Secured Option" shall have the meaning set forth in Section 2.13
(a).
"Secured Property" shall have the meaning set forth in Section
2.13(a).
"Security Document" shall have the meaning set forth in Section
2.13(a).
"Securities" means any stock, partnership interests, shares, shares
of beneficial interest, voting trust certificates, bonds, debentures, notes or
other evidences of indebtedness, secured or unsecured, convertible, subordinated
or otherwise, or in general any instruments commonly known as "securities," or
any certificates of interest, shares, or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire any of the foregoing, but shall not include Joint Venture
Interests, any interest in any Subsidiary of a Guarantor, any interest in a
Taxable REIT Subsidiary, any Indebtedness which would not be required to be
included on the liabilities side of the balance sheet of the Guarantors on a
consolidated basis in accordance with GAAP, any Cash or Cash Equivalents or any
evidence of the Obligations.
"Share Pledge" shall have the meaning set forth in Section 2.13(a).
"Solvent" means, with respect to any Person, that the fair saleable
value of such Person's assets exceeds the Indebtedness of such Person.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by a Guarantor.
"Subsidiary Operating Partnership" shall mean a limited liability
company or limited partnership in which the only interest therein not owned
(directly or indirectly) by a Guarantor shall be preference interests or
preference units, respectively.
"Substantially Controlled by AMB LP" means, with respect to any
action, that such action is substantially controlled by AMB LP as contemplated
under Section 5.14.
"Syndication Agent" means Mizuho Corporate Bank, Ltd., in its
capacity as syndication agent hereunder and its permitted successors in such
capacity in accordance with the terms of this Agreement.
26
"TBI Pledge" shall have the meaning set forth in Section 2.13(a).
"Taxable REIT Subsidiary" means any corporation (other than a REIT)
in which AMB Corporation directly or indirectly owns stock and AMB Corporation
and such corporation jointly elect that such corporation shall be treated as a
taxable REIT subsidiary of AMB Corporation under and pursuant to Section 856 of
the Code.
"Taxes" means all federal, state, local and foreign income and gross
receipts taxes.
"Term" has the meaning set forth in Section 2.10.
"Termination Event" shall mean (i) a "reportable event", as such
term is described in Section 4043 of ERISA (other than a "reportable event" not
subject to the provision for 30-day notice to the PBGC), or an event described
in Section 4062(e) of ERISA, (ii) the withdrawal by any member of the ERISA
Group from a Multiemployer Plan during a plan year in which it is a "substantial
employer" (as defined in Section 4001(a)(2) of ERISA), or the incurrence of
liability by any member of the ERISA Group under Section 4064 of ERISA upon the
termination of a Multiemployer Plan, (iii) the filing of a notice of intent to
terminate any Plan under Section 4041 of ERISA, other than in a standard
termination within the meaning of Section 4041 of ERISA, or the treatment of a
Plan amendment as a distress termination under Section 4041 of ERISA, (iv) the
institution by the PBGC of proceedings to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or cause a trustee
to be appointed to administer, any Plan or (v) any other event or condition that
might reasonably constitute grounds for the termination of, or the appointment
of a trustee to administer, any Plan or the imposition of any liability or
encumbrance or Lien on the Real Property Assets or any member of the ERISA Group
under ERISA or the Code.
"TIBOR" means (a) the interest rate offered for Yen deposits for a
period comparable to the applicable Interest Period which appears on the screen
display designated as "Reuters Screen TIBM" under the caption "Average of 10
Banks" on the Reuters Service (or such other screen display or service as may
replace it for the purpose of displaying Tokyo interbank offered rates of prime
banks for Yen deposits) at or about 11:00 am (New York time) on the second
Business Day before the first day of the applicable Interest Period or (b) if no
such interest rate is available on the Reuters Service (or such replacement),
the interest rate offered for Yen deposits for a period comparable to the
applicable Interest Period which appears on the screen display designated as
"Euro-Yen TIBOR" on page 23070 of the Telerate Service published by the Japanese
Bankers Association (or such other screen display or service as may replace it
for the purpose of displaying Tokyo interbank offered rates of prime banks for
Yen deposits) at or about 11:00 am (New York time) on the second Business Day
before the first day of the applicable Interest Period; or (c) if no such
interest rate is available on the Reuters Service (or such replacement) or the
Telerate Service (or such replacement), the rate per annum which the TIBOR
Reference Bank is offering to leading banks in the
27
Tokyo interbank market for deposits in Yen for a period equal to the applicable
Interest Period at or about 11:00 a.m. (New York time) on the second Business
Day before the first day of the applicable Interest Period; or (d) if no such
interest rate is available on the Reuters Service (or such replacement) or the
Telerate Service (or such replacement) and the TIBOR Reference Bank is unable to
provide the rate referred to in (b) above, the Prime Rate.
"TIBOR Loan" means a Committed Loan to be made by a Bank as a TIBOR
Loan in accordance with the provisions of this Agreement.
"TIBOR Reference Bank" means Sumitomo Mitsui Banking Corporation".
"Tiered Non-US Property" has the meaning set forth in Section 5.14.
"TMK" means a special purpose corporation (tokutei mokuteki kaisha)
organized under TMK Law.
"TMK Law" means the Law Regarding Liquidation of Assets (Shisan no
Ryudoka ni Kansuru Horitsu) of Japan (Law No. 105 of 1998, as amended from time
to time).
"Total Asset Value" means, with respect to AMB LP and without
duplication, (i) the quotient obtained by dividing (a) (x) (1) Adjusted EBITDA
for the previous four (4) Fiscal Quarters most recently ended, minus (2) for any
Property (other than Construction Assets or Unimproved Assets) which was
acquired by AMB LP, a Consolidated Subsidiary or an Investment Affiliate in any
of the previous four (4) Fiscal Quarters, the Adjusted EBITDA attributable to
such Property to the extent the same was included in the Adjusted EBITDA of AMB
LP in clause (1) of this definition by (b) the FMV Cap Rate, plus (ii) for any
Property which was acquired by AMB LP in any of the previous four (4) Fiscal
Quarters, the sum of (x) the Net Price of the Property paid by AMB LP for such
Property and (y) the cost of capital expenditures actually incurred in
connection with such Property, plus (iii) for any Property which was acquired by
an Investment Affiliate or a Consolidated Subsidiary in any of the previous four
(4) Fiscal Quarters, the sum of (x) Guarantors' Share of the Net Price of the
Property paid by such Investment Affiliate or such Consolidated Subsidiary, as
applicable, for such Property, and (y) Guarantors' Share of the cost of capital
expenditures actually incurred in connection with such Property plus (iv) the
value of any Cash or Cash Equivalent owned by AMB LP, and Guarantors' Share of
any Cash or Cash Equivalents owned by any Consolidated Subsidiary or Investment
Affiliate plus (v) the value of any Construction Assets, Unimproved Assets and
any other tangible assets of AMB LP (including foreign currency exchange
agreements, to the extent such agreements are material and are reported or are
required under GAAP to be reported by AMB LP in its financial statements), as
measured on a GAAP basis, plus (vi) Guarantors' Share of the value of any
Construction Assets, Unimproved Assets and any other tangible assets of any
28
Investment Affiliate or any Consolidated Subsidiary as measured on a GAAP basis.
For purposes of the foregoing, a Property which was a Construction Asset will be
deemed to have been acquired on the date it ceases to be a Construction Asset.
"Total Liabilities" means, as of the date of determination and
without duplication, all Balance Sheet Indebtedness of the Guarantors plus
Guarantors' Share of all Balance Sheet Indebtedness of Investment Affiliates and
Consolidated Subsidiaries.
"Unencumbered Asset Value" means (i) for any Qualifying Unencumbered
Properties (other than Unimproved Assets and Construction Assets) which were
neither acquired or disposed of by AMB LP, a Financing Partnership, a Preferred
Stock Subsidiary or a Joint Venture Subsidiary in the previous four (4) Fiscal
Quarters, the quotient of (a) (x) the Unencumbered Net Operating Income for such
Fiscal Quarters, and less (z) in the case of any Qualifying Unencumbered
Property located outside of the United States, an amount equal to the applicable
withholding taxes imposed by any foreign jurisdiction applicable to the
Unencumbered Net Operating Income attributable to any such Qualifying
Unencumbered Property for the applicable period, divided by (b) the FMV Cap
Rate, plus (ii) for all Unimproved Assets and Construction Assets and for all
Qualifying Unencumbered Properties owned (directly or beneficially) by AMB LP,
any Financing Partnership, Preferred Stock Subsidiary or any Joint Venture
Subsidiary which were acquired (directly or indirectly) by AMB LP, any Financing
Partnership, any Preferred Stock Subsidiary or any Joint Venture Subsidiary
during any of the previous four (4) Fiscal Quarters most recently ended, the
aggregate Net Price of such Qualifying Unencumbered Properties paid by AMB LP or
its Affiliates for such Qualifying Unencumbered Properties plus all capital
expenditures actually incurred in connection with such Property; provided,
however, that, unless otherwise approved by the Required Banks, (aa) in the
event any such Qualifying Unencumbered Property is owned by a Joint Venture
Subsidiary, the amount of the Unencumbered Net Operating Income attributable to
such Qualifying Unencumbered Property for purposes of clause (i) above and the
Net Price of, and capital expenditures actually incurred in connection with,
such Qualifying Unencumbered Property for the purposes of clause (ii) above
shall be reduced to Guarantor's Share thereof, (bb) the portion of the aggregate
amount of the Unencumbered Asset Value attributable to Qualifying Unencumbered
Properties that are Qualifying Unencumbered Properties located in the United
States and owned by a Joint Venture Subsidiary or a Consolidated Subsidiary
(other than Qualifying Unencumbered Properties owned by a Subsidiary Operating
Partnership) (after first taking into account the adjustment provided in clause
(aa) of this proviso) which would cause such aggregate amount to exceed fifteen
percent (15%) of the total Unencumbered Asset Value at such time will be
disregarded in determining Unencumbered Asset Value, (cc) the portion of the
amount of the Unencumbered Asset Value attributable to all Qualifying
Unencumbered Property located outside of the United States (after first taking
into account the adjustment provided in clause (aa) of this proviso) which would
cause such amount to exceed fifteen percent (15%) of the total Unencumbered
Asset Value at such time (after making all adjustments required by this proviso)
will be
29
disregarded in determining Unencumbered Asset Value, (dd) the portion of the
aggregate amount of the Unencumbered Asset Value attributable to Qualifying
Unencumbered Properties that are Unimproved Assets or Construction Assets (after
first taking into account the adjustment provided in clause (aa) of this
proviso) which would cause such amount to exceed twenty percent (20%) of the
total Unencumbered Asset Value at such time (after making all adjustments
required by this proviso) will be disregarded in determining Unencumbered Asset
Value and (ee) the portion of the aggregate amount of the Unencumbered Asset
Value attributable to such Qualifying Unencumbered Property described in clauses
(bb), (cc) and (dd) which would cause such aggregate amounts to exceed
twenty-five percent (25%) of the total Unencumbered Asset Value at such time
will be disregarded in determining Unencumbered Asset Value (after first taking
into account the adjustment provided in clause (aa) of this proviso). For
purposes of the foregoing, a Qualifying Unencumbered Property which was a
Construction Asset shall be deemed to have been acquired on the date it ceases
to be a Construction Asset.
"Unencumbered Net Operating Cash Flow" means, as of any date of
determination, the Unencumbered Net Operating Income for the previous four (4)
Fiscal Quarters (provided that as to any Qualifying Unencumbered Property
acquired during such period and owned for not less than one (1) Fiscal Quarter,
Unencumbered Net Operating Income attributable to such period occurring after
such acquisition shall be annualized).
"Unencumbered Net Operating Income" means, for any period, for all
Qualifying Unencumbered Properties, the aggregate revenues from each such
Qualifying Unencumbered Property for such period (including, without limitation,
lease termination fees appropriately amortized, but excluding deferred rents
receivable), less the cost of maintaining such Qualifying Unencumbered
Properties (including, without limitation, taxes, insurance, repairs and
maintenance, but excluding depreciation, amortization, interest costs and
capital expenditures) (provided that as to any Qualifying Unencumbered Property
acquired during such period, only revenues and property level expenses
attributable to such period occurring after such acquisition shall be included),
as adjusted for (i) capital expenditure reserves at the rate of Ten Cents (US)
(US$0.10, or in the case of any Qualifying Unencumbered Property owned by a
Joint Venture Subsidiary, Guarantors' Share of Ten Cents (US) (US$0.10)) per
square foot per annum of space leased as of the applicable date of determination
(provided that, as to any Qualifying Unencumbered Property acquired during such
period, such amount per square foot shall be pro-rated for the period of
ownership) and (ii) to exclude the effects of straight-lining of rents.
"Unimproved Assets" means Real Property Assets (or, in the case of
any Real Property Assets to be developed in phases, any phase thereof)
containing no material improvements other than infrastructure improvements such
as roads, utility feeder lines and the like.
30
"United States" means the United States of America, including the
fifty states and the District of Columbia.
"Unqualified TMK" means a TMK which is not a Qualified TMK.
"Unsecured Debt" means the amount of Indebtedness (excluding
Intracompany Indebtedness) for borrowed money of the Guarantors, any Financing
Partnership, any Preferred Stock Subsidiary or Joint Venture Subsidiary and
which is not Secured Debt, including, without limitation, the amount of all then
outstanding Loans, provided, however, for the purpose of calculating the ratio
of outstanding Unsecured Debt to Unencumbered Asset Value, in the case of any
Preferred Stock Subsidiary, Joint Venture Subsidiary or Consolidated Subsidiary,
only an amount equal to the Guarantors' Share in each such entity (excluding
Intracompany Indebtedness) times any Indebtedness for borrowed money of such
entity shall be included in Unsecured Debt.
"Unsecured Interest Expense" means, as of any date of determination,
for the previous four (4) Fiscal Quarters, the Interest Expense paid, accrued or
capitalized on Unsecured Debt.
"Unused Commitments" shall mean an amount equal to all unadvanced
funds (other than unadvanced funds in connection with any construction loan)
which any third party is obligated to advance to AMB LP or another Person or
otherwise pursuant to any loan document, written instrument or otherwise.
"Yen" and "JPY" shall denote the lawful currency of Japan.
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP
applied on a basis consistent (except for changes concurred in by AMB LP's
independent public accountants) with the most recent audited consolidated
financial statements of AMB LP and its Consolidated Subsidiaries delivered to
the Administrative Agent; provided that for purposes of references to the
financial results and information of "AMB Corporation, on a consolidated basis,"
AMB Corporation shall be deemed to own one hundred percent (100%) of the
partnership interests in AMB LP; and provided further that, if AMB LP notifies
the Administrative Agent that AMB LP wishes to amend any covenant in Article V
to eliminate the effect of any change in GAAP on the operation of such covenant
(or if the Administrative Agent notifies AMB LP that the Required Banks wish to
amend Article V for such purpose), then AMB LP's compliance with such covenant
shall be determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either such notice is withdrawn
or such covenant is amended in a manner reasonably satisfactory to AMB LP and
the Required Banks.
31
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to each Borrower pursuant
to Article 2 on the same date, all of which Loans are of the same type (subject
to Article 8) and, except in the case of Base Rate Loans have the same initial
Interest Period. Borrowings are classified for purposes of this Agreement either
by reference to the pricing of Loans comprising such Borrowing or by reference
to the provisions of Article 2 under which participation therein is determined
(i.e., a "Committed Borrowing" is a Borrowing under Section 2.1 in which all
Banks participate in proportion to their Commitments).
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend. Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, (a) to make Loans to each
Borrower and participate in Letters of Credit issued by the Fronting Bank on
behalf of each Borrower pursuant to this Article from time to time during the
term hereof in amounts such that the aggregate principal amount of Committed
Loans by such Bank at any one time outstanding together with such Bank's pro
rata share of the Letter of Credit Usage at such time shall not exceed the
amount of its Commitment. Each Borrowing outstanding under this Section 2.1
shall be in an aggregate principal amount of JPY300,000,000 or an integral
multiples of JPY1,000,000 in excess thereof (except that any such Borrowing may
be in the aggregate amount available in accordance with Section 3.2(b), or in
any amount required to reimburse the Fronting Bank for any drawing under any
Letter of Credit) and shall be made from the several Banks ratably in proportion
to their respective Commitments. In no event shall the aggregate amount
outstanding at any time, plus the outstanding amount of the Letter of Credit
Usage, exceed JPY24,000,000,000 (the "Facility Amount"). Subject to the
limitations set forth herein, any amounts repaid may be reborrowed.
SECTION 2.2. Notice of Borrowing.
(a) With respect to any Committed Borrowing, the applicable Borrower
shall give Administrative Agent notice not later than 1:00 P.M. (New York time)
(x) the second (2nd) Business Day prior to each Base Rate Borrowing, or (y) the
fourth (4th) Business Day before each TIBOR Borrowing or (z) with respect to any
Secured Borrowing, regardless of whether it is a Base Rate Borrowing or a TIBOR
Borrowing, the tenth (10th) Business Day prior to such Secured Borrowing,
specifying:
(i) the date of such Borrowing, which shall be a Business Day,
(ii) the aggregate amount of such Borrowing,
32
(iii) whether the Loans comprising such Borrowing are to be Base
Rate Loans or TIBOR Loans,
(iv) in the case of a TIBOR Borrowing, the duration of the Interest
Period applicable thereto, subject to the provisions of the definition of
Interest Period,
(v) such information as is requested in Schedule 2.2(a) hereto
relating to the project, if any, for which the Borrowing will be used,
unless such information has been previously provided;
(vi) if such Borrowing is a Secured Borrowing, the Secured Property
and the collateral to be granted;
(vii) payment instructions for delivery of such Borrowing; and
(viii) certify that no Guarantor Default or Guarantor Event of
Default has occurred and is continuing and, with respect to such Borrower,
no Borrower Default or Borrower Event of Default has occurred and is
continuing.
(b) The applicable Borrower shall give the Administrative Agent and
the Fronting Bank written notice in the event that it desires to have Letters of
Credit (each, a "Letter of Credit") issued on behalf of such Borrower or a
Subsidiary thereof hereunder no later than 1:00 P.M. (New York time) at least
five (5) Business Days (or if such Letter of Credit is to be secured, at least
ten (10) Business Days) prior to, but excluding, the date of such issuance. Each
such notice shall (i) specify the aggregate amount of the requested Letters of
Credit, (ii) specify the individual amount of each requested Letter of Credit
and the number of Letters of Credit to be issued, (iii) specify the date of such
issuance (which shall be a Business Day)), (iv) state the name and address of
the beneficiary, (vi) the expiration date of the Letter of Credit (which in no
event shall be later than fifteen (15) days prior to the Maturity Date or twelve
(12) months after the issuance of such Letter of Credit, whichever is earlier),
(vi) state the purpose and circumstances for which such Letter of Credit is
being issued, (vii) specify the terms upon which each such Letter of Credit may
be drawn down (which terms shall not leave any discretion to Fronting Bank),
(viii) if such Letter of Credit is to be issued on behalf of a Subsidiary of
such Borrower, the identity of such Subsidiary; (ix) if such Letter of Credit is
to be secured, identify the Secured Property to be acquired and the collateral
to be granted, (x) such information as is requested in Schedule 2.2(a) hereto
relating to the project, if any, for which the Letter of Credit will be used and
(xi) certify that no Guarantor Default or Guarantor Event of Default has
occurred and is continuing and, with respect to such Borrower, that no Borrower
Default or Borrower Event of Default has occurred and is continuing. Each such
notice may be revoked telephonically by such Borrower to the Fronting Bank and
the Administrative Agent any time prior to the issuance of the Letter of Credit
by the Fronting Bank, provided such revocation is confirmed in writing by such
Borrower to the Fronting Bank and the Administrative
33
Agent within two (2) Business Days by facsimile. Notwithstanding anything
contained herein to the contrary, such Borrower shall complete and deliver to
the Fronting Bank any required documentation in connection with any requested
Letter of Credit no later than the third (3rd) Business Day prior to the date of
issuance thereof (including, without limitation, a Note (if not previously
delivered hereunder)). No later than 1:00 P.M. (New York time) on the date that
is four (4) Business Days prior to, but excluding, the date of issuance, such
Borrower shall specify a precise description of the documents and the verbatim
text of any certificate to be presented by the beneficiary of such Letter of
Credit, which if presented by such beneficiary prior to the expiration date of
the Letter of Credit would require the Fronting Bank to make a payment under the
Letter of Credit; provided, that Fronting Bank may, in its reasonable judgment,
require changes in any such documents and certificates only in conformity with
changes in customary and commercially reasonable practice or law and, provided
further, that no Letter of Credit shall require payment against a conforming
draft to be made thereunder on the third (3rd) Business Day following the date
that such draft is presented if such presentation is made later than 1:00 P.M.
New York time, as applicable) (except that if the beneficiary of any Letter of
Credit requests at the time of the issuance of its Letter of Credit that payment
be made on the same Business Day) against a conforming draft, such beneficiary
shall be entitled to such a same day draw, provided such draft is presented to
the Fronting Bank no later than 1:00 P.M. (New York time) and provided further
such Borrower shall have requested to the Fronting Bank and the Administrative
Agent that such beneficiary shall be entitled to a same day draw). In
determining whether to pay on such Letter of Credit, the Fronting Bank shall be
responsible only to determine that the documents and certificates required to be
delivered under the Letter of Credit have been delivered and that they comply on
their face with the requirements of that Letter of Credit. All Letters of Credit
may be presented for payment in Japan and, if required by the beneficiary
thereunder, shall be paid in Japan.
SECTION 2.3. Intentionally Deleted.
SECTION 2.4. Intentionally Deleted.
SECTION 2.5. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing from any Borrower in
accordance with Section 2.2 hereof, the Administrative Agent shall, on the date
such Notice of Borrowing is received by the Administrative Agent, notify each
Bank of the contents thereof and of such Bank's share of such Borrowing, of the
interest rate determined pursuant thereto and the Interest Period(s) (if
different from those requested by such Borrower) and such Notice of Borrowing
shall not thereafter be revocable by such Borrower, unless such Borrower shall
pay any applicable expenses pursuant to Section 2.15.
(b) Not later than 2:00 p.m. (New York time) on the date of each
Committed Borrowing as indicated in the applicable Notice of Borrowing, each
Bank
34
shall (except as provided in subsection (d) of this Section) make available its
share of such Committed Borrowing in Yen immediately available in Tokyo, Japan,
to the Administrative Agent at its address referred to in Section 9.1. If any
Borrower has requested the issuance of a Letter of Credit, no later than 1:00
p.m. (New York time) on the date of such issuance as indicated in the notice
delivered pursuant to Section 2.2(b), the Fronting Bank shall issue such Letter
of Credit in the amount so requested and deliver the same to the applicable
Borrower, with a copy thereof to the Administrative Agent. Immediately upon the
issuance of each Letter of Credit by the Fronting Bank, the Fronting Bank shall
be deemed to have sold and transferred to each other Bank, and each such other
Bank shall be deemed, and hereby agrees, to have irrevocably and unconditionally
purchased and received from the Fronting Bank, without recourse or warranty, an
undivided interest and a participation in such Letter of Credit, any drawing
thereunder, and its obligation to pay its Pro Rata Share with respect thereto,
and any security therefor or guaranty pertaining thereto, in an amount equal to
such Bank's ratable share thereof. Upon any change in any of the Commitments in
accordance herewith, there shall be an automatic adjustment to such
participations to reflect such changed shares. The Fronting Bank shall have the
primary obligation to fund any and all draws made with respect to such Letter of
Credit notwithstanding any failure of a participating Bank to fund its ratable
share of any such draw. The Administrative Agent will instruct the Fronting Bank
to make such Letter of Credit available to the applicable Borrower, and the
Fronting Bank shall make such Letter of Credit available to the applicable
Borrower, at its aforesaid address or at such address in Japan as such Borrower
shall request on the date of the Borrowing.
(c) Unless the Administrative Agent shall have received notice from
a Bank prior to the date of any Borrowing that such Bank will not make available
to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with this
Section 2.5 and the Administrative Agent may, in reliance upon such assumption,
but shall not be obligated to, make available to the applicable Borrower on such
date a corresponding amount on behalf of such Bank. If and to the extent that
such Bank shall not have so made such share available to the Administrative
Agent, such Bank agrees to repay to the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date such amount is made available to the applicable Borrower until the date
such amount is repaid to the Administrative Agent, at the rate of interest
applicable to such Borrowing hereunder. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement. If such Bank shall not pay to Administrative Agent such corresponding
amount after reasonable attempts are made by Administrative Agent to collect
such amounts from such Bank, the applicable Borrower agrees to repay to
Administrative Agent forthwith on demand such corresponding amounts together
with interest thereto, for each day from the date such amount is made
35
available to such Borrower until the date such amount is repaid to
Administrative Agent, at the interest rate applicable thereto one (1) Business
Day after demand. Nothing contained in this Section 2.5(d) shall be deemed to
reduce the Commitment of any Bank or in any way affect the rights of such
Borrower with respect to any defaulting Bank or Administrative Agent. The
failure of any Bank to make available to the Administrative Agent such Bank's
share of any Borrowing in accordance with Section 2.5(b) hereof shall not
relieve any other Bank of its obligations to fund its Commitment, in accordance
with the provisions hereof.
(d) Subject to the provisions hereof, the Administrative Agent shall
make available each Borrowing to the applicable Borrower in Yen immediately
available in accordance with, and on the date set forth in, the applicable
Notice of Borrowing.
SECTION 2.6. Notes.
(a) The Loans of each Borrower shall be evidenced by a single Note
made by the applicable Borrower payable to the order of the Administrative
Agent, on behalf of the Banks for the account of their respective Lending
Offices.
(b) Notwithstanding the provisions of Section 2.6(a) above, each
Bank may, by notice to any Borrower and the Administrative Agent, request that
its Loans to such Borrower be evidenced by a separate Note payable to the order
of such Bank for the account of its Lending Office, in which event the Note made
by such Borrower pursuant to Section 2.6(a) above shall not include or evidence
the Loans made by such Bank to such Borrower. Each such Note shall be in
substantially the form of Exhibit A-1 or Exhibit A-2, as applicable, hereto with
appropriate modifications to reflect the fact that it evidences solely Loans
made by the applicable Bank.
(c) Each Bank may, by notice to any Borrower and the Administrative
Agent, request that its Loans of a particular type be evidenced by a separate
Note in an amount equal to the aggregate unpaid principal amount of such Loans.
Any additional costs incurred by the Administrative Agent, such Borrower or the
Banks in connection with preparing such a Note shall be at the sole cost and
expense of the Bank requesting such Note. In the event any Loans evidenced by
such a Note are paid in full prior to the Maturity Date, any such Bank shall
return such Note to the applicable Borrower. Each such Note shall be in
substantially the form of Exhibit A-1 or Exhibit A-2, as applicable, hereto with
appropriate modifications to reflect the fact that it evidences solely Loans of
the relevant type. Upon the execution and delivery of any such Note, any
existing Note payable to such Bank shall be returned, replaced or modified
accordingly.
(d) Upon receipt of each Note pursuant to Section 3.1(a), the
Administrative Agent shall forward a copy of such Note to each Bank. The
Administrative Agent shall record the date, amount, type and maturity of each
Loan made by
36
each Bank and the date and amount of each payment of principal made by each
Borrower, with respect thereto, and may, if the Administrative Agent so elects
in connection with any transfer or enforcement of its Note, endorse on the
appropriate schedule appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding; provided that the failure of
the Administrative Agent to make any such recordation or endorsement shall not
affect the obligations of any Borrower hereunder or under the Notes. The
Administrative Agent is hereby irrevocably authorized by each Borrower so to
endorse its Note and to attach to and make a part of its Note a continuation of
any such schedule as and when required.
(e) Upon receipt of each Bank's Note pursuant to Section 2.6(b) or
(c) above, the Administrative Agent shall forward such Note to such Bank. Each
Bank shall record the date, amount, type and maturity of each Loan made by it
and the date and amount of each payment of principal made by the applicable
Borrower, with respect thereto, and may, if such Bank so elects in connection
with any transfer or enforcement of its Note, endorse on the appropriate
schedule appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding; provided that the failure of any
Bank to make any such recordation or endorsement shall not affect the
obligations of any Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by each Borrower so to endorse its Note and to attach to
and make a part of its Note a continuation of any such schedule as and when
required.
(f) The Committed Loans shall mature, and the principal amount
thereof shall be due and payable, on the Maturity Date.
(g) There shall be no more than five (5) TIBOR Groups of Loans
outstanding at any one time with respect to each Borrower.
SECTION 2.7. Method of Electing Interest Rates. (a) The Loans
included in each Committed Borrowing shall bear interest initially at the type
of rate specified by the applicable Borrower in the applicable Notice of
Borrowing. Thereafter, each Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in each
case to the provisions of Article VIII) made to such Borrower, as follows:
(i) if such Loans are Base Rate Loans, the applicable Borrower
may elect to convert all or any portion of such Loans to TIBOR Loans as of any
Business Day;
(ii) if such Loans are TIBOR Loans, the applicable Borrower
may elect to convert all or any portion of such Loans to Base Rate Loans and/or
elect to continue all or any portion of such Loans as TIBOR Loans for an
additional Interest Period or additional Interest Periods, in each case
effective on the last day of the then current Interest Period applicable to such
Loans, or on such other
37
date designated by the applicable Borrower in the Notice of Interest Rate
Election provided such Borrower shall pay any losses pursuant to Section 2.15.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent at least four (4) Business Days
prior to, but excluding, the effective date of the conversion or continuation
selected in such notice. A Notice of Interest Rate Election may, if it so
specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is allocated ratably
among the Loans comprising such Group, (ii) the portion to which such Notice
applies, and the remaining portion to which it does not apply, are JPY30,000,000
or any larger multiple of JPY1,000,000, (iii) there shall be no more than five
(5) TIBOR Groups of Loans with respect to each Borrower outstanding at any time,
(iv) no Committed Loan may be continued as, or converted into, a TIBOR Loan when
any Guarantor Event of Default has occurred and is continuing or, with respect
to such Borrower delivering such Notice of Interest Rate Election, a Borrower
Event of Default has occurred and is continuing, and (v) no Interest Period
shall extend beyond the Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the applicable clause
of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted,
the new type of Loans and, if such new Loans are TIBOR Loans, the duration of
the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as TIBOR Loans for an
additional Interest Period, the duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from any
Borrower pursuant to subsection (a) above, the Administrative Agent shall notify
each Bank the same day as it receives such Notice of Interest Rate Election of
the contents thereof, the interest rates determined pursuant thereto and the
Interest Periods (if different from those requested by such Borrower) and such
notice shall not thereafter be revocable by such Borrower. If the applicable
Borrower fails to deliver a timely Notice of Interest Rate Election to the
Administrative Agent for any Group of TIBOR Loans, such Loans shall be converted
into Base Rate Loans, and
38
such Borrower shall be deemed to have made a Base Rate Borrowing in the amount
of such Group of TIBOR Loans (for which such Borrower shall be deemed to have
timely given a Notice of Borrowing pursuant to Section 2.2 and all other
conditions to such Borrowing shall be deemed waived or satisfied) and the
proceeds of such Borrowing shall be deemed to have been used to repay such Group
of TIBOR Loans on the last day of the then current Interest Period applicable
thereto.
SECTION 2.8. Interest Rates.
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until the
date it is repaid or converted into a TIBOR Loan pursuant to Section 2.7, at a
rate per annum equal to sum of the Base Rate plus the Applicable Margin for Base
Rate Loans for such day.
(b) Each TIBOR Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at a
rate per annum equal to the sum of the Applicable Margin for TIBOR Loans plus
TIBOR for such day.
(c) In the event that, and for so long as, any Event of Default
shall have occurred and be continuing, the outstanding principal amount of the
Loans, and, to the extent permitted by applicable law, overdue interest in
respect of all Loans, shall bear interest at the annual rate equal to the sum of
the Base Rate and four percent (4%) (the "Default Rate"); provided, however,
with respect to any Borrower Event of Default, the Default Rate shall apply only
to those Loans made to the defaulting Borrower.
(d) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the applicable Borrower and the Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
demonstrable error.
(e) Interest on all Loans bearing interest at the Base Rate shall be
payable on the first Business Day of each calendar month. Interest on all TIBOR
Loans shall be payable on the last Business Day of the applicable Interest
Period, but no less frequently than every three months determined on the basis
of the first (1st) day of the Interest Period applicable to the Loan in
question.
SECTION 2.9. Fees.
(a) Facility Fee. For the period beginning on the date hereof and
ending on the date the Obligations are paid in full and this Agreement is
terminated (the "Facility Fee Period"), the Credit Parties shall pay to the
Administrative Agent
39
for the account of the Banks a facility fee on the aggregate Commitments at the
Applicable Fee Percentage, provided that, with respect to the Borrowers, such
obligation shall be divided ratably in proportion to such Borrower's respective
Commitments and no Borrower shall be liable for an amount greater than its
prorata share of such fees, provided, further, that the Guarantors shall be
liable for full amount of such fees. The facility fee shall be payable in
arrears on each January 1, April 1, July 1 and October 1 during the Facility Fee
Period. The Facility Fee shall be payable in Yen.
(b) Letter of Credit Fee. During the Term, each Borrower shall pay
to the Administrative Agent, for the account of the Banks in proportion to their
interests in respect of undrawn Letters of Credit issued for the account of such
Borrower, a fee (a "Letter of Credit Fee") in an amount, provided that no
Guarantor Event of Default shall have occurred and be continuing and no Borrower
Event of Default shall have occurred and be continuing with respect to such
Borrower, equal to a rate per annum equal to the then percentage per annum of
the Applicable Margin with respect to TIBOR Loans, on the daily average of such
issued and undrawn Letters of Credit, which fee shall be payable, in arrears, on
each January 1, April 1, July 1 and October 1 during the Term. From the
occurrence, and during the continuance, of a Guarantor Event of Default or a
Borrower Event of Default with respect to such Borrower, such fee shall be
increased to be equal to four percent (4%) per annum on the daily average of
such issued and undrawn Letters of Credit. The Letter of Credit Fee shall be
payable in Yen.
(c) Fronting Bank Fee. Each Borrower shall pay any Fronting Bank,
for its own account, a fee (a "Fronting Bank Fee") (i) at a rate per annum equal
..125% of the undrawn amount of such Letter of Credit issued by such Fronting
Bank for the account of such Borrower (the "Annual Fronting Bank Fee") plus (ii)
JPY25,000, (the "Administrative Fee") which Fronting Bank Fee shall be in
addition to and not in lieu of, the Letter of Credit Fee. The Annual Fronting
Bank Fee shall be payable in arrears on each January 1, April 1, July 1 and
October 1 during the Term in Yen. The Administrative Fee shall be payable upon
the issuance of each Letter of Credit and shall be payable in Yen.
(d) Extension Fee. If AMB LP elects to extend the term of the Loan
in accordance with Section 2.10(b), AMB LP shall pay to the Administrative
Agent, for the account of the Banks in proportion to their interests, a fee (a
"Extension Fee") in an amount equal to 0.25% of the aggregate Commitments. The
Extension Fee shall be paid by AMB LP on or before the Extension Date in Yen.
(e) Fees Non-Refundable. All fees set forth in this Section 2.9
shall be deemed to have been earned on the date payment is due in accordance
with the provisions hereof and shall be non-refundable. The obligation of any
Credit Party to pay such fees in accordance with the provisions hereof shall be
binding upon
40
the such Credit Party and shall inure to the benefit of the Administrative Agent
and the Banks regardless of whether any Loans are actually made.
SECTION 2.10. Maturity Date.
(a) The term (the "Term") of the Commitments (and each Bank's
obligations to make Loans and to participate in Letters of Credit hereunder)
shall terminate and expire, and each Borrower shall return or cause to be
returned all Letters of Credit issued for the account of such Borrower to the
Fronting Bank on the Maturity Date. Upon the date of the termination of the
Term, any Loans then outstanding (together with accrued interest thereon and all
other Obligations) shall be due and payable on such date.
(b) Notwithstanding the foregoing, AMB LP may extend the Maturity
Date for a period of one (1) year upon the following terms and conditions: (i)
delivery by AMB LP of a written notice to the Administrative Agent (the
"Extension Notice") on or before a date that is not more than twelve and one
half (12 1/2) months nor less than one (1) month prior to the Maturity Date,
which Extension Notice the Administrative Agent shall promptly deliver to the
Banks; (ii) no Event of Default shall have occurred and be continuing both on
the date AMB LP delivers the Extension Notice and on the original Maturity Date
(the "Extension Date"), (iii) AMB LP shall maintain an Investment Grade Rating
from both S&P and Moody's, and (iv) AMB LP shall pay the Extension Fee to
Administrative Agent on or before the Extension Date. AMB LP's delivery of the
Extension Notice shall be irrevocable.
SECTION 2.11. Optional Prepayments.
(a) Each Borrower may, upon at least two (2) Business Days' notice
to the Administrative Agent, prepay any Base Rate Loans made to such Borrower,
in whole or in part at any time, or from time to time in part in amounts
aggregating for all Base Rate Loans of such Borrower being prepaid at the same
time JPY1,000,000 or more, by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Banks
included in such Group or Borrowing.
(b) Each Borrower may, upon at least five (5) Business Days' notice
to the Administrative Agent, pay all or any portion of any TIBOR Loan made to
such Borrower as of the last day of the Interest Period applicable thereto in
amounts aggregating for all TIBOR Loans of such Borrower being prepaid at the
same time JPY100,000,000 or more. Except as provided in Article 8 and except
with respect to any TIBOR Loan which has been converted to a Base Rate Loan
pursuant to Section 8.2, 8.3 or 8.4 hereof, a Borrower may not prepay all or any
portion of the principal amount of any TIBOR Loan made to such Borrower prior to
the end of the Interest Period applicable thereto unless such Borrower shall
also pay any applicable
41
expenses pursuant to Section 2.15. Each such optional prepayment shall be in the
amounts set forth in Section 2.11(a) above and shall be applied to prepay
ratably the Loans of the Banks included in any Group of TIBOR Loans, except that
any TIBOR Loan which has been converted to a Base Rate Loan pursuant to Section
8.2, 8.3 or 8.4 hereof may be prepaid without ratable payment of the other Loans
in such Group of Loans which have not been so converted.
(c) Each Borrower may, upon at least five (5) Business Days' notice
to the Administrative Agent (by 1:00 P.M. New York time), reimburse the
Administrative Agent for the benefit of the Fronting Bank for the amount of any
drawing under a Letter of Credit issued for the account of such Borrower in
whole or in part in any amount.
(d) Any Borrower may at any time return any undrawn Letter of Credit
issued for the account of such Borrower to the Fronting Bank in whole, but not
in part, and the Fronting Bank within a reasonable period of time shall give the
Administrative Agent and each of the Banks notice of such return.
(e) AMB LP may at any time and from time to time cancel all or any
part of the Commitments by the delivery to the Administrative Agent of a notice
of cancellation within the applicable time periods set forth in Sections 2.11(a)
and (b) if there are Loans then outstanding or, if there are no Loans
outstanding at such time as to which the Commitments with respect thereto are
being canceled, upon at least five (5) Business Days' notice to the
Administrative Agent, whereupon, in either event, all or such portion of the
Commitments, as applicable, shall terminate as to the applicable Banks, pro rata
on the date set forth in such notice of cancellation, and, if there are any
Loans then outstanding, the applicable Borrowers shall prepay all or such
portion of Loans outstanding on such date in accordance with the requirements of
Section 2.11(a) and (b). In no event shall AMB LP be permitted to cancel
Commitments for which a Letter of Credit has been issued and is outstanding
unless the applicable Borrower for whose account such Letter of Credit was
issued returns (or causes to be returned) such Letter of Credit to the Fronting
Bank. AMB LP shall be permitted to designate in its notice of cancellation which
Loans, if any, are to be prepaid.
(f) Any amounts so prepaid pursuant to Section 2.11(a) or (b) may be
reborrowed. In the event AMB LP elects to cancel all or any portion of the
Commitments pursuant to Section 2.11(e) hereof, such amounts may not be
reborrowed.
SECTION 2.12. Mandatory Prepayments. If a Borrower disposes of a
real estate asset (or a beneficial interest therein) to a third party on an
arm's length basis (excluding any disposition to an Affiliate of AMB LP,
provided that such real estate asset continues to be managed by a AMB LP or a
Subsidiary of AMB LP), such Qualified Borrower shall within three (3) Business
Days of the settlement date
42
of such disposal prepay to the Administrative Agent all Loans owed by it with
respect to the real estate asset or beneficial interest so disposed together
with accrued interest on such amount.
SECTION 2.13. Secured Option.
(a) Each Borrower shall have the option, exercisable upon not less
than thirty (30) days notice to the Administrative Agent to cause any one or
more of the Loans to be made to such Borrower to be secured by the Secured
Property or a pledge of the equity interests of such Borrower as designated in
such notice (such option being the "Secured Option"). In the event any Borrower
elects the Secured Option with respect to any Committed Loan after such date,
such Committed Loans shall be secured by:
(i) At such Borrower's option, either (A) a first priority
mortgage (ne teito ken) on all real estate assets purchased with the proceeds of
the Loan (the "Secured Property") substantially in the form of Exhibit C or
otherwise reasonably acceptable to the Administrative Agent (a "Mortgage") or
(B) if such Secured Property is intrusted, a first priority pledge (ne shichi)
on such trust beneficial interests substantially in the form of Exhibit D or
otherwise reasonably acceptable to Administrative Agent (a "TBI Pledge") or (C)
first priority pledge (ne shichi) of all the preferred or common shares of the
entity which owns the Secured Property substantially in the form of Exhibit E or
otherwise reasonably acceptable to the Administrative Agent (a "Share Pledge").
In each case, the Mortgage, TBI Pledge or Share Pledge, as the case may be, and
such other documents and filings reasonably necessary to perfect and evidence
the Banks' first priority security interest are referred to as the "Security
Documents" and such security is referred to as the "Collateral"; and
(ii) a ratification and reaffirmation by the Guarantors of
their obligations under the Guaranty (the "Ratification").
(b) Each Borrower shall have the option, upon ten (10) Business Days
prior written notice to Administrative Agent, to substitute the type of Security
Document securing Collateral (i.e., a Mortgage or a TBI Pledge on a Secured
Property can be substituted with a Share Pledge on the preferred or common stock
or membership interests of such Borrower; a Share Pledge can be substituted with
a Mortgage or TBI Pledge on the Secured Property; a Share Pledge on common stock
can be substituted with a Share Pledge on preferred stock; and a Mortgage can be
substituted with a TBI Pledge in the event the Secured Property is intrusted and
a TBI Pledge can be substituted with a Mortgage in the event the Secured
Property is to be removed from the trust), provided (I) such Borrower satisfies
all the conditions to the original Borrowing as set forth in Section 2.13(a),
(ii) such Borrower pays all of Administrative Agent's reasonable out-of-pocket
expenses in connection with such
43
substitution and release and (iii) such Borrower causes the Guarantors to
deliver a Ratification.
(c) Each Borrower shall have the option, upon five (5) Business Days
prior notice to Administrative Agent, to obtain a release of Collateral securing
a Loan provided that (i) such Borrower prepays the Loan secured thereby, (ii)
such Borrower pays all of Administrative Agent's reasonable out-of-pocket
expenses in connection with such release and (iii) such Borrower causes the
Guarantors to deliver a Ratification.
(d) Upon ten (10) Business Days notice to Administrative Agent,
another Borrower (the "Assuming Borrower") may assume a Loan made to a Borrower
provided that, upon the assumption by such Assuming Borrower of such Loan, (i)
the Assuming Borrower delivers Collateral of the type selected by the Assuming
Borrower under Section 2.13(a), (ii) the Assuming Borrower satisfies all the
conditions to the original Borrowing as set forth in Section 3.2, (iii) the
Assuming Borrower pays all of Administrative Agent's reasonable out-of-pocket
expenses in connection with such release and (iii) the Assuming Borrower causes
the Guarantors to deliver a Ratification. The release of the original Borrower
and such original Collateral shall occur simultaneously with the assumption of
the Loan by the Assuming Borrower and the substitution of the Collateral. In no
event shall the Administrative Agent release any such Collateral unless and
until substitute Collateral has been obtained, to the satisfaction of the
Administrative Agent.
(e) If the type of Collateral selected by a Borrower under Section
2.13(a) is a Mortgage, the applicable Borrower shall provisionally register a
Mortgage in favor of the Banks upon the grant thereof. Upon the occurrence and
during the continuance of a Guarantor Event of Default or a Borrower Event of
Default with respect to such Borrower, such Borrower shall permanently register
or cause to be permanently registered, the Mortgage within two (2) Business Days
of the Administrative Agent's request therefor. Concurrently with the
provisional registration of the Mortgage, such Borrower shall deliver to the
Administration Agent the following ("Mortgage Perfection Documents"): (i)
undated powers of attorney of such Borrower necessary to permit the
Administrative Agent and the Banks to effectively permanently register the
Mortgage; (ii) a recent certificate of registered seal for the applicable
Borrower, to be updated to the extent any changes are made with respect to such
certificate and not less than once each quarter; (iii) a recent commercial
registry of the applicable Borrower, to be updated not less than once each
fiscal quarter (or as otherwise may be reasonably requested by the
Administrative Agent as required to perfect the Banks' security interest in the
Mortgage); (iv) the document certifying the completion of registration
concerning the right of the applicable Borrower (tokizumisho) provided under
Article 35.1.3 of the Immovables Registration Law (fudosan toki hou) (Law No. 24
of 1899, as amended) (or two (2) undated guarantee certificates (hoshosho) as
provided under Article 44 of the Immovables Registration Law (fudosan toki hou)
(Law No. 24 of 1899, as amended)), if applicable,
44
and (iv) any other documents necessary for the Banks to perfect their security
interest in the Mortgage, executed by the applicable Borrower and updated to the
extent necessary or as otherwise reasonably requested by the Administrative
Agent as required to perfect such security interest. Administrative Agent shall
be authorized without necessity of further authorization from such Borrower to
permanently register any and all Mortgages in favor of the Banks at any time
after the occurrence and during the continuance of a Guarantor Event of Default
or a Borrower Event of Default with respect to such Borrower. The applicable
Borrower shall bear and promptly reimburse the Administrative Agent and the
Banks for all reasonable out-of-pocket costs and expenses incurred in connection
with the provisional or permanent registration of Mortgages.
SECTION 2.14. General Provisions as to Payments.
(a) Each Borrower shall make each payment of the principal of and
interest on its Loans and fees hereunder, by initiating a wire transfer not
later than 1:00 P.M. (New York time) on the date when due in Yen immediately
available in Tokyo, Japan to the Administrative Agent at its address referred to
in Section 9.1, and each Borrower shall deliver to Administrative Agent evidence
of such wire as soon as possible thereafter on the date when due. The
Administrative Agent will promptly (and in any event within one (1) Business Day
after receipt thereof) distribute to each Bank its ratable share of each such
payment received by the Administrative Agent for the account of the Banks. If
and to the extent that the Administrative Agent shall receive any such payment
for the account of the Banks on or before 11:00 A.M. (New York time) on any
Business Day, and Administrative Agent shall not have distributed to any Bank
its applicable share of such payment on such day, Administrative Agent shall
distribute such amount to such Bank together with interest thereon, for each day
from the date such amount should have been distributed to such Bank until the
date Administrative Agent distributes such amount to such Bank, at the Prime
Rate. Whenever any payment of principal of, or interest on the Committed Loans
or of fees shall be due on a day which is not a Business Day, the date for
payment thereof shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case the date for
payment thereof shall be the next preceding Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from
the applicable Borrower prior to the date on which any payment is due to the
Banks hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
such Borrower shall not have so made such payment, each Bank shall repay to the
45
Administrative Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Prime Rate.
SECTION 2.15. Funding Losses. If any Borrower makes any payment of
principal with respect to any TIBOR Loan on any day other than the last day of
the Interest Period applicable thereto, or if any Borrower fails to borrow any
TIBOR Loans after notice has been given to any Bank in accordance with Section
2.5(a) or if any Borrower shall deliver a Notice of Interest Rate Election
specifying that a TIBOR Loan shall be converted on a date other than the first
(1st) day of the then current Interest Period applicable thereto, such Borrower
shall reimburse each Bank within 15 days after certification of such Bank of
such loss or expense (which shall be delivered by each such Bank to
Administrative Agent for delivery to such Borrower) for any resulting loss or
expense incurred by it (or by an existing Participant in the related Loan),
including, without limitation, any loss incurred in obtaining, liquidating or
employing deposits from third parties, but excluding loss of margin for the
period after any such payment or failure to borrow, provided that such Bank
shall have delivered to Administrative Agent and Administrative Agent shall have
delivered to such Borrower a certification as to the amount of such loss or
expense, which certification shall set forth in reasonable detail the basis for
and calculation of such loss or expense and shall be conclusive in the absence
of demonstrable error.
SECTION 2.16. Computation of Interest and Fees. Interest based on
the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days
in a leap year) and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest and fees shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
SECTION 2.17. Use of Proceeds. Each Borrower shall use the proceeds
of the Loans (i) to fund the acquisition and development of properties, or the
acquisition of beneficial interests in properties, in Japan by such Borrower and
(ii) for other real estate purposes in Japan, provided in no event shall any
Borrower further lend the proceeds of any Loan to any unrelated third party.
SECTION 2.18. Letters of Credit.
(a) Subject to the terms contained in this Agreement and the other
Loan Documents, upon the receipt of a notice in accordance with Section 2.2(b)
requesting the issuance of a Letter of Credit, the Fronting Bank shall issue a
Letter of Credit or Letters of Credit in such form as is reasonably acceptable
to the applicable Borrower (subject to the provisions of Section 2.2(b)) in an
amount or
46
amounts equal to the amount or amounts requested by such Borrower; provided that
the Fronting Bank shall issue the same only in Yen.
(b) Each Letter of Credit shall be issued in the minimum amount of
JPY10,000,000 or such lesser amount as may be agreed to by the Fronting Bank.
(c) The Letter of Credit Usage shall be no more than the lesser of
(i) JPY 3,000,000,000 and (ii) twenty percent (20%) of the Facility Amount at
any one time.
(d) There shall be no more than eight (8) 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 notify the
applicable Borrower and the Administrative Agent (and the Administrative Agent
shall 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),
such Borrower shall reimburse the Fronting Bank, in immediately available funds
in Yen, 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 applicable Borrower shall have notified the
Administrative Agent and the Fronting Bank prior to 1:00 P.M. (New York time) on
the Business Day immediately preceding the date of such drawing that such
Borrower intends to reimburse the Fronting Bank for the amount of such drawing
with funds other than the proceeds of the Loans, such Borrower shall be deemed
to have timely given a Notice of Borrowing pursuant to Section 2.2 to the
Administrative 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 (in Yen). Each Bank (other than the Fronting Bank) shall, in accordance
with Section 2.3(b), make available its pro rata share of such Borrowing to the
Administrative Agent, the proceeds of which shall be applied directly by the
Administrative Agent to reimburse the Fronting Bank for the amount of such draw.
In the event that any 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 Prime Rate commencing on the date such drawing is honored, and
the provisions of Section 9.16 shall otherwise apply to such failure.
(f) If, at the time a beneficiary under any Letter of Credit
requests a drawing thereunder, a Guarantor Event of Default as described in
Section 6.3(f) or Section 6.3(g) shall have occurred and is continuing or a
Borrower Event of Default as described in Section 6.1(e) and 6.1(f) with respect
to the Borrower for whose account such Letter of Credit was issued, then on the
date on which the Fronting Bank shall have honored such drawing, the applicable
Borrower shall have an unreimbursed obligation (the "Unreimbursed Obligation")
to the Fronting Bank in an
47
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 such drawing 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) 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 any Letter 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 such Letter of Credit
or participating therein, then the Borrower for whose account such Letter of
Credit was issued shall pay to the Fronting Bank or such Bank, within 15 days
after written demand by such Bank (with a copy to the Administrative 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. Each
Bank will promptly notify each affected Borrower and the Administrative 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 2.18 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
reasonable judgment of such Bank be otherwise disadvantageous to such Bank. If
such Bank shall fail to notify any affected Borrower of any such event within 90
days following the end of the month during which such event occurred, then such
Borrower's liability for any amounts described in this Section incurred by such
Bank as a result of such event shall be limited to those attributable to the
period occurring subsequent to the ninetieth (90th) day prior to, but excluding,
the date upon which such Bank actually notified such Borrower of the occurrence
of such event. A certificate of any Bank claiming compensation under this
Section 2.18 and setting forth a reasonably detailed calculation of the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of demonstrable error. In determining such amount, such Bank may use
any reasonable averaging and attribution methods.
(h) Each Borrower hereby agrees to protect, indemnify, pay and save
the Fronting Bank harmless from and against any and all claims, demands,
liabilities,
48
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 Letters of Credit for the account of such
Borrower, other than to the extent of the bad faith, gross negligence or wilful
misconduct of the Fronting Bank or (ii) the failure of the Fronting Bank to
honor a drawing under such 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 to the extent of the bad faith, gross negligence or wilful misconduct of
the Fronting Bank. As between the Borrower for whose account the Letter of
Credit was issued and the Fronting Bank, such Borrower assumes all risks of the
acts and omissions of any beneficiary with respect to its use, or misuses of,
such Letter of Credit issued by the Fronting Bank. 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, other than as a result of the bad faith,
gross negligence or wilful misconduct of the Fronting Bank; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any message,
by mail, cable, telegraph, 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 to the extent of the bad faith, 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 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 any Borrower; provided that, notwithstanding
anything in the foregoing to the contrary, the Fronting Bank will be liable to
the Borrower for whose account a Letter of Credit was issued for any damages
suffered by such Borrower or its Subsidiaries as a result of the Fronting Bank's
grossly negligent or wilful failure to pay under such Letter of Credit after the
presentation to it of a sight draft and certificates strictly in compliance with
the terms and conditions of such Letter of Credit.
(i) If the Fronting Bank or the Administrative Agent is required at
any time, pursuant to any bankruptcy, insolvency, liquidation or reorganization
law or
49
otherwise, to return to a Borrower any reimbursement by such Borrower of any
drawing under any Letter of Credit, each Bank shall pay to the Fronting Bank or
the Administrative Agent, as the case may be, its pro rata share of such
payment, but without interest thereon unless the Fronting Bank or the
Administrative 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
Administrative Agent is required to pay.
SECTION 2.19. Letter of Credit Usage Absolute. The obligations of
each Borrower under this Agreement in respect of any Letter of Credit issued for
the account of such Borrower 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 any Borrower in respect of any
other Letters of Credit issued for the account of such Borrower or any other
Borrower or any other amendment or waiver of or any consent by any Borrower to
depart from all or any 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 for whose
account the Letter of Credit was issued;
(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 any Borrower in respect of any Letters of
Credit issued for the account of such Borrower;
(d) the existence of any claim, set-off, defense or other right that
such 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 Administrative Agent, the Fronting Bank or any
Bank (other than a defense based on the bad faith, gross negligence or wilful
misconduct of the Administrative 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
50
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 been the
result of the bad faith, 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 strictly comply with the terms of the Letter of
Credit; provided, that such payment shall not have been the result of the bad
faith, gross negligence or wilful misconduct of the Fronting Bank; and
(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 applicable Borrower; provided, that such
other circumstance or happening shall not have been the result of bad faith,
gross negligence or wilful misconduct of the Fronting Bank.
SECTION 2.20. Addition of Qualified Borrowers; Release of Qualified
Borrowers.
(a) If after the Closing Date, AMB LP desires to cause another
Subsidiary which otherwise satisfies the definition of a Qualified Borrower
hereunder to become a Qualified Borrower hereunder, then AMB LP shall so notify
the Administrative Agent and, upon satisfaction of the following conditions,
such Subsidiary shall become a Qualified Borrower under this Agreement: (i) such
Subsidiary shall duly execute and deliver to the Administrative Agent applicable
Qualified Borrower Joinder Documents and (ii) such Subsidiary shall satisfy all
of the conditions with respect thereto set forth in the Qualified Borrower
Joinder Agreement. The Administrative Agent shall promptly notify each Bank upon
a Subsidiary's addition as a Qualified Borrower hereunder. Each such Qualified
Borrower shall remain a Qualified Borrower hereunder until released as provided
in Section 2.20(b) below.
(b) At such time as no Loan is outstanding to any Qualified
Borrower, at the option of such Qualified Borrower or AMB LP and upon notice to
Administrative Agent, such Qualified Borrower shall be released as a Qualified
Borrower under the Loan Documents, the Security Documents, if any, of such
Qualified Borrower shall be released and the Notes executed and delivered by
such Qualified Borrower shall be returned to such Qualified Borrower, provided
that simultaneously with such release and return, the Guarantors deliver a
Ratification.
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ARTICLE III
CONDITIONS
SECTION 3.1. Closing. The closing hereunder shall occur on the date
when each of the following conditions is satisfied (or waived in writing by the
Administrative Agent and the Banks), each document to be dated the Closing Date
unless otherwise indicated:
(a) each Borrower shall have executed and delivered to the
Administrative Agent the Note or Notes, dated on or before the Closing Date, in
accordance with the provisions of Section 2.6;
(b) the Initial Borrower and the Administrative Agent and each of
the Banks shall have executed and delivered to each Borrower and the
Administrative Agent a duly executed original of this Agreement;
(c) each Qualified Borrower and the Guarantors shall have executed
and delivered to each Credit Party and the Administrative Agent a duly executed
original of a Qualified Borrower Joinder Agreement;
(d) Guarantors shall have executed and delivered to the
Administrative Agent a duly executed original of the Guaranty;
(e) each Bank shall have executed and delivered to the
Administrative Agent twelve (12) originally executed Consents in the form of
Exhibit F;
(f) the Administrative Agent shall have received an opinion of Piper
Rudnick LLP, US counsel for the Credit Party and Morrison & Foerster LLP/Ito &
Mitomi, Japan counsel for the Credit Parties, in each case, acceptable to the
Administrative Agent, the Banks and their counsel;
(g) the Administrative Agent shall have received all documents the
Administrative Agent may reasonably request relating to the existence of the
Credit Parties, the authority for and the validity of this Agreement and the
other Loan Documents, the incumbency of officers executing this Agreement and
the other Loan Documents and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent. Such documentation shall
include, without limitation, the following, each as amended, modified or
supplemented to the Closing Date, certified to be true, correct and complete by
a senior officer of the applicable Person as of a date not more than ten (10)
days prior to the Closing Date: (i) the operating agreement, partnership
agreement, articles of incorporation or other constituent document, as
applicable, of each Borrower, (ii) the certificate of formation of each
Borrower, (iii) a certificate of existence from the Secretary of State (or the
equivalent thereof) of the state of formation of each Borrower, as applicable
(iv)
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for any Borrower that is a TMK, a director's certificate attaching the following
items: articles of incorporation (Teikan), commercial register (rireki jikou
zenbu shoumeisho), certificate of seal (inkan shoumeisho), notification of
commencement of business of TMK (gyoumu kaishi todokede), Asset Liquidation Plan
(shisan ryuudouka keikaku), certificate of registration issued by the Kanto
Local Finance Bureau, register of common shareholders, register of preferred
shareholders and authorizing resolutions, (v) for any Borrower that is a YK,
representative director's certificate attaching the following items: authorizing
resolutions, articles of incorporation (teikan), commercial register (rireki
jikou zenbu shoumeisho), certificate of seal (inkan shoumeisho) and list of
unitholders, together with, if and when the same is obtained by such Borrower,
evidence of Article 40, YK Law compliance (or other evidence satisfactory to
Administrative Agent that such YK was formed more than 2 years from the date
hereof), (vi) the agreement of limited partnership of AMB LP, (vii) the
certificate of limited partnership of AMP LP (ix) a certificate of existence for
AMB LP from the Secretary of State (or the equivalent thereof) of Delaware,
(viii) the articles of incorporation and by laws of AMB Corporation and (ix) a
good standing certificate for AMB Corporation from the Secretary of State (or
the equivalent thereof) of Maryland;
(h) each Credit Party as of the Closing Date shall have executed a
solvency certificate acceptable to the Administrative Agent;
(i) the Administrative Agent shall have received all certificates,
agreements and other documents and papers referred to in this Section 3.1 and
the Notice of Borrowing referred to in Section 3.2, if applicable, unless
otherwise specified, in sufficient counterparts, satisfactory in form and
substance to the Administrative Agent in their sole discretion;
(j) to the extent a Credit Party is a party to such agreement, such
Credit Party shall have taken all actions required to authorize the execution
and delivery of this Agreement, the Guaranty, the Qualified Borrower Joinder
Agreement and the other Loan Documents and the performance thereof;
(k) the Banks shall be satisfied that no Credit Party nor any
Consolidated Subsidiary is subject to any present or contingent environmental
liability which could have a Material Adverse Effect and AMB Corporation shall
have delivered a certificate so stating;
(l) the Administrative Agent shall have received, for its and any
other Bank's account, all fees due and payable pursuant to Section 2.9 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, if required by
such firm and if such firm has delivered an invoice in reasonable detail of such
fees and expenses in sufficient time for each Borrower to approve and process
the same, shall have been paid to Skadden, Arps, Slate, Meagher & Flom LLP;
53
(m) each Credit Party shall have delivered copies of all consents,
licenses and approvals, if any, required in connection with the execution,
delivery and performance by such Credit Party of the Loan Documents to which
such Credit Party is a party and the validity and enforceability of the Loan
Documents, or in connection with any of the transactions contemplated thereby,
and such consents, licenses and approvals shall be in full force and effect;
(n) no Default or Event of Default shall have occurred; and
(o) the Guarantors shall have delivered a certificate in form
acceptable to Administrative Agent showing compliance with the requirements of
Section 5.8 as of the Closing Date.
SECTION 3.2. Borrowings. The obligation of any Bank to make a Loan
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) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.2, or a request to cause a Fronting Bank to issue a Letter
of Credit pursuant to Section 2.18;
(b) Intentionally Deleted
(c) in the event that any Borrower exercised the Secured Option, on
or before the date that is five (5) Business Days prior to such Borrowing, such
Borrower shall deliver to the Administrative Agent the following:
(i) an executed applicable Security Document in recordable
form or bearing an officially confirmed date (hakutei hizuke), if applicable;
(ii) if the Secured Option selected is a Mortgage,
certificates of insurance with respect to the Real Estate Property being
acquired with such Borrowing (the "Secured Property") naming Administrative
Agent and each of the Banks as additional insured and demonstrating the
coverages required by this Agreement and the applicable Security Documents;
(iii) opinion of counsel of such Borrower's Japan counsel with
respect to the Security Documents;
(iv) with respect to a Mortgage, the corresponding Mortgage
Perfection Documents;
54
(v) with respect to Share Pledge involving a pledge of
preferred TMK shares, the original share certificates and certified copies of
share registers and resolutions required under Section 4 of the form of the
Share Pledge;
(vi) with respect to a TBI Pledge, the original trust
beneficial interest certificate and the other documents required under the form
of Pledge of Beneficiary Interest under Trust attached hereto as Exhibit D;
(vii) if the Secured Option selected is a Mortgage, a copy of
the real property register (fudosan tokibo tohon) or certificate of registered
matters (zenbu jiko shomeisho) for each Secured Property dated no earlier than
ten (10) days prior to the date of the relevant Borrowing, showing the
applicable Borrower as the owner of the Secured Property;
(viii) an amount equal to any recording fees, stamp taxes,
documentary taxes or similar fees required to be paid in connection with the
recording of the Security Documents; and
(ix) all other documents, filings, affidavits, and
deliveries normally and customarily delivered in connection with such a secured
transaction, as requested by Administrative Agent in its reasonable opinion and
within a reasonable period of time prior to such Borrowing.
(d) immediately after such Borrowing, the aggregate outstanding
principal amount of the Loans plus the Letter of Credit Usage will not exceed
the aggregate amount of the Commitments;
(e) immediately before and after such Borrowing or issuance of any
Letter of Credit, no Guarantor Default or Guarantor Event of Default shall have
occurred and be continuing and no Borrower Default or Borrower Event of Default
with respect to such Borrower shall have occurred and be continuing, both before
and after giving effect to the making of such Loans or the issuance of such
Letter of Credit;
(f) the representations and warranties of each of the Guarantors and
such Borrower contained in this Agreement and the other Loan Documents (other
than representations and warranties which expressly speak as of a different
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;
(g) 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, which does or seeks to enjoin, prohibit or
restrain, the making or repayment of the Loans or the consummation of the
transactions contemplated by this Agreement; and
55
(h) no event, act or condition shall have occurred after the Closing
Date which, in the reasonable judgment of the Administrative Agent or the
Required Banks, as the case may be, has had or is likely to have a Material
Adverse Effect.
Each Borrowing hereunder or issuance of a Letter of Credit hereunder shall be
deemed to be a representation and warranty by each of the Guarantors and the
Borrower receiving such Loan or for whose account such Letter of Credit is being
issued on the date of such Borrowing as to the facts specified in clauses (b),
(c), (d), (e), (f), (g) and (h) (to the extent that such Borrower is or should
have been aware of any Material Adverse Effect) of this Section, except as
otherwise disclosed in writing by such Borrower to the Banks. Notwithstanding
anything to the contrary, no Borrowing shall be permitted if such Borrowing
would cause any Credit Party to fail to be in compliance with any of the
covenants contained in this Agreement or in any of the other Loan Documents.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties by the Guarantors. In
order to induce the Administrative Agent and each of the other Banks which is or
may become a party to this Agreement to make the Loans, each of AMB LP and AMB
Corporation, as applicable, make the following representations and warranties as
of the Closing Date. Such representations and warranties shall survive the
effectiveness of this Agreement, the execution and delivery of the other Loan
Documents and the making of the Loans.
(a) Existence and Power.
(i) AMB LP is a limited partnership, duly formed and validly
existing 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.
(ii) AMB Corporation is a corporation, duly formed, validly
existing and in good standing under the laws of the State of Maryland 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.
56
(b) Power and Authority.
(i) Each Guarantor has duly executed and delivered each Loan
Document to which it is a party in accordance with the terms of this Agreement,
and each such Loan Document constitutes, or will constitute, the legal, valid
and binding obligation of such Guarantor, 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.
(ii) Each Guarantor has the 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, delivery and performance of such Loan Documents.
(c) No Violation. Neither the execution, delivery or performance by
any Guarantor of the Loan Documents to which it is a party, nor compliance by
such Guarantor with the terms and provisions thereof nor the consummation of the
transactions contemplated by such Loan Documents, (i) will materially contravene
any applicable provision of any law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
materially 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 such Guarantor or any of its
Consolidated Subsidiaries pursuant to the terms of any indenture, mortgage, deed
of trust, or other agreement or other instrument to which such Guarantor (or of
any partnership of which such Guarantor is a partner) or any of its Consolidated
Subsidiaries is a party or by which any of its property or assets is bound or to
which it is subject (except for such breaches and defaults under loan agreements
which the lenders thereunder have agreed to forbear pursuant to valid
forbearance agreements), or (iii) will cause a material default by such
Guarantor under any organizational document of any Person in which such
Guarantor has an interest, the consequences of which conflict, breach or default
would have a Material Adverse Effect, or result in or require the creation or
imposition of any Lien whatsoever upon any Property (except as contemplated
herein).
(d) Financial Information.
(i) The consolidated balance sheet of AMB LP and its
Consolidated Subsidiaries as of December 31, 2003, and the related consolidated
statements of operations and cash flows of AMB Corporation for the fiscal year
then ended, reported on by PriceWaterhouseCoopers fairly present, in conformity
with GAAP, the consolidated financial position of each of the Guarantors and
their Consolidated Subsidiaries as of such date and the consolidated results of
operations and cash flows for such fiscal quarter.
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(ii) Since March 31, 2004, (i) except as may have been
disclosed in writing to the Banks, nothing has occurred having a Material
Adverse Effect, and (ii) except as set forth on Schedule 4.4(b), no Credit Party
has incurred any material indebtedness or guaranty on or before the Closing
Date.
(e) Litigation. Except as previously disclosed by the Guarantors in
writing to the Banks, there is no action, suit or proceeding pending against or,
to the knowledge of the Guarantors, threatened against or affecting, (i) any
Credit Party or any of their respective Consolidated Subsidiaries, (ii) the Loan
Documents or any of the transactions contemplated by the Loan Documents or (iii)
any of their assets, before any court or arbitrator or any governmental body,
agency or official in which there is a reasonable possibility of an adverse
decision which could, individually, or in the aggregate have a Material Adverse
Effect or which in any manner draws into question the validity of this Agreement
or the other Loan Documents. As of the Closing Date, no such action, suit or
proceeding exists.
(f) Compliance with ERISA.
(i) Except as set forth on Schedule 4.1(f) attached hereto, no
Credit Party is a member of or has entered into, maintained, contributed to, or
been required to contribute to, or may incur any liability with respect to any
Plan or Multiemployer Plan or any other Benefit Arrangement. In the event that
at any time after the Closing Date, any Credit Party shall become a member of
any other material Plan or Multiemployer Plan, such Credit Party promptly shall
notify the Administrative Agent thereof and from and after such notice, Schedule
4.1(f) shall be deemed modified thereby.
(ii) Except for a "prohibited transaction" arising solely
because of a Bank's breach of the covenant set forth in Section 9.17 hereof, the
transactions contemplated by the Loan Documents will not constitute a nonexempt
prohibited transaction (as such term is defined in Section 4975 of the Code or
Section 406 of ERISA) that could subject the Administrative Agent or any of the
Banks to any tax or penalty on prohibited transactions imposed under Section
4975 of the Code or Section 502(i) of ERISA and such transactions will not
otherwise result in the Administrative Agent or any of the Banks being deemed in
violation of Sections 404 or 406 of ERISA or Section 4975 of the Code or in the
Administrative Agent or any of the Banks being a fiduciary or party in interest
under ERISA or a "disqualified person" as defined in Section 4975(e)(2) of the
Code with respect to an "employee benefit plan" within the meaning of Section
3(3) of ERISA or a "plan" within the meaning of Section 4975(e)(1) of the Code.
No assets of any Credit Party constitute "assets" (within the meaning of ERISA
or Section 4975 of the Code, including, but not limited to, 29 C.F.R. Section
2510.3-101 or any successor regulation thereto) of an "employee benefit plan"
within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of
Section 4975(e)(1) of the Code. In addition to the prohibitions set forth in
this Agreement and the other Loan Documents, and not in
58
limitation thereof, AMB LP covenants and agrees that AMB LP shall not, and shall
not permit any Credit Party to, use any "assets" (within the meaning of ERISA or
Section 4975 of the Code, including but not limited to 29 C.F.R. Section
2510.3-101) of an "employee benefit plan" within the meaning of Section 3(3) of
ERISA or a "plan" within the meaning of Section 4975(e)(1) of the Code to repay
or secure the Note, the Loan, or the Obligations.
(g) Environmental. AMB LP conducts reviews of the effect of
Environmental Laws on the business, operations and properties of AMB LP and its
Consolidated Subsidiaries when necessary in the course of which it identifies
and evaluates associated liabilities and costs (including, without limitation,
any capital or operating expenditures required for clean-up or closure of
properties presently owned, any capital or operating expenditures required to
achieve or maintain compliance with environmental protection standards imposed
by law or as a condition of any license, permit or contract, any related
constraints on operating activities, and any actual or potential liabilities to
third parties, including, without limitation, employees, and any related costs
and expenses). On the basis of this review, AMB LP has reasonably concluded that
such associated liabilities and costs, including, without limitation, the costs
of compliance with Environmental Laws, are unlikely to have a Material Adverse
Effect.
(h) Taxes. Each Credit Party and their respective Consolidated
Subsidiaries have filed all United States Federal and Japanese national and
local 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 any Credit Parties or any of their
respective Consolidated Subsidiaries, except such taxes, if any, as are reserved
against in accordance with GAAP, such taxes as are being contested in good faith
by appropriate proceedings or such taxes, the failure to make payment of which
when due and payable will not have, in the aggregate, a Material Adverse Effect.
The charges, accruals and reserves on the books of the Credit Parties and their
respective Consolidated Subsidiaries in respect of taxes or other governmental
charges are, in the opinion of AMB LP, adequate.
(i) Full Disclosure. All information heretofore furnished by the
Credit Parties to the Administrative Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby or thereby
is true and accurate in all material respects on the date as of which such
information is stated or certified. The Guarantors have disclosed to the
Administrative Agent, in writing any and all facts which have or may have (to
the extent the Guarantors can now reasonably foresee) a Material Adverse Effect.
(j) Solvency. On the Closing Date and after giving effect to the
transactions contemplated by the Loan Documents occurring on the Closing Date
and after each Loan, each Credit Party will be Solvent.
59
(k) Use of Proceeds. All proceeds of the Loans will be used by each
Borrower only in accordance with the provisions of Section 2.17. 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.
(l) 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 or those which,
if not made or obtained, would not have a Material Adverse Effect;
(m) Investment Company Act; Public Utility Holding Company Act. No
Credit Party and no Consolidated Subsidiary (other than AMB Capital Partners,
LLC) is (x) an "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.
(n) Principal Offices. As of the Closing Date, the principal office,
chief executive office and principal place of business of each of the Guarantors
is Pier 1, Bay 1, San Francisco, California 94111.
(o) REIT Status. AMB Corporation is qualified and AMB Corporation
intends to continue to qualify as a real estate investment trust under the Code.
(p) Patents, Trademarks, etc. The Credit Parties have obtained and
hold in full force and effect all patents, trademarks, servicemarks, 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.
(q) Judgments. As of the Closing Date, there are no final,
non-appealable judgments or decrees in an aggregate amount of Ten Million
Dollars (US$10,000,000) (or its equivalent in alternate currency) or more
entered by a court or courts of competent jurisdiction against any of the Credit
Parties or, to the extent such judgment would be recourse to any Credit Party or
any of their respective Consolidated Subsidiaries (other than judgments as to
which, and only to the extent,
60
a reputable insurance company has acknowledged coverage of such claim in writing
or which have been paid or stayed).
(r) No Default. No Event of Default or, to the best of AMB LP's
knowledge, Default exists under or with respect to any Loan Document and no
Credit Party is 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 result in a
Material Adverse Effect.
(s) Licenses, etc. Each Credit Party has obtained and does hold in
full force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditation, 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 have a
Material Adverse Effect.
(t) Compliance With Law. To AMB LP's knowledge, each Credit Party
and each of their respective Real Property Assets are 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 have a Material Adverse Effect.
(u) No Burdensome Restrictions. Except as may have been disclosed by
the AMP LP in writing to the Banks, no Credit Party is a party to any agreement
or instrument or subject to any other obligation or any charter or corporate or
partnership restriction, as the case may be, which, individually or in the
aggregate, is likely to have a Material Adverse Effect.
(v) Brokers' Fees. No Credit Party has dealt with any broker or
finder with respect to the transactions contemplated by this Agreement or
otherwise in connection with this Agreement, and no Credit Party has done any
act, 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 any such party of any brokerage fee, charge, commission or other
compensation to any party with respect to the transactions contemplated by the
Loan Documents, other than the fees payable to the Administrative Agent and the
Banks, and certain other Persons as previously disclosed in writing to the
Administrative Agent.
(w) Labor Matters. Except as disclosed on Schedule 4.1(f), there are
no collective bargaining agreements or Multiemployer Plans covering the
employees of AMB LP or any member of the ERISA Group and neither AMB LP nor any
member of the ERISA Group has suffered any strikes, walkouts, work stoppages or
other material labor difficulty within the last five years.
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(x) Insurance. AMB LP currently maintains insurance at 100%
replacement cost insurance coverage (subject to customary deductibles) in
respect of each of its Real Property Assets, as well as commercial general
liability insurance (including, without limitation, "builders' risk" where
applicable) 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 liability and casualty insurance with insurers
having an A.M. Best policyholders' rating of not less than A-VII in amounts that
prudent owners of assets such as AMB LP's directly or indirectly owned Real
Property Assets would maintain.
(y) Documents. The documents delivered pursuant to Section 3.1(g)
constitute, as of the Closing Date, all of the organizational documents
(together with all amendments and modifications thereof) of each Credit Party as
of the Closing Date. AMB Corporation is the general partner of AMB LP. Attached
hereto as Exhibit I is a true, correct and complete (up to the tiers shown)
organizational and transaction structure chart for the Initial Borrower and the
Qualified Borrowers as of the Closing Date.
(z) Qualifying Unencumbered Properties. As of the date hereof, each
Property listed on Schedule 1.1(b) as a Qualifying Unencumbered Property (i) is
a wholly-owned or ground leased (directly or beneficially) by AMB LP, a
Financing Partnership or a Joint Venture Subsidiary, (ii) is not subject (nor
are any equity interests in such Property that are owned directly or indirectly
by the Guarantors or any Joint Venture Parent subject) to a Lien which secures
Indebtedness of any Person, other than Permitted Liens, and (iii) is not subject
(nor are any equity interests in such Property that are owned directly or
indirectly by the Guarantors or Joint Venture Parent subject) to any Negative
Pledge. All of the information set forth on Schedule 1.1(b) is true and correct
in all material respects.
SECTION 4.2. Representations and Warranties by the Initial Borrower.
In order to induce the Administrative Agent and each of the other Banks which is
or may become a party to this Agreement to make the Loans, the Initial Borrower
makes the following representations and warranties as of the Closing Date. Such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the other Loan Documents and the making
of the Loans.
(a) Existence and Power. The Initial Borrower is a yugen kaisha duly
formed under the laws of Japan. The Initial Borrower 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.
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(b) Power and Authority.
(i) The Initial Borrower has the requisite 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, if any, to
authorize the execution and delivery on behalf of the Initial Borrower and the
performance by the Initial Borrower of the Loan Documents to which it is a
party.
(ii) The Initial Borrower has duly executed and delivered each
Loan Document to which it is a party in accordance with the terms of this
Agreement, and each such Loan Document constitutes, or will constitute, the
legal, valid and binding obligation of the Initial 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.
(c) No Violation. Neither the execution, delivery or performance by
or on behalf of the Initial Borrower of the Loan Documents to which it is a
party, nor compliance by the Initial Borrower with the terms and provisions
thereof nor the consummation of the transactions contemplated by such Loan
Documents, (i) will materially contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will materially 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 Initial Borrower pursuant to the terms of any indenture, mortgage, deed of
trust, or other agreement or other instrument to which the Initial Borrower (or
of any partnership of which the Initial 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
(except for such breaches and defaults under loan agreements which the lenders
thereunder have agreed to forbear pursuant to valid forbearance agreements), or
(iii) will cause a material default by the Initial Borrower under any
organizational document of any Person in which the Initial Borrower has an
interest, or cause a material default under the Initial Borrower's
organizational documents, the consequences of which conflict, breach or default
would have a Material Adverse Effect, or result in or require the creation or
imposition of any Lien whatsoever upon any Property (except as contemplated
herein).
(d) Litigation. Except as previously disclosed by the Guarantors in
writing to the Banks, there is no action, suit or proceeding pending against or,
to the knowledge of the Initial Borrower, threatened against or affecting, (i)
the Initial Borrower, (ii) the Loan Documents or any of the transactions
contemplated by the Loan Documents or (iii) any of their assets, before any
court or arbitrator or any governmental body, agency or official in which there
is a reasonable possibility of an adverse decision which could, individually, or
in the aggregate have a Material
63
Adverse Effect or which in any manner draws into question the validity of this
Agreement or the other Loan Documents. As of the Closing Date, no such action,
suit or proceeding exists.
(e) Organizational Documents. The Initial Borrower represents that
it has delivered to the Administrative Agent true, correct and complete copies
of its organizational documents. Attached hereto as Exhibit I is a true, correct
and complete (up to the tiers shown) organizational and transaction structure
chart for the Initial Borrower as of the Closing Date.
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
AMB LP covenants and agrees that, so long as any Bank has any
Commitment hereunder or any Obligations remain unpaid:
SECTION 5.1. Information. AMB LP will deliver, or cause to be
delivered, to each of the Banks:
(a) as soon as available and in any event within five (5) Business
Days after the same is required to be filed with the Securities and Exchange
Commission (but in no event later than 95 days after the end of each Fiscal Year
of the AMB LP) a consolidated balance sheet of the Guarantors and their
Consolidated Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of Guarantors' operations and consolidated statements of
Guarantors' cash flow for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous Fiscal Year (if available), all
reported in a manner acceptable to the Securities and Exchange Commission on
Guarantors' Form 10K and reported on by PriceWaterhouseCoopers or other
independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within five (5) Business
Days after the same is required to be filed with the Securities and Exchange
Commission (but in no event later than 50 days after the end of each of the
first three quarters of each Fiscal Year of the Guarantors), (i) a consolidated
balance sheet of the Guarantors and their Consolidated Subsidiaries as of the
end of such quarter and the related consolidated statements of Guarantors'
operations and consolidated statements of Guarantors' cash flow for such quarter
and for the portion of the Guarantors' Fiscal Year ended at the end of such
quarter, all reported in the form provided to the Securities and Exchange
Commission on Guarantors' Form 10Q, and (ii) and such other information
reasonably requested by the Administrative Agent or any Bank;
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(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 of AMB LP (i) setting forth in reasonable detail (including,
without limitation, reconciliation to GAAP) the calculations required to
establish whether AMB LP was in compliance with the requirements of Section 5.8
on the date of such financial statements; (ii) certifying (x) that such
financial statements fairly present the financial condition and the results of
operations of AMB LP on the dates and for the periods indicated, on the basis of
GAAP, with respect to AMB LP subject, in the case of interim financial
statements, to normally recurring 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 AMB LP during the period beginning on the date through
which the last such review was made pursuant to this Section 5.1(c) (or, in the
case of the first certification pursuant to this Section 5.1(c), the Closing
Date) and ending on a date not more than ten (10) Business Days prior to, but
excluding, the date of such delivery and that (1) on the basis of such financial
statements and such review of the Loan Documents, no Event of Default existed
under Section 6.3(b) with respect to Sections 5.8 and 5.9 at or as of the date
of said financial statements, and (2) on the basis of such review of the Loan
Documents and the business and condition of AMB LP, to the best knowledge of
such officer, as of the last day of the period covered by such certificate no
Default or Event of Default under any other provision of Section 6.1 or Section
6.3 occurred and is continuing or, if any such Default or Event of Default has
occurred and is continuing, specifying the nature and extent thereof and, the
action AMB LP proposes to take in respect thereof. Such certificate shall set
forth the calculations required to establish the matters described in clauses
(1) and (2) above;
(d) (i) within five (5) Business Days after any officer of AMB LP
obtains knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer, or other executive officer of AMB LP
setting forth the details thereof and the action which AMB LP is taking or
proposes to take with respect thereto; and (ii) promptly and in any event within
five (5) Business Days after AMB LP obtains knowledge thereof, notice of (x) any
litigation or governmental proceeding pending or threatened against AMB LP or
its directly or indirectly Real Property Assets as to which there is a
reasonable possibility of an adverse determination and which, if adversely
determined, 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;
(e) promptly upon the mailing thereof to the shareholders of AMB
Corporation generally, copies of all proxy statements so mailed;
(f) promptly upon the filing thereof, copies of all reports on Forms
10-K and 10-Q (or their equivalents) (other than the exhibits thereto, which
65
exhibits will be provided upon request therefor by any Bank) which AMB
Corporation shall have filed with the Securities and Exchange Commission;
(g) promptly and in any event within thirty (30) days, 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 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 result in the imposition of a Lien or the posting of a bond or
other security, and in the case of clauses (i) through (vii) above, which event
could result in a Material Adverse Effect, a certificate of the chief financial
officer or the chief accounting officer of AMB LP setting forth details as to
such occurrence and action, if any, which AMB LP or applicable member of the
ERISA Group is required or proposes to take;
(h) promptly and in any event within ten (10) days after AMB LP
obtains actual knowledge of any of the following events, a certificate of AMB
LP, executed by an officer of AMB LP specifying the nature of such condition,
and AMB LP or, if AMB LP has actual knowledge thereof, the Environmental
Affiliate's proposed initial response thereto: (i) the receipt by AMB LP or any
of the Environmental Affiliates of any communication (written or oral), whether
from a governmental authority, citizens group, employee or otherwise, that
alleges that AMB LP or 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 existence of any Environmental Claim pending
against AMB LP or any Environmental Affiliate and such Environmental Claim is
likely to have a Material Adverse Effect or (iii) any release, emission,
discharge or disposal of any Material of Environmental Concern that is likely to
form the basis of any Environmental Claim against AMB LP or any Environmental
Affiliate which in any such event is likely to have a Material Adverse Effect;
66
(i) promptly and in any event within five (5) Business Days after
receipt of any notices or correspondence from any company or agent for any
company providing insurance coverage to AMB LP relating to any loss which is
likely to result in a Material Adverse Effect, copies of such notices and
correspondence;
(j) simultaneously with the delivery of the information required by
Sections 5.1(a) and (b), a statement of all Qualifying Unencumbered Properties;
(k) annually, unaudited financial information for each Borrower
prepared by such Borrower in the ordinary course of business, together with
notice from each Borrower of any disposition or transfer by such Borrower of any
real estate asset to an Affiliate of AMB LP during the prior year; and
(l) from time to time such additional information regarding the
financial position or business of the Credit Parties and their respective
Subsidiaries as the Administrative Agent, at the request of any Bank, may
reasonably request in writing, so long as disclosure of such information could
not result in a violation of, or expose any Credit Party or their respective
Subsidiaries to any material liability under, any applicable law, ordinance or
regulation or any agreements with unaffiliated third parties that are binding on
any Credit Party or any of their respective Subsidiaries or on any Property of
any of them.
SECTION 5.2. Payment of Obligations. Each Credit Party and their
respective Consolidated Subsidiaries will pay and discharge, at or before
maturity, all their respective material obligations and liabilities including,
without limitation, any obligation pursuant to any agreement by which it or any
of its properties is bound, in each case where the failure to so pay or
discharge such obligations or liabilities is likely to result in a Material
Adverse Effect, and will maintain in accordance with GAAP, appropriate reserves
for the accrual of any of the same.
SECTION 5.3. Maintenance of Property; Insurance.
(a) AMB LP will keep, and will cause each Consolidated Subsidiary to
keep, all property useful and necessary in its business, including without
limitation their respective Real Property Assets (for so long as it constitutes
Real Property Assets), in good repair, working order and condition, ordinary
wear and tear excepted, in each case where the failure to so maintain and repair
will have a Material Adverse Effect.
(b) AMB LP shall maintain, or cause to be maintained, insurance
described in Section 4.1(x) hereof with insurers meeting the qualifications
described therein, which insurance shall in any event not provide for less
coverage than insurance customarily carried by owners of properties similar to,
and in the same locations as, AMB LP's Real Property Assets. AMB LP will deliver
to the Administrative Agent upon the reasonable request of the Administrative
Agent from time to
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time (i) 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 required by Section 4.1(x) from that existing on the
date of this Agreement and (iii) forthwith, notice of any cancellation or
nonrenewal (without replacement) of coverage by AMB LP.
SECTION 5.4. Maintenance of Existence. Each Credit Party will
preserve, renew and keep in full force and effect, their respective partnership
and corporate existence and their respective rights, privileges and franchises
necessary for the normal conduct of business unless the failure to maintain such
rights and franchises does not have a Material Adverse Effect.
SECTION 5.5. Compliance with Laws. Each Credit Party will, and will
cause their Subsidiaries to, comply in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws, and all zoning
and building codes with respect to its Real Property Assets and ERISA and the
rules and regulations thereunder and all federal securities laws) except where
the necessity of compliance therewith is contested in good faith by appropriate
proceedings or where the failure to do so will not have a Material Adverse
Effect or expose Administrative Agent or Banks to any material liability
therefor.
SECTION 5.6. Inspection of Property, Books and Records. AMB LP 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 in conformity with GAAP, modified as required by this Agreement and
applicable law; and will permit representatives of any Bank, at such Bank's
expense, or from and after an Event of Default, at AMB LP's expense, to visit
and inspect any of its properties, including without limitation its Real
Property Assets, and so long as disclosure of such information could not result
in a violation of, or expose any Credit Party or their Subsidiaries to any
material liability under, any applicable law, ordinance or regulation or any
agreements with unaffiliated third parties that are binding on any Credit Party
or any of their Subsidiaries or on any Property of any of them, to examine and
make abstracts from any of its books and records and to discuss its affairs,
finances and accounts with its officers and independent public accountants, all
at such reasonable times during normal business hours, upon reasonable prior
notice and as often as may reasonably be desired. Administrative Agent shall
coordinate any such visit or inspection to arrange for review by any Bank
requesting any such visit or inspection.
SECTION 5.7. Existence. AMB LP shall do or cause to be done, all
things necessary to preserve and keep in full force and effect its, and each
Credit Party's and their respective Consolidated Subsidiaries', existence and
its patents, trademarks, servicemarks, tradenames, copyrights, franchises,
licenses, permits, certificates, authorizations, qualifications, accreditation,
easements, rights of way and
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other rights, consents and approvals the nonexistence of which is likely to have
a Material Adverse Effect.
SECTION 5.8. Financial Covenants.
(a) Total Liabilities to Total Asset Value. AMB LP shall not permit
the ratio of Total Liabilities to Total Asset Value of AMB LP to exceed 0.55:1
at any time; provided however, such ratio may exceed 0.55:1 for any single
quarter within any twelve (12) month period but in no event shall AMB LP permit
the ratio of Total Liabilities to Total Asset Value to exceed 0.60:1 at any
time.
(b) Adjusted EBITDA to Fixed Charges Ratio. AMB LP shall not permit
the ratio of Adjusted EBITDA to Fixed Charges of AMB LP, for the then most
recently completed four (4) consecutive Fiscal Quarters, to be less than 1.75:1.
(c) Secured Debt to Total Asset Value. AMB LP shall not permit the
ratio of Secured Debt to Total Asset Value of AMB LP to exceed 0.40:1 at any
time.
(d) Unencumbered Pool. AMB LP shall not permit the ratio of the
outstanding Unsecured Debt to Unencumbered Asset Value of AMB LP to exceed
0.55:1 at any time.
(e) Unencumbered Net Operating Cash Flow to Unsecured Interest
Expense. AMB LP shall not permit the ratio of Unencumbered Net Operating Cash
Flow of AMB LP to Unsecured Interest Expense to be less than 2.0:1.
(f) Minimum Tangible Net Worth. The Consolidated Tangible Net Worth
of AMB LP determined in conformity with GAAP will at no time be less than the
sum of One Billion Eight Hundred Million Dollars (US$1,800,000,000.00) (or its
equivalent in alternate currency) and ninety percent (90%) of the Net Offering
Proceeds (other than proceeds received within ninety (90) days after the
redemption, retirement or repurchase of ownership or equity interests in either
or both Guarantors, up to the amount paid by either or both Guarantors in
connection with such redemption, retirement or repurchase, where, for the
avoidance of doubt, the net effect is that neither Guarantor shall have
increased its Net Worth as a result of any such proceeds) received by such
Guarantors subsequent to the Closing Date.
(g) Dividends. AMP LP will not, as determined on an aggregate annual
basis, pay any partnership distributions in excess of 95% of the AMP LP's FFO
for such year. During the continuance of a monetary Event of Default, AMP LP
shall only pay partnership distributions that are necessary to enable AMB
Corporation to make those dividends necessary to maintain AMB Corporation's
status as a real estate investment trust.
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(h) Permitted Holdings. The Credit Parties' primary business will
not be substantially different from that conducted by Guarantor on the Closing
Date and shall include the ownership, operation and development of Real Property
Assets and any other business activities of the Credit Parties and their
Subsidiaries will remain incidental thereto. Notwithstanding the foregoing, the
Credit Parties and their Subsidiaries may acquire or maintain Permitted Holdings
if and so long as the aggregate value of Permitted Holdings (excluding Foreign
Property Interests that are not Development Activity), whether held directly or
indirectly by a Credit Party does not exceed, at any time, twenty-five percent
(25%) of Total Asset Value of AMB LP unless a greater percentage is approved by
the Majority Banks (which approval shall not be unreasonably withheld,
conditioned or delayed), provided, however, the Credit Parties and their
Subsidiaries may not acquire or maintain Unimproved Assets (excluding Foreign
Property Interests) if and to the extent that the aggregate value of Unimproved
Assets, whether held directly or indirectly by a Credit Party exceeds, at any
time, seven and one half percent (7 1/2%) of Total Asset Value of AMB LP unless
a greater percentage is approved by the Required Banks (which approval shall not
be unreasonably withheld, conditioned or delayed). For purposes of calculating
the foregoing percentage, the value of Unimproved Assets shall be calculated
based upon the book value thereof, determined in accordance with GAAP.
(i) Foreign Property Limit. Guarantors shall not, and shall not
allow any of their Subsidiaries to, acquire or maintain Properties located
outside the United States if and to the extent that the aggregate value of
Guarantors' interest, without duplication, in such Properties located outside
the United States ("Foreign Property Interests"), whether held directly or
indirectly exceeds, at any time, twenty percent (20%) of Total Asset Value.
(j) No Liens. Guarantors shall not, and shall not allow any of their
Subsidiaries, Financing Partnerships or Joint Venture Subsidiaries to, allow any
Qualifying Unencumbered Property (or any equity interests in such Property that
are owned directly or indirectly by Guarantors or any Joint Venture Parent),
that is necessary to comply with the provisions of Sections 5.8(d) and (e)
hereof, to become subject to a Lien that secures the Indebtedness of any Person,
other than Permitted Liens.
(k) Development Activities. Construction Asset Cost (including,
without limitation, Construction Asset Cost attributable to Foreign Property
Interests) of the Guarantors and the Consolidated Subsidiaries, without
duplication, shall not exceed fifteen percent (15%) of Total Asset Value. For
the purposes of the foregoing calculation, a Construction Asset shall not
include any Property that is eighty-five percent (85%) or more leased to tenants
that are unaffiliated with AMB LP.
(l) Limitation on Joint Venture Interests. The value of any Joint
Venture Interests of the Guarantors (excluding Foreign Property Interests),
deter-
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mined in accordance with GAAP, shall at no time exceed in the aggregate fifteen
percent (15%) of Total Asset Value.
(m) Limitation on Taxable REIT Subsidiaries. The value, determined
in accordance with GAAP, at book value of all Taxable REIT Subsidiaries
(excluding Foreign Property Interests) will not exceed twenty percent (20%) of
Total Asset Value.
(n) Calculation. Each of the foregoing ratios and financial
requirements shall be calculated as of the last day of each Fiscal Quarter.
SECTION 5.9. Restriction on Fundamental Changes.
(a) Neither Guarantor shall enter into any merger or consolidation
without obtaining the prior written consent thereto in writing of the Required
Banks, unless the following criteria are met: (i) such Guarantor is the
surviving entity; (ii) the entity which is merged into such Guarantor is
predominantly in the commercial real estate business; (iii) the creditworthiness
of the surviving entity's long term unsecured debt or implied senior debt, as
applicable, is either (A) Investment Grade or (B) if not Investment Grade, not
lower than Guarantors' creditworthiness two months immediately preceding such
merger; and (iv) in the case of any merger where the then fair market value of
the assets of the entity which is merged into such Guarantor is more than
twenty-five percent (25%) of such Guarantors' then Total Asset Value following
such merger, the consent of the Required Banks has been obtained, which consent
shall not be unreasonably withheld, conditioned or delayed. Neither the
Guarantor shall 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, all or
substantially all of its business or property, whether now or hereafter
acquired. Nothing in this Section shall be deemed to prohibit the sale or
leasing of portions of the Real Property Assets in the ordinary course of
business.
(b) No Borrower shall enter into any merger or consolidation without
obtaining the prior written consent thereto in writing of the Required Banks,
unless the following criteria are met: (i) the surviving entity is predominantly
in the commercial real estate business in Japan; (ii) the surviving entity
continues to be 50% owned, directly or indirectly, by AMB LP and AMB LP
continues to control such surviving entity, (iii) if such merger or
consolidation involves a Qualified Borrower, the surviving entity continues to
qualify as a Qualified Borrower; (iv) the surviving entity assumes all
obligations of its predecessor hereunder; (v) if such merger or consolidation
affects Collateral, substantially similar substitute Collateral (in Agent's
reasonable opinion) are provided as required by Section 2.13 and (vi) a
Ratification is delivered to Administrative Agent. Neither Borrower nor a
Qualified Borrower shall liquidate, wind-up or dissolve (or suffer any
liquidation or dissolution), discontinue its business or convey, lease, sell,
transfer or otherwise dispose of,
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in one transaction or series of transactions, all or substantially all of its
business or property, whether now or hereafter acquired. Nothing in this Section
shall be deemed to prohibit the sale or leasing of portions of the Real Property
Assets in the ordinary course of business.
(c) AMB LP shall not amend its agreement of limited partnership or
other organizational documents in any manner that would have a Material Adverse
Effect without the Required Banks' consent. Without limitation of the foregoing,
no Person shall be admitted as a general partner of AMB LP other than AMB
Corporation. AMB Corporation shall not amend its articles of incorporation,
by-laws, or other organizational documents in any manner that would have a
Material Adverse Effect without the Required Banks' consent. No Borrower shall
amend its articles of incorporation, formation documents or other organizational
documents in any manner that would have a Material Adverse Effect without the
Required Banks' consent. AMB LP shall not make any "in-kind" transfer of any of
its property or assets to any of its constituent partners if such transfer would
result in an Event of Default under Section 6.3(b) by reason of a breach of the
provisions of Section 5.8.
SECTION 5.10. Changes in Business.
(a) Except for Permitted Holdings and Foreign Property Interests,
none of the Credit Parties shall enter into any business which is substantially
different from that conducted by Guarantors on the Closing Date after giving
effect to the transactions contemplated by the Loan Documents. AMB LP shall
carry on its business operations through its Consolidated Subsidiaries and its
Investment Affiliates.
(b) Except for Permitted Holdings and Foreign Property Interests,
AMB LP shall not engage in any line of business which is substantially different
from the business conducted by AMB LP on the Closing Date, which includes the
ownership, operation and development of Real Property Assets and the provision
of services incidental thereto, whether directly or through its Consolidated
Subsidiaries and Investment Affiliates.
SECTION 5.11. AMB Corporation Status.
(a) Status. AMB Corporation shall at all times (i) remain a publicly
traded company listed for trading on the New York Stock Exchange, and (ii)
maintain its status as a self-directed and self-administered real estate
investment trust under the Code.
(b) Indebtedness. AMB Corporation shall not, directly or indirectly,
create, incur, assume or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except:
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(1) the Obligations; and
(2) Indebtedness of AMB LP for which there is recourse to AMB
Corporation which, after giving effect thereto, may be incurred or may
remain outstanding without giving rise to an Event of Default or Default
under any provision of this Article V.
(c) Restriction on Fundamental Changes.
(1) AMB Corporation shall not have an investment in any Person
other than (i) AMB LP or indirectly through AMB LP, (ii) directly or
indirectly in Financing Partnerships, and (iii) the interests identified
on Schedule 5.11(c)(1) attached hereto.
(2) AMB Corporation shall not acquire an interest in any
Property other than securities issued by AMB LP and Financing Partnerships
and the interests identified on Schedule 5.11(c)(2) attached hereto.
(d) Environmental Liabilities. Neither AMB LP nor any of its
Subsidiaries shall become subject to any Environmental Claim which has a
Material Adverse Effect, including, without limitation, any arising out of or
related to (i) the release or threatened release of any Material of
Environmental Concern into the environment, or any remedial action in response
thereto, or (ii) any violation of any Environmental Laws. Notwithstanding the
foregoing provision, AMB LP shall have the right to contest in good faith any
claim of violation of an Environmental Law by appropriate legal proceedings and
shall be entitled to postpone compliance with the obligation being contested as
long as (i) no Event of Default shall have occurred and be continuing, (ii) AMB
LP shall have given Administrative Agent prior written notice of the
commencement of such contest, (iii) noncompliance with such Environmental Law
shall not subject AMB LP or such Subsidiary to any criminal penalty or subject
Administrative Agent or any Bank to pay any civil penalty or to prosecution for
a crime, and (iv) no portion of any Property material to AMB LP or its condition
or prospects shall be in substantial danger of being sold, forfeited or lost, by
reason of such contest or the continued existence of the matter being contested.
(e) Disposal of Ownership Interest.
(i) AMB Corporation will not directly or indirectly convey,
sell, transfer, assign, pledge or otherwise encumber or dispose of any of its
partnership interests in AMP LP or any of its equity interest in any of the
partners of AMB LP as of the date hereof (except in connection with the
dissolution or liquidation of such partners of AMB LP or the redemption of
interests in connection with stock repurchase programs), except for the
reduction of AMB Corporation's interest in AMB LP arising from AMB LP's issuance
of partnership interests in AMB LP or
73
the retirement of preferred units by AMB LP. AMB Corporation will continue to be
the managing general partner of AMB LP.
(ii) AMB LP will not directly or indirectly convey, sell,
transfer, assign, pledge or otherwise encumber or dispose of any of its member
interests in the Initial Borrower unless, following such disposition, AMB LP
continues to own, directly or indirectly, at least fifty percent (50%) of the
Initial Borrower and AMB LP (or a Person that is owned and controlled, directly
or indirectly, by AMB LP) continues to be the sole shareholder, general partner
or managing member or otherwise exercises control over the Initial Borrower.
(iii) Each Qualified Borrower will continue to meet the
qualifications of a Qualified Borrower.
SECTION 5.12. Other Indebtedness. Guarantors shall not allow any of
their Subsidiaries, Financing Partnerships or Joint Venture Subsidiaries that
own, directly or indirectly, any Qualifying Unencumbered Property to directly or
indirectly create, incur, assume or otherwise become or remain liable with
respect to any Indebtedness other than trade debt incurred in the ordinary
course of business and Indebtedness owing to AMB LP or any Financing
Partnership, if the resulting failure of such Property to qualify as a
Qualifying Unencumbered Property would result in an Event of Default under
Section 5.8.
SECTION 5.13. Forward Equity Contracts. If AMB LP shall enter into
any forward equity contracts, AMB LP may only settle the same by delivery of
stock, it being agreed that if AMB LP shall settle the same with cash, the same
shall constitute a Guarantor Event of Default hereunder unless AMB LP shall have
received the unanimous consent of the Banks to settle such forward equity
contracts with cash.
SECTION 5.14. Capital Funding Loans. Notwithstanding anything in
this Agreement to the contrary, in the event that any Property located outside
the United States (each a "Non-US Property") is owned by a Financing Partnership
(a "100% AMB Non-US Property Owner"), by a Joint Venture Subsidiary (a "JV
Non-US Property Owner") or by a wholly-owned direct or indirect subsidiary of a
Joint Venture Subsidiary (a "Tiered Non-US Property Owner"; such Joint Venture
Subsidiary is hereinafter referred to as the "First Tier JV"; each entity
through which the First Tier JV indirectly owns a Tiered Non-US Property Owner
is hereinafter referred to as an "Intermediate Tier Entity"; and the Tiered
Non-US Property Owners, the 100% AMB Non-US Property Owners and the JV Non-US
Property Owners are sometimes hereinafter referred to individually as a "Non-US
Property Owner" and collectively as the "Non-US Property Owners") and the Non-US
Property Owner or, in the case of any Tiered Non-US Property Owner, the related
First Tier JV or a related Intermediate Tier Entity has incurred Indebtedness
(whether or not such Indebtedness is secured by a Lien against such Non-US
Property and/or
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any direct or indirect equity interests in the Non-US Property Owner) (each a
"Capital Funding Loan") held by
(x) in the case of a 100% AMB Non-US Property Owner, AMB LP or any
other Financing Partnership, and
(y) in the case of a JV Non-US Property Owner or a Tiered Non-US
Property Owner, either (AA) an entity (hereinafter an
"International FinCo") in which Guarantors' Share is the same
or greater than Guarantors' Share in such Non-US Property
Owner, or (BB) a Financing Partnership (or AMB LP directly)
and entities which are not Financing Partnerships (including
Persons who are not Affiliates of AMB LP or whose constituent
entities include Persons who are not Affiliates of AMB LP)
("Joint Lenders"), provided that AMB LP's direct or indirect
share of such Indebtedness is the same or greater than
Guarantors' Share of such Non-US Property Owner,
then no such Capital Funding Loan or related Second Tier Funding Loan (as
defined below) shall be deemed to constitute Indebtedness for any purposes under
this Agreement, any Lien securing such Capital Funding Loan shall be a Permitted
Lien and no Non-US Property to which such Capital Funding Loan or Second Tier
Funding Loan relates shall fail to be a Qualifying Unencumbered Property solely
because the capital provided to the applicable Non-US Property Owner or related
First Tier JV or Intermediate Tier Entity was in the form of a Capital Funding
Loan rather than a contribution to the equity of such Non-US Property Owner,
First Tier JV or Intermediate Tier Entity, so long as
(a) in the case of a Capital Funding Loan made by an International
FinCo, the sale of such Capital Funding Loan, or the sale or
refinancing of any interest in the Non-US Property or any
direct or indirect equity interests in the Non-US Property
Owner acquired as a result of the exercise of any remedies in
connection with the enforcement of such Capital Funding Loan,
is Substantially Controlled by AMB LP (as defined below),
(b) in the case of a Capital Funding Loan made by Joint Lenders,
any remedies in connection with enforcement of such Capital
Funding Loan may only be exercised by such Joint Lenders
concurrently and, in the event of any such exercise and the
Joint Lenders acquire such Non-US Property or any direct or
indirect equity interests in such Non-US Property Owner, the
sale or refinancing of such Non-US Property and, if the direct
or indirect equity interests in such Non-US Property Owner are
held jointly, such equity interests will be Substantially
Controlled by AMB LP, and
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(c) no interest in any Capital Funding Loan or Second Tier Funding
Loan held directly or indirectly by AMB LP is subject to any
Lien (other than a Permitted Lien) or any Negative Pledge.
For purposes of the foregoing, an action will be "Substantially Controlled by
AMB LP" if such action is substantially controlled directly by AMB LP or through
one or more Financing Partnerships either by agreement of the parties, through
the provisions of a Person's formation documents or otherwise. For purposes of
the preceding sentence, an action shall be deemed to be substantially controlled
directly by AMB LP or through one or more Financing Partnerships if AMB LP or
such Financing Partnerships have the ability to exercise a usual and customary
buy-sell right in the event of a disagreement regarding such action. As used
herein the term "Second Tier Funding Loan" means any loans made to an
International FinCo by AMB LP, any Financing Partnerships of AMB LP and/or any
other Person with an equity interest in such International FinCo (or affiliates
of such other Person) so long as (x) AMB LP's direct or indirect share of the
combined loans of AMB LP, any Financing Partnership and/or such other Persons
(or affiliates thereof) to the International FinCo is the same or greater than
Guarantors' Share of the applicable Non-US Property Owner, and (y) all such
loans are pari passu and any remedies that may be exercised in connection with
enforcement of such loans may only be exercised concurrently or not at all.
ARTICLE VI
DEFAULTS
SECTION 6.1. Borrower Events of Default. A "Borrower Event of
Default" as to any Borrower shall have occurred if one or more of the following
events shall have occurred and be continuing:
(a) such Borrower shall fail to (i) pay when due any principal of
any Loan, or (ii) such Borrower shall fail to pay when due interest on any Loan
or any fees or any other amount payable to Administrative Agent or the Banks
hereunder and the same shall continue for a period of five (5) days after the
same becomes due;
(b) such Borrower shall fail to observe or perform any covenant of
Section 5.9(b) and (c) and Section 5.11(e)(iii) applicable to such Borrower;
(c) such Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referenced in Section
6.1(a) and (b) hereof) and the Security Documents of such Borrower, if any, for
30 days after written notice thereof has been given to such Borrower by the
Administrative Agent; or if such default is of such a nature that it cannot with
reasonable effort be
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completely remedied within said period of thirty (30) days such additional
period of time as may be reasonably necessary to cure same, provided such
Borrower commences such cure within said thirty (30) day period and diligently
prosecutes same, until completion, but in no event shall such extended period
exceed ninety (90) days; provided, further, that such Borrower, in lieu of such
cure, may within such time periods described above, exercise its right under
Section 2.12 to cause such Security Documents to be terminated and released or
to select another Security Option under Section 2.12, in which event such
failure shall be deemed cured;
(d) any representation, warranty, certification or statement made by
such 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) and, with respect
to such representations, warranties, certifications or statements not known by
such Borrower at the time made or deemed made to be incorrect, the defect
causing such representation or warranty to be incorrect when made (or deemed
made) is not removed within thirty (30) days after written notice thereof from
Administrative Agent to such Borrower;
(e) such Borrower 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, including under Japanese law, any corporate action or
proceedings are undertaken relating to bankruptcy (hasan), civil rehabilitation
(minjisaisei tetsuzuki kaishi), commencement of corporate reorganization
proceedings (kaisha kosei tetsuzuki), commencement of company arrangement
(kaisha seiri) or commencement of special liquidation (tokubetsu seisan); and
except for any such action taken for the purposes of a reconstruction or
amalgamation whilst solvent on terms previously approved by the Administrative
Agent or for the appointment of a liquidator, receiver, administrator,
administrative receiver, conservator, custodian, trustee or similar officer of
it or of any or all of its revenues and assets or seeking the appointment of a
trustee, receiver, liquidate, 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 action to authorize any of the foregoing;
(f) an involuntary case or other proceeding shall be commenced
against such Borrower 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 (including the Japanese laws set forth in Section
6.1(e) above) or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official 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 90 days; or an
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order for relief shall be entered against any Borrower under the federal or
national bankruptcy laws as now or hereafter in effect;
(g) at any time, for any reason, such Borrower seeks to repudiate
its obligations under any Loan Document;
(h) a default by any Borrower beyond any applicable notice or grace
period under any of the other Loan Documents to which such Borrower is a party;
(i) any assets of such Borrower shall constitute "assets" (within
the meaning of ERISA or Section 4975 of the Code, including but not limited to
29 C.F.R. Section 2510.3-101 or any successor regulation thereto) of an
"employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan"
within the meaning of Section 4975(e)(1) of the Code; or
(j) any Notes delivered by such Borrower, any Loans made to such
Borrower, any of the Loan Documents to which such Borrower is a party or the
exercise of any of the Administrative Agent's or any of the Bank's rights in
connection therewith shall constitute a prohibited transaction under ERISA
and/or the Code.
SECTION 6.2. Rights and Remedies with Respect to Borrower Event of
Default. Upon the occurrence of any Borrower Event of Default described in
Sections 6.1(e), (f), (g), (i) or (j) with respect to such Borrower, (i) the
unpaid principal amount of, and any and all accrued interest on, the Loans made
to such defaulting Borrower and any and all accrued fees and other Obligations
of such defaulting Borrower hereunder shall automatically become immediately due
and payable by such defaulting Borrower, 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 such
defaulting Borrower and (ii) the Administrative Agent shall have the right to
immediately make a claim under the Guaranty for, and demand payment by the
Guarantors of, the amounts set forth in subclause (i) above (it being agreed
that the Guarantors' obligations are primary and shall be enforceable against
each Guarantor and its respective successors and assigns without the necessity
for any suit or proceeding of any kind or nature whatsoever brought by the
Administrative Agent or any of the Banks against the defaulting Borrower); and
upon the occurrence and during the continuance of any other Borrower Event of
Default, the Administrative Agent, following consultation with the Banks, may
(and upon the demand of the Required Banks shall), by written notice to such
defaulting Borrower and each Guarantor, in addition to the exercise of all of
the rights and remedies permitted the Administrative Agent and the Banks at law
or equity or under any of the other Loan Documents to which such defaulting
Borrower is a party, (x) declare that the unpaid principal amount of and any and
all
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accrued and unpaid interest on the Loans made to such defaulting Borrower and
any and all accrued fees and other Obligations of such defaulting Borrower
hereunder to be, and the same shall thereupon be, immediately due and payable
with all additional interest from time to time accrued thereon and (except as
otherwise provided in the Loan Documents to which such defaulting Borrower is a
party) 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 such defaulting
Borrower and (y) immediately make a claim under the Guaranty for, and demand
payment by, the Guarantors of such amounts set forth in subclause (x) above (it
being agreed that the Guarantors' obligations are primary and shall be
enforceable against each Guarantor and its respective successors and assigns
without the necessity for any suit or proceeding of any kind or nature
whatsoever brought by the Administrative Agent or any of the Banks against the
defaulting Borrower).
SECTION 6.3. Guarantors Event of Default. A "Guarantor Event of
Default" shall have occurred if one or more of the following events shall have
occurred and be continuing:
(a) any Guarantor shall fail to pay any amounts due under the terms
and conditions of the Guaranty;
(b) any Guarantor shall fail to observe or perform any covenant
contained in Section 5.8, Section 5.9, Section 5.10, Section 5.11(a), (b), (c)
or (e), Section 5.12 or Section 5.13 applicable to such Guarantor;
(c) any Guarantor shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a),
(b), (f), (g), (j), (l), (o) and (s) of this Section 6.3) applicable to such
Guarantor or for 30 days after written notice thereof has been given to such
Guarantor by the Administrative Agent; or if such default is of such a nature
that it cannot with reasonable effort be completely remedied within said period
of thirty (30) days such additional period of time as may be reasonably
necessary to cure same, provided such Guarantor commences such cure within said
thirty (30) day period and diligently prosecutes same, until completion, but in
no event shall such extended period exceed ninety (90) days;
(d) any representation, warranty, certification or statement made by
any Guarantor 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) and, with respect
to such representations, warranties, certifications or statements not known by
such Guarantor at the time made or deemed made to be incorrect, the defect
causing such representation or warranty to be incorrect when made (or deemed
made) is not removed within
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thirty (30) days after written notice thereof from Administrative Agent to such
Guarantor;
(e) any Guarantor or any Subsidiary or any Investment Affiliate of
any Guarantor 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 (other than the Obligations) for which the
aggregate outstanding principal amounts exceed Twenty-Five Million Dollars
(US$25,000,000) (or its equivalent in alternate currency) and such default shall
continue beyond the giving of any required notice and the expiration of any
applicable grace period and such default has not been waived, in writing, by the
holder of any such Debt; or any Guarantor or any Subsidiary or any Investment
Affiliate of any Guarantor shall default in the performance or observance of any
obligation or condition with respect to any such Recourse Debt or any other
event shall occur or condition exist beyond the giving of any required notice
and the expiration of any applicable grace period, if the effect of such
default, event or condition is to accelerate the maturity of any such
indebtedness 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 indebtedness;
(f) any Guarantor 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, including under Japanese law, any corporate action or
proceedings are undertaken relating to bankruptcy (hasan), civil rehabilitation
(minjisaisei tetsuzuki kaishi), commencement of corporate reorganization
proceedings (kaisha kosei tetsuzuki), commencement of company arrangement
(kaisha seiri) or commencement of special liquidation (tokubetsu seisan); and
except for any such action taken for the purposes of a reconstruction or
amalgamation whilst solvent on terms previously approved by the Administrative
Agent or for the appointment of a liquidator, receiver, administrator,
administrative receiver, conservator, custodian, trustee or similar officer of
it or of any or all of its revenues and assets or seeking the appointment of a
trustee, receiver, liquidate, 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 action to authorize any of the foregoing;.
(g) an involuntary case or other proceeding shall be commenced
against any Guarantor 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 (including the Japanese laws set forth in Section
6.3(f) above) or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, and such involuntary case or other
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proceeding shall remain undismissed and unstayed for a period of 90 days; or an
order for relief shall be entered against any Guarantor under the federal or
national bankruptcy laws as now or hereafter in effect;
(h) any Guarantor or any Subsidiary of any Guarantor shall default
(x) in the payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) of any amount owing in respect of any
Non-Recourse Indebtedness beyond the giving of any required notice and the
expiration of any applicable grace period and such default has not been waived,
in writing, by the holder of any such Indebtedness, with respect to which the
principal amounts of any such Indebtedness, in the aggregate, exceed One Hundred
Million Dollars (US$100,000,000) (or its equivalent in alternate currency), or
(y) in the performance or observance of any obligation or condition with respect
to any such Non-Recourse Indebtedness or any other event shall occur or
condition exist beyond the giving of any required notice and the expiration of
any applicable grace period, if, in the case of (x) or (y), the effect of such
default, event or condition is to accelerate the maturity of any such
indebtedness 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 indebtedness and such holder or holders
in fact accelerate the maturity of any such indebtedness;
(i) one or more final, non-appealable judgments or decrees in an
aggregate amount of Ten Million Dollars (US$10,000,000) or more shall be entered
by a court or courts of competent jurisdiction against any Guarantor to the
extent of any recourse to such Guarantor or any Guarantors' Consolidated
Subsidiaries (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 (ii) enforcement proceedings shall
be commenced by any creditor on any such judgments or decrees;
(j) there shall be a change in the majority of the Board of
Directors of AMB Corporation during any twelve (12) month period, excluding any
change in directors resulting from (x) the death or disability of any director,
or (y) satisfaction of any requirement for the majority of the members of the
board of directors or trustees of AMB Corporation to qualify under applicable
law as independent directors or (z) the replacement of any director who is an
officer or employee of AMB Corporation or an affiliate of AMB Corporation with
any other officer or employee of AMB Corporation or an affiliate of AMB
Corporation;
(k) any Person (including affiliates of such Person) or "group" (as
such term is defined in applicable federal securities laws and regulations)
shall acquire more than thirty percent (30%) of the common shares of AMB
Corporation;
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(l) AMB Corporation shall cease at any time to qualify as a real
estate investment trust under the Code;
(m) if any Termination Event with respect to a Plan, Multiemployer
Plan or Benefit Arrangement shall occur as a result of which Termination Event
or Events any member of the ERISA Group has incurred or may incur any liability
to the PBGC or any other Person and the sum (determined as of the date of
occurrence of such Termination Event) of the insufficiency of such Plan,
Multiemployer Plan or Benefit Arrangement and the insufficiency of any and all
other Plans, Multiemployer Plans and Benefit Arrangements with respect to which
such a Termination Event shall occur and be continuing (or, in the case of a
Multiple Employer Plan with respect to which a Termination Event described in
clause (ii) of the definition of Termination Event shall occur and be continuing
and in the case of a liability with respect to a Termination Event which is or
could be a liability of a Guarantor rather than a liability of the Plan, the
liability of a Guarantor) is equal to or greater than US$10,000,000 and which
the Administrative Agent reasonably determines will have a Material Adverse
Effect;
(n) if, any member of the ERISA Group shall commit a failure
described in Section 302(f)(1) of ERISA or Section 412(n)(1) of the Code and the
amount of the lien determined under Section 302(f)(3) of ERISA or Section
412(n)(3) of the Code that could reasonably be expected to be imposed on any
member of the ERISA Group or their assets in respect of such failure shall be
equal to or greater than US$10,000,000 and which the Administrative Agent
reasonably determines will have a Material Adverse Effect;
(o) at any time, for any reason, any Guarantor seeks to repudiate
its obligations under the Guaranty;
(p) a default by any Guarantor beyond any applicable notice or grace
period under this Agreement or any of the other Loan Documents to which such
Guarantor is a party;
(q) any assets of any Guarantor shall constitute "assets" (within
the meaning of ERISA or Section 4975 of the Code, including but not limited to
29 C.F.R. Section 2510.3-101 or any successor regulation thereto) of an
"employee benefit plan" within the meaning of Section 3(3) of ERISA or a "plan"
within the meaning of Section 4975(e)(1) of the Code;
(r) any of the Notes, the Loan, the Obligations, the Guaranty or any
of the Loan Documents or the exercise of any of the Administrative Agent's or
any of the Bank's rights in connection therewith shall constitute a prohibited
transaction under ERISA and/or the Code; or
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(s) if (i) any Insolvency Event shall have occurred with respect to
any Borrower, (ii) the Administrative Agent or any Bank shall be required by any
applicable governmental authority to set up reserves as a result of such
Insolvency Event and (iii) the Guarantors shall fail to either cure such
Insolvency Event or pay in full all outstanding Loans made to such Borrower
within thirty (30) days of the date the Administrative Agent or any Bank shall
be required to set up such reserves.
SECTION 6.4. Rights and Remedies. Upon the occurrence of any
Guarantor Event of Default described in Sections 6.1(f), (g), (o), (q) or (r),
the Commitments shall immediately terminate and 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 Credit Parties;
and upon the occurrence and during the continuance of any other Guarantor Event
of Default, the Administrative Agent, following consultation with the Banks, may
(and upon the demand of the Required Banks shall), by written notice to the
Credit Parties, in addition to the exercise of all of the rights and remedies
permitted the Administrative Agent and the Banks at law or equity or under any
of the other Loan Documents, declare that the Commitments are terminated and
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 (except as
otherwise provided in the Loan Documents) 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 Credit Parties.
SECTION 6.5. Enforcement of Rights and Remedies. Notwithstanding
anything to the contrary contained in this Agreement or in any other Loan
Document, the Administrative Agent and the Banks each agree that any exercise or
enforcement of the rights and remedies granted to the Administrative Agent or
the Banks under this Agreement or at law or in equity with respect to this
Agreement or any other Loan Documents shall be commenced and maintained by the
Administrative Agent on behalf of the Administrative Agent and/or the Banks. The
Administrative Agent shall act at the direction of the Required Banks in
connection with the exercise of any and all remedies at law, in equity or under
any of the Loan Documents or, if the Required Banks are unable to reach
agreement, then, from and after an Event of Default, the Administrative Agent
may pursue such rights and remedies as it may determine.
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SECTION 6.6. Notice of Default. The Administrative Agent shall give
notice to the Credit Parties of a Default promptly upon being requested to do so
by the Required Banks and shall thereupon notify all the Banks thereof. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default (other than nonpayment of
principal of or interest on the Loans) unless Administrative Agent has received
notice in writing from a Bank, a Borrower or a Guarantor referring to this
Agreement or the other Loan Documents, describing such event or condition.
Should Administrative Agent receive notice of the occurrence of a Default or
Event of Default expressly stating that such notice is a notice of a Default or
Event of Default, or should Administrative Agent send any Borrower or Guarantors
a notice of Default or Event of Default, Administrative Agent shall promptly
give notice thereof to each Bank.
SECTION 6.7. 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 (regardless of on whose behalf it shall have been issued) and a
Guarantor Event of Default shall have occurred and be continuing, then, upon the
occurrence and during the continuation thereof, the Administrative Agent, after
consultation with the Banks, may, and upon the demand of the Required Banks
shall, whether in addition to the taking by the Administrative Agent of any of
the actions described in this Article or otherwise, make a demand upon each
Borrower for whom a Letter of Credit was issued, and forthwith upon such demand
(but in any event within ten (10) days after such demand), each such Borrower
shall pay to the Administrative Agent, on behalf of the Banks, in same day funds
at the Administrative 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 Administrative Agent (on behalf of the Banks)
and under its sole dominion and control at such place as shall be designated by
the Administrative Agent, an amount equal to the amount of the Letter of Credit
Usage under the Letters of Credit issued for the account of such Borrower. If,
at any time and from time to time, any Letter of Credit shall have been issued
hereunder for the account of any Borrower and a Borrower Event of Default shall
have occurred and be continuing with respect to such Borrower, then, upon the
occurrence and during the continuation thereof, the Administrative Agent, after
consultation with the Banks, may, and upon the demand of the Required Banks
shall, whether in addition to the taking by the Administrative Agent of any of
the actions described in this Article or otherwise, make a demand upon such
defaulting Borrower for whom a Letter of Credit was issued, and forthwith upon
such demand (but in any event within ten (10) days after such demand), such
defaulting Borrower shall pay to the Administrative Agent, on behalf of the
Banks, in same day funds at the Administrative Agent's office designated in such
demand, for deposit in the Letter of Credit Collateral Account, an amount equal
to the amount of the Letter of Credit Usage under such Letters of Credit issued
for the account of such defaulting Borrower. Interest shall accrue on the Letter
of Credit Collateral Account at a rate equal to the Prime Rate.
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(b) Each Borrower hereby pledges, assigns and grants to the
Administrative Agent, as administrative agent for its benefit and the ratable
benefit of the Banks a lien on and a security interest in, the following
collateral (the "Letter of Credit Collateral"):
(i) the Letter of Credit Collateral Account, all cash of such
Borrower 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
Administrative Agent for or on behalf of such Borrower in substitution for or in
respect of any or all of the then existing Letter of Credit Collateral of such
Borrower;
(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 of such Borrower; 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 such Borrower now or hereafter existing hereunder and under any
other Loan Document.
(c) Each Borrower hereby authorizes the Administrative Agent for the
ratable benefit of the Banks to apply, from time to time after funds of such
Borrower are deposited in the Letter of Credit Collateral Account, funds of such
Borrower then held in the Letter of Credit Collateral Account to the payment of
any amounts, in such order as the Administrative Agent may elect, as shall have
become due and payable by such Borrower to the Banks in respect of the Letters
of Credit issued for the account of such Borrower.
(d) Neither a Borrower nor any Person claiming or acting on behalf
of or through such Borrower shall have any right to withdraw any of the funds
held in the Letter of Credit Collateral Account, except as provided in Section
6.7(h) hereof.
(e) Each Borrower agrees that it will not (i) sell or otherwise
dispose of any interest in the Letter of Credit Collateral of such Borrower 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 of
such Borrower, except for the security interest created by this Section 6.7.
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(f) If any Event of Default shall have occurred and be continuing:
(i) With respect to any Guarantor Event of Default, the
Administrative Agent may, in its sole discretion, without notice to the Credit
Parties except as required by law and at any time from time to time, charge, set
off or otherwise apply all or any part of the Letter of Credit Collateral of any
Borrower first, (x) amounts previously drawn on any Letter of Credit issued for
the account of such Borrower that have not been reimbursed by the applicable
Borrower and (y) any Letter of Credit Usage of such Borrower described in clause
(ii) of the definition thereof that are then due and payable and second, any
other unpaid Obligations then due and payable, in such order as the
Administrative Agent shall elect. With respect to any Borrower Event of Default
relating to any Borrower, the Administrative Agent may, in its sole discretion,
without notice to the Credit Parties except as required by law and at any time
from time to time, charge, set off or otherwise apply all or any part of the
Letter of Credit Collateral of such Borrower first, (x) amounts previously drawn
on any Letter of Credit issued for the account of such Borrower that have not
been reimbursed by such Borrower and (y) any Letter of Credit Usage of such
Borrower described in clause (ii) of the definition thereof that are then due
and payable from such Borrower and second, any other unpaid Obligations of such
Borrower then due and payable, in such order as the Administrative Agent shall
elect. The rights of the Administrative Agent under this Section 6.7 are in
addition to any rights and remedies which any Bank may have.
(ii) The Administrative 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 secured party upon default under the Uniform
Commercial Code in effect in the State of New York at that time.
(g) The Administrative 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 Administrative Agent accords its own
property, it being understood that, assuming such treatment, the Administrative
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 of any Borrower remaining in the Letter of Credit
Collateral Account shall be promptly returned to such Borrower. Absent such cure
or written waiver, any surplus of the funds of any Borrower held in the Letter
of Credit Collateral Account and remaining after payment in full of all of the
Obligations of such Borrower hereunder and under any other Loan Document after
the Maturity Date shall be paid to such Borrower or to whomsoever may be
lawfully entitled to receive such surplus.
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SECTION 6.8. Distribution of Proceeds after Default. Notwithstanding
anything contained herein to the contrary but subject to the provisions of
Section 9.16 hereof , from and after an Event of Default, to the extent proceeds
are received by Administrative Agent, such proceeds will be distributed to the
Banks pro rata in accordance with the unpaid principal amount of the Loans
(giving effect to any participations granted therein pursuant to Section 2.3 and
Section 9.4).
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.1. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental thereto.
Except as set forth in Sections 7.8 and 7.9 hereof, the provisions of this
Article VII are solely for the benefit of Administrative Agent and the Banks,
and no Credit Party shall have any rights to rely on or enforce any of the
provisions hereof. In performing its functions and duties under this Agreement,
Administrative Agent shall each act solely as an agent of the Banks and does not
assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for the Credit Parties.
SECTION 7.2. Agency and Affiliates. Sumitomo Mitsui Banking
Corporation has 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 Administrative Agent and Sumitomo Mitsui Banking Corporation and each of its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Credit Parties or any Subsidiary or affiliate of the
Credit Parties as if it were not the Administrative Agent hereunder, and the
term "Bank" and "Banks" shall include Sumitomo Mitsui Banking Corporation in its
individual capacity.
SECTION 7.3. Action by Administrative Agent. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent shall
not be required to take any action with respect to any Default or Event of
Default, except as expressly provided in Article VI. The duties of
Administrative Agent shall be administrative in nature. Subject to the
provisions of Sections 7.1, 7.5 and 7.6, Administrative Agent shall administer
the Loans in the same manner as it administers its own loans.
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SECTION 7.4. Consultation with Experts. As between Administrative
Agent on the one hand and the Banks on the other hand, the Administrative Agent
may consult with legal counsel (who may be counsel for the Credit Parties),
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 7.5. Liability of Administrative Agent. As between
Administrative Agent on the one hand and the Banks on the other hand, neither
the Administrative Agent nor any of its affiliates nor any of its 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 (ii) in the absence of its own gross negligence or willful
misconduct. As between Administrative Agent on the one hand and the Banks on the
other hand, neither the Administrative 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 borrowing hereunder; (ii) the performance
or observance of any of the covenants or agreements of the Credit Parties; (iii)
the satisfaction of any condition specified in Article III, except receipt of
items required to be delivered to Administrative 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. As between
Administrative Agent on the one hand and the Banks on the other hand,
Administrative 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 to be genuine or to be
signed by the proper party or parties.
SECTION 7.6. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Administrative Agent and its affiliates and
their respective directors, officers, agents and employees (to the extent not
reimbursed by the Credit Parties) against any cost, expense (including, without
limitation, counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitee's gross negligence or
willful misconduct) that such indemnitee may suffer or incur in connection with
its duties as Administrative Agent under this Agreement, the other Loan
Documents or any action taken or omitted by such indemnitee hereunder. In the
event that Administrative Agent shall, subsequent to its receipt of
indemnification payment(s) from Banks in accordance with this section, recoup
any amount from any Credit Party, or any other party liable therefor in
connection with such indemnification, Administrative Agent shall reimburse the
Banks which previously made the payment(s) pro rata, based upon the actual
amounts which were theretofore paid by each Bank. Administrative Agent shall
reimburse such Banks so entitled to reimbursement within two (2) Business Days
of its receipt of such funds from such Credit Party or such other party liable
therefor.
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SECTION 7.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative 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
Administrative 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.
SECTION 7.8. Successor Agent. The Administrative Agent may resign at
any time by giving notice thereof to the Banks and the Credit Parties and the
Administrative Agent, shall resign in the event its Commitment (without
participants) is reduced to less than the Commitment of any other Bank. Upon any
such resignation, the Majority Banks shall have the right to appoint a successor
Administrative Agent which successor Administrative Agent shall be subject to
Fronting Bank's approval and, provided no Guarantor Event of Default has
occurred and is then continuing, be subject to AMB LP's approval, which approval
(in both cases) shall not be unreasonably withheld or delayed. If no successor
Administrative Agent shall have been so appointed by the Majority Banks and
approved by AMB LP and the Fronting Bank, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent gives notice
of resignation, then the retiring Administrative Agent may, on behalf of the
Banks, appoint a successor Administrative Agent, which shall be the
Administrative Agent who shall act until the Majority Banks shall appoint an
Administrative Agent. Any appointment of a successor Administrative Agent by
Majority Banks or the retiring Administrative Agent pursuant to the preceding
sentence shall be subject to the approval of the Fronting Bank approval and,
provided no Guarantor Event of Default has occurred and is then continuing, AMB
LP's approval, which approval (in either case) shall not be unreasonably
withheld or delayed. Upon the acceptance of its appointment as the
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation hereunder, 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 Administrative Agent. For gross
negligence or willful misconduct, as determined by all the Banks (excluding for
such determination Administrative Agent in its capacity as a Bank),
Administrative Agent may be removed at any time by giving at least thirty (30)
Business Days' prior written notice to Administrative Agent and Borrower. Such
resignation or removal shall take effect upon the acceptance of appointment by a
successor Administrative Agent in accordance with the provisions of this Section
7.8.
SECTION 7.9. Consents and Approvals. All communications from
Administrative Agent to the Banks requesting the Banks' determination, consent,
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approval or disapproval (i) shall be given in the form of a written notice to
each Bank, (ii) shall be accompanied by a description of the matter or item as
to which such determination, approval, consent or disapproval is requested, or
shall advise each Bank where such matter or item may be inspected, or shall
otherwise describe the matter or issue to be resolved, (iii) shall include, if
reasonably requested by a Bank and to the extent not previously provided to such
Bank, written materials and a summary of all oral information provided to
Administrative Agent by a Borrower or any Guarantor in respect of the matter or
issue to be resolved and (iv) shall include Administrative Agent's recommended
course of action or determination in respect thereof ). Each Bank shall reply
promptly, but in any event within ten (10) Business Days after receipt of the
request therefor from Administrative Agent (the "Bank Reply Period"). Unless a
Bank shall give written notice to Administrative Agent that it objects to the
recommendation or determination of Administrative Agent (together with a written
explanation of the reasons behind such objection) within the Bank Reply Period,
such Bank shall be deemed to have approved of or consented to such
recommendation or determination. With respect to decisions requiring the
approval of the Required Banks, Majority Banks or all the Banks, Administrative
Agent shall submit its recommendation or determination for approval of or
consent to such recommendation or determination to all Banks and upon receiving
the required approval or consent (or deemed approval or consent, as the case may
be) shall follow the course of action or determination of the Required Banks,
Majority Banks or all the Banks (and each non-responding Bank shall be deemed to
have concurred with such recommended course of action), as the case may be.
SECTION 7.10. Cooperation with Asset Liquidation Plan Amendments.
TMK Qualified Borrowers may be required from time to time to amend their
respective Asset Liquidation Plans as a result of (i) certain of their
respective actions taken in accordance with this Agreement or (ii) their status
as Qualified Borrowers under this Agreement. The Administrative Agent and each
of the Banks acknowledges the foregoing and hereby consents to any and all
amendments to each TMK Qualified Borrower's Asset Liquidation Plan which is
required as a result of (i) each TMK's respective actions taken in accordance
with this Agreement or (ii) their status as a Qualified Borrower under this
Agreement except to the extent any such amendment materially adversely affects
the rights and/or remedies of any such Bank hereunder. The Administrative Agent
and each of the Banks shall reasonably cooperate with any TMK Qualified
Borrower, at such TMK Qualified Borrower's sole cost and expense, in amending
its Asset Liquidation Plan and timely provide any TMK Qualified Borrower with
such executed consents, acknowledgments of notice or other documents as such TMK
Qualified Borrower may reasonably request or as may be required by the
applicable Japanese governmental authorities to so amend its Asset Liquidation
Plan. In furtherance of the forgoing, each Bank shall execute and deliver to the
Administrative Agent on the Closing Date twelve (12) originals of the "Prior
Consent Concerning Amendment to Asset Liquidation Plan" in the form of Exhibit F
(the "Consents"), and the Banks hereby authorize the Administrative Agent to
complete one or more of such Consents and deliver the same in the event any
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TMK Qualified Borrower seeks to amend its Asset Liquidation Plan in accordance
with this Section 7.10. Upon the request of the Administrative Agent during the
Term, each Bank shall promptly execute and deliver such additional Consents as
may be necessary for the purposes set forth in this Section 7.10.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any TIBOR
Borrowing, the Administrative Agent determines in good faith that deposits in
Yen (in the applicable amounts) are not being offered in the relevant market for
such Interest Period, the Administrative Agent shall forthwith give notice
thereof to AMB LP and the Banks, whereupon until the Administrative Agent
notifies AMB LP and the Banks that the circumstances giving rise to such
suspension no longer exist, the obligations of the Banks to make TIBOR Loans
shall be suspended. In such event, unless the applicable Borrower notifies the
Administrative Agent on or before the second (2nd) Business Day before, but
excluding, the date of any TIBOR Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing.
SECTION 8.2. Illegality. If, on or after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in any
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 Lending Office) with any request or directive (whether or
not having the force of law) made after the Closing Date of any such authority,
central bank or comparable agency shall make it unlawful for any Bank (or its
Lending Office) (x) to make, maintain or fund its TIBOR Loans, or (y) to
participate in any Letter of Credit issued by the Fronting Bank, or, with
respect to the Fronting Bank, to issue a Letter of Credit, the Administrative
Agent shall forthwith give notice thereof to the other Banks and the Credit
Parties, whereupon until such Bank notifies the Credit Parties and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank in the case of the event described in
clause (x) above to make TIBOR Loans, or in the case of the event described in
clause (y) above, 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. With respect to TIBOR Loans, before giving any notice to the
Administrative Agent pursuant to this Section, such Bank shall designate a
different 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
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Bank shall determine that it may not lawfully continue to maintain and fund any
of its outstanding TIBOR Loans to maturity and shall so specify in such notice,
the applicable Borrower shall be deemed to have delivered a Notice of Interest
Rate Election and such TIBOR Loan shall be converted as of such date to a Base
Rate Loan (without payment of any amounts that such Borrower would otherwise be
obligated to pay pursuant to Section 2.15 hereof with respect to Loans converted
pursuant to this Section 8.2) in an equal principal amount from such Bank (on
which interest and principal shall be payable contemporaneously with the related
TIBOR Loans of the other Banks), and such Bank shall make such a Base Rate Loan.
If at any time, it shall be unlawful for any Bank to make, maintain
or fund its TIBOR Loans, AMB LP shall have the right, upon five (5) Business
Day's notice to the Administrative Agent, to either (x) cause a bank, reasonably
acceptable to the Administrative Agent, to offer to purchase the Commitments of
such Bank for an amount equal to such Bank's outstanding Loans, together with
accrued and unpaid interest thereon, and to become a Bank hereunder, or obtain
the agreement of one or more existing Banks to offer to purchase the Commitments
of such Bank for such amount, which offer such Bank is hereby required to
accept, or (y) to repay in full all Loans then outstanding of such Bank,
together with interest due thereon and any and all fees due hereunder, upon
which event, such Bank's Commitments shall be deemed to be canceled pursuant to
Section 2.11(c).
SECTION 8.3. Increased Cost and Reduced Return.
(a) If, on or after the date hereof, the adoption of any applicable
law, rule or regulation, or any change in any 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
Lending Office) with any request or directive (whether or not having the force
of law) made at the Closing Date 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 Japanese
Central Bank), 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 Lending Office) or shall impose on any Bank (or its Lending
Office) or on the interbank market any other condition materially more
burdensome in nature, extent or consequence than those in existence as of the
Loan Effective Date affecting such Bank's TIBOR Loans, its Note, or its
obligation to make TIBOR Loans, and the result of any of the foregoing is to
increase the cost to such Bank (or its Lending Office) of making or maintaining
any TIBOR Loan, or to reduce the amount of any sum received or receivable by
such Bank (or its Lending Office) under this Agreement or under its Note with
respect to such TIBOR Loans, by an amount deemed by such Bank to be material,
then, within 15 days after demand by such Bank (with a copy to the
Administrative Agent), each Borrower shall pay to such Bank such additional
amount or amounts attributable to the TIBOR Loans made
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to such Borrower (based upon a reasonable allocation thereof by such Bank to the
TIBOR Loans made by such Bank hereunder) as will compensate such Bank for such
increased cost or reduction to the extent such Bank generally imposes such
additional amounts on other borrowers of such Bank in similar circumstances.
(b) If any Bank shall have reasonably 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
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) made after the Closing Date 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 reasonably 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 Administrative Agent), each Borrower shall pay to such Bank such additional
amount or amounts attributable to the TIBOR Loans made to such Borrower as will
compensate such Bank (or its Parent) for such reduction to the extent such Bank
generally imposes such additional amounts on other borrowers of such Bank in
similar circumstances.
(c) Each Bank will promptly notify AMB LP and the Administrative
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 Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the reasonable
judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall fail to notify AMB LP of any such event within ninety (90) days following
the end of the month during which such event occurred, then the applicable
Borrower's and Guarantor's liability for any amounts described in this Section
incurred by such Bank as a result of such event shall be limited to those
attributable to the period occurring subsequent to the ninetieth (90th) day
prior to, but excluding, the date upon which such Bank actually notified AMB LP
of the occurrence of such event. A certificate of any Bank claiming compensation
under this Section and setting forth a reasonably detailed calculation of the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of demonstrable error. In determining such amount, such Bank may use
any reasonable averaging and attribution methods.
(d) If at any time, any Bank shall be owed amounts pursuant to this
Section 8.3, AMB LP shall have the right, upon five (5) Business Day's notice to
the Administrative Agent to either (x) cause a bank, reasonably acceptable to
the Administrative Agent, to offer to purchase the Commitments of such Bank for
an
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amount equal to such Bank's outstanding Loans, and to become a Bank hereunder,
or to obtain the agreement of one or more existing Banks to offer to purchase
the Commitments of such Bank for such amount, which offer such Bank is hereby
required to accept, or (y) to repay in full all Loans then outstanding of such
Bank, together with interest and all other amounts due thereon, upon which
event, such Bank's Commitment shall be deemed to be canceled pursuant to Section
2.11(c).
SECTION 8.4. Taxes.
(a) Any and all payments by a Credit Party to or for the account of
any Bank or the Administrative 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 Administrative Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Administrative 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
Lending Office or any political subdivision thereof or by any other jurisdiction
(or any political subdivision thereof) as a result of a present or former
connection between such Bank or Administrative Agent and such other jurisdiction
or by the United States (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Non-Excluded Taxes"). If a Credit Party shall be required by law to deduct
any Non-Excluded Taxes from or in respect of any sum payable hereunder or under
any Note or Letter of Credit, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including, without
limitation, deductions applicable to additional sums payable under this Section
8.4) such Bank, the Fronting Bank or the Administrative Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Credit Party shall make such deductions, (iii)
the Credit Party shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Credit Party shall furnish to the Administrative Agent, at its address referred
to in Section 9.1, the original or a certified copy of a receipt evidencing
payment thereof.
(b) In addition, each 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
made by such Borrower, any Security Documents of such Borrower or any Letter of
Credit issued for the account of such Borrower or from the execution or delivery
of, or otherwise with respect to, this Agreement, any Note made by such
Borrower, any Security Documents of such Borrower or any Letter of Credit issued
for the account of such Borrower (hereinafter referred to as "Other Taxes").
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(c) In the event that Non-Excluded Taxes not imposed on the Closing
Date are imposed, or Non-Excluded Taxes imposed on the Closing Date increase,
the applicable Bank shall notify the Administrative Agent and the Credit Parties
of such event in writing within a reasonable period following receipt of
knowledge thereof. If such Bank shall fail to notify the Credit Parties of any
such event within ninety (90) days following the end of the month during which
such event occurred, then such Credit Partys' liability for such additional
Non-Excluded Taxes incurred by such Bank as a result of such event (including
payment of a make-whole amount under Section 8.4(a)(i)) shall be limited to
those attributable to the period occurring subsequent to the ninetieth (90th)
day prior to, but excluding, the date upon which such Bank actually notified the
Credit Parties of the occurrence of such event.
(d) Each Borrower agrees to indemnify each Bank, the Fronting Bank
and the Administrative Agent for the full amount of Non-Excluded Taxes or Other
Taxes for which such Borrower is liable under this Section 8.4 (including,
without limitation, any Non-Excluded 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 Administrative Agent (as the case may be) and, so long
as such Bank, the Fronting Bank or Administrative Agent has promptly paid any
such Non-Excluded Taxes or Other Taxes, any liability for penalties and interest
arising therefrom or with respect thereto. This indemnification shall be made
within 15 days from the date such Bank, the Fronting Bank or the Administrative
Agent (as the case may be) makes demand therefor.
(e) Each Bank confirms to the Administrative Agent and to each
Credit Party (on the date hereof or, in the case of a Bank which becomes a party
hereto pursuant to a transfer or assignment, on the date on which the relevant
transfer or assignment becomes effective) that it is Qualified Institutional
Investor and each Bank shall promptly notify the Administrative Agent and each
Credit Party if there is any change in its status as a Qualified Institutional
Investor.
(f) Each Bank will promptly on request by any Borrower incorporated
under the laws of Japan or borrowing through its registered branch in Japan take
all reasonable steps (if any) required to be taken to establish entitlement to
exemption for such Borrower from withholding under any applicable Japanese laws
and any applicable double tax treaty, including satisfying any reasonable
information, reporting or other requirement and completion and filing of
relevant forms, claims, declarations and similar documents and shall provide
such Borrower with copies of all forms, claims, declarations and similar
documents filed for such purpose.
(g) Each Bank which is established under the laws of a jurisdiction
other than Japan and which is acting hereunder through a Lending Office in Japan
agrees that it shall, if necessary, from time to time obtain from the relevant
tax
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authorities a certificate certifying that such payment constitutes domestic
source income (as provided for in Article 180 of the Income Tax Law (Law No. 33,
1965)) and deliver such certificate to each Borrower as required by Article 180,
unless prevented from so doing as a result of the introduction of, or any change
in, or any change in the interpretation or the application of, any law or
regulation or as a result of compliance with any law or regulation made after
the date of this Agreement. Upon reasonable demand by any Credit Party to the
Administrative Agent or any Bank, the Administrative Agent or Bank, as the case
may be, shall deliver to the Credit Party, or to such government or taxing
authority as the Credit Party may reasonably direct, any form or document that
may be required or reasonably re quested in writing in order to allow the Credit
Party to make a payment to or for the account of such Bank or the Administrative
Agent hereunder or under any other Loan Document without any deduction or
withholding for or on account of any Non- Excluded Taxes or with such deduction
or withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the legal or
commercial position of the party in receipt of such demand), with any such form
or document to be accurate and completed in a manner reasonably satisfactory to
the Credit Party making such demand and to be executed and to be delivered with
any reasonably required certification.
(h) For any period with respect to which a Bank has failed to
provide any Borrower with the appropriate form pursuant to Section 8.4(g)
(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(d) with
respect to Non-Excluded Taxes; provided, however, that should a Bank, which is
otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Non-Excluded Taxes because of its failure to deliver a form required
hereunder, such Borrower shall take such steps as such Bank shall reasonably
request to assist such Bank to recover such Taxes so long as such Borrower shall
incur no cost or liability as a result thereof.
(i) If any 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 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.
(j) If at any time, any Bank shall be owed amounts pursuant to this
Section 8.4, AMB LP shall have the right, upon five (5) Business Day's notice to
the Administrative Agent to either (x) cause a bank, reasonably acceptable to
the Administrative Agent, to offer to purchase the Commitments of such Bank for
an amount equal to such Bank's outstanding Loans, and to become a Bank
hereunder, or to obtain the agreement of one or more existing Banks to offer to
purchase the Commitments of such Bank for such amount, which offer such Bank is
hereby required to accept, or (y) to repay in full all Loans then outstanding of
such Bank,
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together with interest and all other amounts due thereon, upon which event, such
Bank's Commitment shall be deemed to be canceled pursuant to Section 2.11(c).
SECTION 8.5. Base Rate Loans Substituted for Affected TIBOR Loans.
If (i) the obligation of any Bank to make TIBOR Loans has been suspended
pursuant to Section 8.2 or (ii) any Bank has demanded compensation under Section
8.3 or 8.4 with respect to its TIBOR Loans and any Borrower shall, by at least
five Business Days' prior notice to such Bank through the Administrative Agent,
have elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies such Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer exist:
(a) such Borrower shall be deemed to have delivered a Notice of
Interest Rate Election with respect to such affected TIBOR Loans and thereafter
all Loans which would otherwise be made by such Bank to such Borrower as TIBOR
Loans shall be made instead as Base Rate Loans; and
(b) after each of its TIBOR Loans has been repaid, all payments of
principal which would otherwise be applied to repay such TIBOR Loans shall be
applied to repay its Base Rate Loans instead, and
(c) such Borrower will not be required to make any payment which
would otherwise be required by Section 2.15 with respect to such TIBOR Loans
converted to Base Rate Loans pursuant to clause (a) above.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission followed by telephonic confirmation or similar writing)
and shall be given to such party: (x) in the case of each of the Credit Parties,
to AMB LP at its address, telex number or facsimile number set forth on Exhibit
G attached hereto, (y) in the case of the Administrative Agent, at its address,
telex number or facsimile number set forth on Exhibit G attached hereto, or (z)
in the case of any Bank, at its address, telex number or facsimile number set
forth in its Administrative Questionnaire. The Administrative Agent agrees to
provide AMB LP with the address, telex number or facsimile number for each Bank.
Each such notice, request or other communication shall be effective (i) if given
by telex or facsimile transmission, when such telex or facsimile is transmitted
to the telex number or facsimile number specified in this Section and the
appropriate answerback or facsimile confirmation is received, (ii) if given by
certified registered mail, return receipt requested, with first class postage
prepaid, addressed as aforesaid, upon receipt or refusal to accept
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delivery, (iii) if given by a nationally recognized overnight carrier, 48 hours
after such communication is deposited with such carrier with postage prepaid for
next day delivery, or (iv) if given by any other means, when delivered at the
address specified in this Section; provided that notices to the Administrative
Agent under Article II or Article VIII shall not be effective until received.
SECTION 9.2. No Waivers. No failure or delay by the Administrative
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 9.3. Expenses; Indemnification.
(a) The Guarantors and, in the case of clause (iii) below, each
Credit Party (provided each Borrower shall only be liable for the enforcement
costs incurred with respect to the Loan Documents to which such Borrower is a
party, provided, further, the Guarantors shall be liable for all enforcement
costs incurred with respect to all of the Loan Documents) shall pay within
thirty (30) days after written notice from the Administrative Agent, (i) all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, reasonable fees and disbursements of special
counsel Skadden, Arps, Slate, Meagher & Flom LLP ), in connection with the
preparation of this Agreement, the Loan Documents and the documents and
instruments referred to therein, and any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder, (ii) all
reasonable fees and disbursements of special counsel in connection with the
syndication of the Loans, and (iii) if an Event of Default occurs, all
reasonable out- of-pocket expenses incurred by the Administrative Agent and each
Bank, including, without limitation, fees and disbursements of counsel for the
Administrative Agent and each of the Banks, in connection with the enforcement
of the Loan Documents including, without limitation, the Notes and Security
Documents and any other instruments referred to therein, and such Event of
Default and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom; provided, however, that the attorneys' fees and
disbursements for which any Credit Party is obligated under this subsection
(a)(iii) shall be limited to the reasonable non-duplicative fees and
disbursements of (A) counsel for Administrative Agent and (B) counsel for all of
the Banks as a group; and provided, further, that all other costs and expenses
for which any Credit Party is obligated under this subsection (a)(iii) shall be
limited to the reasonable non-duplicative costs and expenses of Administrative
Agent. For purposes of this Section 9.3(a)(iii), (1) counsel for Administrative
Agent shall mean a single outside law firm representing Administrative Agent and
(2) counsel for all of the Banks as a group shall mean a single outside law firm
representing such Banks as a group (which law firm may or may not be the same
law firm representing the Administrative Agent).
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(b) Each Borrower agrees to indemnify the Administrative 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 liabilities, losses, damages,
costs and expenses of any kind, including, without limitation, the reasonable
fees and disbursements of counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial proceeding that
may at any time (including, without limitation, at any time following the
payment of the Obligations) be asserted against 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, (ii) any violation by such Borrower or its
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 such Borrower or any of its Environmental
Affiliates, including, without limitation, all on-site and off-site activities
of such Borrower or any of its Environmental Affiliate involving Materials of
Environmental Concern, (iv) the breach of any environmental representation or
warranty of such Borrower and/or any Guarantor set forth herein, but excluding
those liabilities, losses, damages, costs and expenses (a) for which such
Indemnitee has been compensated pursuant to the terms of this Agreement, (b)
incurred solely by reason of the gross negligence, willful misconduct bad faith
or fraud of any Indemnitee as finally determined by a court of competent
jurisdiction, (c) arising from violations of Environmental Laws relating to a
Property which are caused by the act or omission of such Indemnitee after such
Indemnitee takes possession of such Property or (d) owing by such Indemnitee to
any third party based upon contractual obligations of such Indemnitee owing to
such third party which are not expressly set forth in the Loan Documents. In
addition, the indemnification set forth in this Section 9.3(b) in favor of any
director, officer, agent or employee of Administrative Agent or any Bank shall
be solely in their respective capacities as such director, officer, agent or
employee. Each Borrower's obligations under this Section shall survive the
termination of this Agreement, the release of a Qualified Borrower pursuant to
Section 2.20 and the payment of the Obligations. Without limitation of the other
provisions of this Section 9.3, each Borrower shall indemnify and hold each of
the Administrative Agent and the Banks free and harmless from and against all
loss, costs (including reasonable attorneys' fees and expenses), expenses,
taxes, and damages (including consequential damages) that the Administrative
Agent and the Banks may suffer or incur by reason of the investigation, defense
and settlement of claims and in obtaining any prohibited transaction exemption
under ERISA or the Code necessary in the Administrative Agent's reasonable
judgment by reason of the inaccuracy of the representations and warranties of
such Borrower and/or any Guarantor, or a breach by such Borrower and/or any
Guarantor of the provisions, set forth in Section 4.1(f)(ii).
SECTION 9.4. 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
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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 any Credit
Party or to any other Person, any such notice being hereby expressly waived, but
subject to the prior consent of the Administrative Agent, which consent shall
not be unreasonably withheld, to set off and to appropriate and apply any and
all deposits (general or special, time or demand, provisional or final) 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, any Credit Party against and on account of the
Obligations of any Credit Party 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 (provided,
however, with respect to any Borrower Event of Default, each Bank shall have the
right to exercise any or all of the foregoing rights only with respect to the
defaulting Borrower and the Obligations of such defaulting Borrower). 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 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, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks, 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 Bank 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 to any deposits not
received in connection with the Loans and to apply the amount subject to such
exercise to the payment of indebtedness of any Credit Party other than its
indebtedness under the Notes, the Guaranty or the Letters of Credit. Each Credit
Party agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Note or a Letter of Credit,
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 such Credit Party in the amount of such participation.
Notwithstanding anything to the contrary contained herein, any Bank may, by
separate agreement with a Credit Party, waive its right to set off contained
herein or granted by law and any such written waiver shall be effective against
such Bank under this Section 9.4.
SECTION 9.5. Amendments and Waivers.
(a) Except as provided below in Section 9.5(b), any provision of
this Agreement or the Notes or 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 Credit Parties and the Majority Banks (and, if the rights or
duties of the
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Administrative or the Fronting Bank in their capacity as Administrative Agent or
the Fronting Bank, as applicable, are affected thereby, by the Administrative
Agent or the Fronting Bank, as applicable); provided that (A) no amendment or
waiver of the provisions of, or waiver of a default under, Article V (including,
without limitation, any of the definitions of the defined terms used in Article
V or any change in the notice and cure periods, if any, described in Section 6.1
and Section 6.3 and applicable to defaults under Article V), other than the
provisions of Section 5.8(h) requiring Majority Bank consent, shall be effective
unless signed (or otherwise consented to) by the Credit Parties and the Required
Banks and (B) no amendment or waiver with respect to this Agreement, the Notes,
the Letters of Credit or any other Loan Documents 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 hereunder, (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) 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, (v) release the
Guaranty or (vi) modify the provisions of this Section 9.5.
(d) Notwithstanding the foregoing, in the event that the Guarantors
or the Existing Credit Agreement Agent propose to modify, waive or restate the
financial covenants, reporting requirements or non-monetary Events of Default
(and related definitions) of the Existing Credit Agreement in writing (which may
include a written waiver of an existing actual or potential Default or Event of
Default that is intended to be eliminated by such modification, restatement or
waiver) (individually, a "Covenant Modification"), simultaneously with the
written submission of such proposal to the Existing Credit Agreement bank group
(such proposal being the "Existing Credit Agreement Proposal"), Borrower and the
Guarantors shall deliver a duplicative proposal for a Covenant Modification with
respect to the Facility to the Administrative Agent and the Banks. Borrower
shall pay the same percentage fees to the Administrative Agent and the Banks as
the Guarantors shall pay to the Existing Credit Agreement Agent (or agents) and
the lenders under the Existing Credit Agreement in connection with such
modification, restatement or waiver. The decision whether to accept such
Covenant Modification shall require the consent of the Required Banks hereunder
unless such Covenant Modification is of the nature that would require the
consent of all of the Banks; it being understood that even if the applicable
Banks shall fail to consent to the Covenant Modification, the provisions of the
Existing Credit Agreement, as so modified, restated or waived in writing by the
"Required Banks" (as defined in the Existing Credit Agreement) thereunder (or if
applicable, all of the lenders thereunder), shall control. Notwithstanding the
foregoing, in no event shall Administrative Agent and the Banks be required to
accept any Covenant Modification that modifies, amends or waives the
Administrative Agent's rights under this Agreement with respect to the Banks as
the "agent"
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under the Facility or subjects the Administrative Agent, as the "agent" under
the Facility to any additional obligations to the Banks pursuant to this
Agreement.
SECTION 9.6. 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 Credit Parties may not assign or otherwise transfer any
of their rights under this Agreement or the other Loan Documents without the
prior written consent of all Banks and the Administrative Agent and a Bank may
not assign or otherwise transfer any of its interest under this Agreement except
as permitted in subsection (b) and (c) of this Section 9.6.
(b) Prior to the occurrence of a Guarantor Event of Default, any
Bank may at any time, grant to an existing Bank, one or more banks, finance
companies, insurance companies or other financial institutions which are
Qualified Institutional Investors (a "Participant") in minimum amounts of not
less than JPY350,000,000 (or any lesser amount in the case of participations to
an existing Bank) participating interests in its Commitment or any or all of its
Loans. After the occurrence and during the continuance of a Guarantor Event of
Default, any Bank may at any time grant to any Person in any amount (also a
"Participant"), participating interests in its Commitment or any or all of its
Loans. Any participation made during the continuation of a Guarantor Event of
Default shall not be affected by the subsequent cure of such Guarantor Event of
Default. In the event of any such grant by a Bank of a participating interest to
a Participant, whether or not upon notice to the Credit Parties and the
Administrative Agent, such Bank shall remain responsible for the performance of
its obligations hereunder, and the Credit Parties and the Administrative 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 Credit Parties 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), (iv) or (v) of Section 9.5 without the
consent of the Participant. The Credit Parties agree 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.
(c) Any Bank may at any time assign to a Qualified Institution (in
each case, an "Assignee") (i) prior to the occurrence of a Guarantor Event of
Default, in minimum amounts of not less than JPY350,000,000 and integral
multiple of JPY1,000,000 thereafter (or any lesser amount in the case of
assignments to an existing Bank) and (ii) after the occurrence and during the
continuance of a Guarantor
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Event of Default, in any amount, all or a proportionate part of all, of its
rights and obligations under this Agreement, the Notes and the other Loan
Documents, and, in either case, such Assignee shall assume such rights and
obligations, pursuant to a Transfer Supplement in substantially the form of
Exhibit H hereto executed by such Assignee and such transferor Bank; provided,
that if no Guarantor Event of Default shall have occurred and be continuing,
such assignment shall be subject to the Administrative Agent's, the Fronting
Bank's and AMB LP's consent, which consent shall not be unreasonably withheld or
delayed; and provided further that if an Assignee is an affiliate of such
transferor Bank or was a Bank immediately prior to such assignment, AMB LP's
consent shall not be required. 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 no further consent or action by any party shall be required and
the transferor Bank shall be released from its obligations hereunder to a
corresponding extent. Upon the consummation of any assignment pursuant to this
subsection (c), the transferor Bank, the Administrative Agent and each Borrower
shall make appropriate arrangements so that, if required and in accordance with
Section 2.6 hereof, a new Note is issued to the Assignee. In connection with any
such assignment (other than an assignment by a Bank to an affiliate), the
transferor Bank shall pay to the Administrative Agent an administrative fee for
processing such assignment in the amount of US$3,500. If the Assignee is
established under the laws of a jurisdiction other than Japan and is acting
hereunder through a Lending Office in Japan, it shall deliver to AMB LP and the
Administrative Agent a certificate from the relevant tax authorities certifying
that any and all payments by a Credit Party to or for the account of the
Assignee constitutes domestic source income (as provided for in Article 180 of
the Income Tax Law (Law No. 33, 1965)) in accordance with Section 8.4. Any
assignment made during the continuation of a Guarantor Event of Default shall
not be affected by any subsequent cure of such Guarantor Event of Default.
(d) 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 AMB LP'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 Lending Office under certain circumstances or at a time
when the circumstances giving rise to such greater payment did not exist.
(e) No Assignee of any rights and obligations under this Agreement
shall be permitted to further assign less than all of such rights and
obligations. No participant in any rights and obligations under this Agreement
shall be permitted to sell subparticipations of such rights and obligations.
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(f) Anything in this Agreement to the contrary notwithstanding, so
long as no Guarantor Event of Default shall have occurred and be continuing, no
Bank shall be permitted to enter into an assignment of, or sell a participation
interest in, its rights and obligations hereunder which would result in such
Bank holding a Commitment without participants of less than JPY350,000,000
unless as a result of a cancellation or reduction of the aggregate Commitments
(or in the case of the Administrative Agent, less than the Commitment of any
other Bank); provided, however, that no Bank shall be prohibited from assigning
its entire Commitment so long as such assignment is otherwise permitted under
this Section 9.6.
SECTION 9.7. Collateral. Each of the Banks represents to the
Administrative Agent and each of the other Banks that it in good faith is not
relying upon any "margin stock" (as defined in Regulation U) as collateral in
the extension or maintenance of the credit provided for in this Agreement.
SECTION 9.8. Governing Law; Submission to Jurisdiction; Judgment
Currency. (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUN DER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITH OUT
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, each Credit Party 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. Each Credit Party 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 Credit Parties at its address set forth below or in the
applicable Qualified Borrower Joinder Agreement. Each Credit Party 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 Administrative Agent to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against any Credit Party in any other jurisdiction.
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(c) If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in one currency into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so
under applicable law, that the rate of exchange used shall be the spot rate at
which in accordance with normal banking procedures the first currency could be
purchased in New York City with such other currency by the person obtaining such
judgment on the Business Day preceding that on which final judgment is given.
(d) The parties agree, to the fullest extent that they may
effectively do so under applicable law, that the obligations of the Credit
Parties to make payments in any currency of the principal of and interest on the
Loans of any Borrower and any other amounts due from each Credit Party hereunder
to the Administrative Agent as provided herein (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with Section 9.8(c)), in any currency other than the
relevant currency, except to the extent that such tender or recovery shall
result in the actual receipt by the Administrative Agent at its relevant office
on behalf of the Banks of the full amount of the relevant currency expressed to
be payable in respect of the principal of and interest on the Loans and all
other amounts due hereunder (it being assumed for purposes of this clause (i)
that the Administrative Agent will convert any amount tendered or recovered into
the relevant currency on the date of such tender or recovery), (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the relevant currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the relevant currency so
expressed to be payable and (iii) shall not be affected by an unrelated judgment
being obtained for any other sum due under this Agreement.
SECTION 9.9. 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
Administrative Agent and the Credit Parties 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 Administrative 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 9.10. WAIVER OF JURY TRIAL. EACH CREDIT PARTY, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVE 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.
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SECTION 9.11. Survival. All indemnities set forth herein shall
survive the execution and delivery of this Agreement and the other Loan
Documents and the making and repayment of the Loans hereunder.
SECTION 9.12. Intentionally Deleted.
SECTION 9.13. Limitation of Liability. No claim may be made by any
Credit Party or any other Person acting by or through Borrower against the
Administrative Agent or any Bank or the affiliates, directors, officers,
employees, attorneys or agent of any of them for any 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 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 9.14. Recourse Obligation. This Agreement and the
Obligations hereunder are fully recourse to the Credit Parties. Notwithstanding
the foregoing, no recourse under or upon any obligation, covenant, or agreement
contained in this Agreement shall be had against any officer, director,
shareholder or employee of any Credit Party or any general partner of any Credit
party (other than AMB Corporation as the General Partner of AMB LP), in each
case except in the event of fraud or misappropriation of funds on the part of
such officer, director, shareholder or employee or such general partner.
SECTION 9.15. Confidentiality. The Administrative Agent and each
Bank shall use reasonable efforts to assure that information about the Credit
Parties and their Subsidiaries and Investment Affiliates, and the Properties
thereof and their operations, affairs and financial condition, not generally
disclosed to the public, which is furnished to Administrative Agent or any Bank
pursuant to the provisions hereof or any other Loan Document is used only for
the purposes of this Agreement and shall not be divulged to any Person other
than the Administrative Agent, the Banks, and their affiliates and respective
officers, directors, employees and agents who are actively and directly
participating in the evaluation, administration or enforcement of the Loan and
other transactions between such Bank and the Credit Parties, except: (a) to
their attorneys and accountants, (b) in connection with the enforcement of the
rights and exercise of any remedies of the Administrative Agent and the Banks
hereunder and under the other Loan Documents, (c) in connection with
assignments and participations and the solicitation of prospective assignees and
participants referred to in Section 9.6 hereof, who have agreed in writing to be
bound by a confidentiality agreement substantially equivalent to the terms of
this Section 9.15, and (d) as may otherwise be required or requested by any
regulatory authority having jurisdiction over the Administrative Agent or any
Bank or by any applicable law, rule, regulation or judicial process (but only to
the extent not in violation, conflict or inconsistent with the applicable
regulatory requirement, request, summons
106
or subpoena); provided, however, that in the event a Bank receives a summons or
subpoena to disclose confidential information to any party, such Bank shall, if
legally permitted, endeavor to notify AMB LP thereof as soon as possible after
receipt of such request, summons or subpoena and the Credit Parties shall be
afforded an opportunity to seek protective orders, or such other confidential
treatment of such disclosed information, as the Credit Parties and
Administrative Agent may deem reasonable.
SECTION 9.16. Bank's Failure to Fund.
(a) If a Bank does not advance to Administrative Agent such Bank's
Pro Rata Share of a Loan in accordance herewith, then neither Administrative
Agent nor the other Banks shall be required or obligated to fund such Bank's Pro
Rata Share of such Loan.
(b) As used herein, the following terms shall have the meanings set
forth below:
(i) "Defaulting Bank" shall mean any Bank which (x) does not
advance to the Administrative Agent such Bank's Pro Rata Share of a Loan in
accordance herewith for a period of five (5) Business Days after notice of such
failure from Administrative Agent, (y) shall otherwise fail to perform such
Bank's obligations under the Loan Documents (including, without limitation, the
obligation to purchase participations pursuant to Section 2.3) for a period of
five (5) Business Days after notice of such failure from Administrative Agent,
or (z) shall fail to pay the Administrative Agent or any other Bank, as the case
may be, upon demand, such Bank's Pro Rata Share of any costs, expenses or
disbursements incurred or made by the Administrative Agent pursuant to the terms
of the Loan Documents for a period of five (5) Business Days after notice of
such failure from Administrative Agent, and in all cases, such failure is not as
a result of a good faith dispute as to whether such advance is properly required
to be made pursuant to the provisions of this Agreement, or as to whether such
other performance or payment is properly required pursuant to the provisions of
this Agreement.
(ii) "Junior Creditor" means any Defaulting Bank which has not
(x) fully cured each and every default on its part under the Loan Documents and
(y) unconditionally tendered to the Administrative Agent such Defaulting Bank's
Pro Rata Share of all costs, expenses and disbursements required to be paid or
reimbursed pursuant to the terms of the Loan Documents.
(iii) "Payment in Full" means, as of any date, the receipt by
the Banks who are not Junior Creditors of an amount of cash, in Yen, sufficient
to indefeasibly pay in full all Senior Debt.
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(iv) "Senior Debt" means (x) collectively, any and all
indebtedness, obligations and liabilities of any Credit Party to the Banks who
are not Junior Creditors from time to time, whether fixed or contingent, direct
or indirect, joint or several, due or not due, liquidated or unliquidated,
determined or undetermined, arising by contract, operation of law or otherwise,
whether on open account or evidenced by one or more instruments, and whether for
principal, premium, interest (including, without limitation, interest accruing
after the filing of a petition initiating any proceeding referred to in Section
6.1(e) or (f) or Section 6.3(f) or (g)), reimbursement for fees, indemnities,
costs, expenses or otherwise, which arise under, in connection with or in
respect of the Loans or the Loan Documents, and (y) any and all deferrals,
renewals, extensions and refundings of, or amendments, restatements,
rearrangements, modifications or supplements to, any such indebtedness,
obligation or liability.
(v) "Subordinated Debt" means (x) any and all indebted ness,
obligations and liabilities of any Credit Party to one or more Junior Creditors
from time to time, whether fixed or contingent, direct or indirect, joint or
several, due or not due, liquidated or unliquidated, determined or undetermined,
arising by contract, operation of law or otherwise, whether on open account or
evidenced by one or more instruments, and whether for principal, premium,
interest (including, without limitation, interest accruing after the filing of a
petition initiating any proceeding referred to in Section 6.1(e) or (f) or
Section 6.3(f) or (g)), reimbursement for fees, indemnities, costs, expenses or
otherwise, which arise under, in connection with or in respect of the Loans or
the Loan Documents, and (y) any and all deferrals, renewals, extensions and
refundings of, or amendments, restatements, rearrangements, modifications or
supplements to, any such indebtedness, obligation or liability.
(c) Immediately upon a Bank's becoming a Junior Creditor and until
such time as such Bank shall have cured all applicable defaults, no Junior
Creditor shall, prior to Payment in Full of all Senior Debt:
(i) accelerate, demand payment of, sue upon, collect, or
receive any payment upon, in any manner, or satisfy or otherwise discharge, any
Subordinated Debt, whether for principal, interest and otherwise;
(ii) take or enforce any Liens to secure Subordinated Debt or
attach or levy upon any assets of any Credit Party, to enforce any Subordinated
Debt;
(iii) enforce or apply any security for any Subordinated Debt;
or
(iv) incur any debt or liability, or the like, to, or receive
any loan, return of capital, advance, gift or any other property, from, any
Credit Party.
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(d) In the event of:
(i) any insolvency, bankruptcy, receivership, liquidation,
dissolution, reorganization, readjustment, composition or other similar
proceeding relating to any Credit Party;
(ii) any liquidation, dissolution or other winding-up of any
Credit Party, voluntary or involuntary, whether or not involving insolvency,
reorganization or bankruptcy proceedings;
(iii) any assignment by any Credit Party for the benefit of
creditors;
(iv) any sale or other transfer of all or substantially all
assets of any Credit Party; or
(v) any other marshaling of the assets of any Credit Party;
each of the Banks shall first have received Payment in Full of all Senior Debt
before any payment or distribution, whether in cash, securities or other
property, shall be made in respect of or upon any Subordinated Debt. Any payment
or distribution, whether in cash, securities or other property that would
otherwise be payable or deliverable in respect of Subordinated Debt to any
Junior Creditor but for this Agreement shall be paid or delivered directly to
the Administrative Agent for distribution to the Banks in accordance with this
Agreement until Payment in Full of all Senior Debt. If any Junior Creditor
receives any such payment or distribution, it shall promptly pay over or deliver
the same to the Administrative Agent for application in accordance with the
preceding sentence.
(e) Each Junior Creditor shall file in any bankruptcy or other
proceeding of any Credit Party in which the filing of claims is required by law,
all claims relating to Subordinated Debt that such Junior Creditor may have
against any Credit Party and assign to the Banks who are not Junior Creditors
all rights of such Junior Creditor thereunder. If such Junior Creditor does not
file any such claim prior to forty-five (45) days before the expiration of the
time to file such claim, Administrative Agent, as attorney-in-fact for such
Junior Creditor, is hereby irrevocably authorized to do so in the name of such
Junior Creditor or, in Administrative Agent's sole discretion, to assign the
claim to a nominee and to cause proof of claim to be filed in the name of such
nominee. The foregoing power of attorney is coupled with an interest and cannot
be revoked. The Administrative Agent shall, to the exclusion of each Junior
Creditor, have the sole right, subject to Section 9.5 hereof, to accept or
reject any plan proposed in any such proceeding and to take any other action
that a party filing a claim is entitled to take. In all such cases, whether in
administration, bankruptcy or otherwise, the Person or Persons authorized to pay
such claim shall pay to Administrative Agent the amount payable on such claim
and, to the full extent
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necessary for that purpose, each Junior Creditor hereby transfers and assigns to
the Administrative Agent all of the Junior Creditor's rights to any such
payments or distributions to which Junior Creditor would otherwise be entitled.
(f) (i) If any payment or distribution of any character or any
security, whether in cash, securities or other property, shall be received by
any Junior Creditor in contravention of any of the terms hereof, such payment or
distribution or security shall be received in trust for the benefit of, and
shall promptly be paid over or delivered and transferred to, Administrative
Agent for application to the payment of all Senior Debt, to the extent necessary
to achieve Payment in Full. In the event of the failure of any Junior Creditor
to endorse or assign any such payment, distribution or security, Administrative
Agent is hereby irrevocably authorized to endorse or assign the same as
attorney-in-fact for such Junior Creditor.
(ii) Each Junior Creditor shall take such action (including,
without limitation, the execution and filing of a financing statement with
respect to this Agreement and the execution, verification, delivery and filing
of proofs of claim, consents, assignments or other instructions that
Administrative Agent may require from time to time in order to prove or realize
upon any rights or claims pertaining to Subordinated Debt or to effectuate the
full benefit of the subordination contained herein) as may, in Administrative
Agent's sole and absolute discretion, be necessary or desirable to assure the
effectiveness of the subordination effected by this Agreement.
(g) (i) Each Bank that becomes a Junior Creditor understands and
acknowledges by its execution hereof that each other Bank is entering into this
Agreement and the Loan Documents in reliance upon the absolute subordination in
right of payment and in time of payment of Subordinated Debt to Senior Debt as
set forth herein.
(ii) Only upon the Payment in Full of all Senior Debt shall
any Junior Creditor be subrogated to any remaining rights of the Banks which are
not Defaulting Banks to receive payments or distributions of assets of any
Borrower made on or applicable to any Senior Debt.
(iii) Each Junior Creditor agrees that it will deliver all
instruments or other writings evidencing any Subordinated Debt held by it to
Administrative Agent, promptly after request therefor by the Administrative
Agent.
(iv) No Junior Creditor may at any time sell, assign or
otherwise transfer any Subordinated Debt, or any portion thereof, including,
without limitation, the granting of any Lien thereon, unless and until
satisfaction of the requirements of Section 9.6 above and the proposed
transferee shall have assumed in writing the obligation of the Junior Creditor
to the Banks under this Agreement, in a form acceptable to the Administrative
Agent.
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(v) If any of the Senior Debt, should be invalidated, avoided
or set aside, the subordination provided for herein nevertheless shall continue
in full force and effect and, as between the Banks which are not Defaulting
Banks and all Junior Creditors, shall be and be deemed to remain in full force
and effect.
(vi) Each Junior Creditor hereby irrevocably waives, in
respect of Subordinated Debt, all rights (x) under Sections 361 through 365,
502(e) and 509 of the Bankruptcy Code (or any similar sections hereafter in
effect under Japanese national or local law or any other Federal or state laws
or legal or equitable principles relating to bankruptcy, insolvency,
reorganizations, liquidations or otherwise for the relief of debtors or
protection of creditors), and (y) to seek or obtain conversion to a different
type of proceeding or to seek or obtain dismissal of a proceeding, in each case
in relation to a bankruptcy, reorganization, insolvency or other proceeding
under similar laws with respect to any Credit Party. Without limiting the
generality of the foregoing, each Junior Creditor hereby specifically waives (A)
the right to seek to give credit (secured or otherwise) to any Credit Party in
any way under Section 364 of the Bankruptcy Code (or any similar sections
hereafter in effect under Japanese national or local law or any other Federal or
state laws or legal or equitable principles relating to bankruptcy, insolvency,
reorganizations, liquidations or otherwise for the relief of debtors or
protection of creditors) unless the same is subordinated in all respects to
Senior Debt in a manner acceptable to Administrative Agent in its sole and
absolute discretion and (B) the right to receive any collateral security
(including, without limitation, any "super priority" or equal or "priming" or
replacement Lien) for any Subordinated Debt unless the Banks which are not
Defaulting Banks have received a senior position acceptable to the Banks in
their sole and absolute discretion to secure all Senior Debt (in the same
collateral to the extent collateral is involved).
(h) (i) In addition to and not in limitation of the subordination
effected by this Section 9.16, the Administrative Agent and each of the Banks
which are not Defaulting Banks may in their respective sole and absolute
discretion, also exercise any and all other rights and remedies available at law
or in equity in respect of a Defaulting Bank; and
(ii) The Administrative Agent shall give each of the Banks
notice of the occurrence of a default under this Section 9.16 by a Defaulting
Bank and if the Administrative Agent and/or one or more of the other Banks
shall, at their option, fund any amounts required to be paid or advanced by a
Defaulting Bank, the other Banks who have elected not to fund any portion of
such amounts shall not be liable for any reimbursements to the Administrative
Agent and/or to such other funding Banks.
(i) Notwithstanding anything to the contrary contained or implied
herein, a Defaulting Bank shall not be entitled to vote on any matter as to
which a
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vote by the Banks is required hereunder, including, without limitation, any
actions or consents on the part of the Administrative Agent as to which the
approval or consent of all the Banks or the Required Banks or Majority Banks is
required under Article VIII, Section 9.5 or elsewhere, so long as such Bank is a
Defaulting Bank; provided, however, that in the case of any vote requiring the
unanimous consent of the Banks, if all the Banks other than the Defaulting Bank
shall have voted in accordance with each other, then the Defaulting Bank shall
be deemed to have voted in accordance with such Banks.
(j) Each of the Administrative Agent and any one or more of the
Banks which are not Defaulting Banks may, at their respective option, (i)
advance to any Borrower such Bank's Pro Rata Share of the Loans not advanced by
a Defaulting Bank in accordance with the Loan Documents, or (ii) pay to the
Administrative Agent such Bank's Pro Rata Share of any costs, expenses or
disbursements incurred or made by the Administrative Agent pursuant to the terms
of this Agreement not theretofore paid by a Defaulting Bank. Immediately upon
the making of any such advance by the Administrative Agent or any one of the
Banks, such Bank's Pro Rata Share and the Pro Rata Share of the Defaulting Bank
shall be recalculated to reflect such advance. All payments, repayments and
other disbursements of funds by the Administrative Agent to the Banks shall
thereupon and, at all times thereafter be made in accordance with such Bank's
recalculated Pro Rata Share unless and until a Defaulting Bank shall fully cure
all defaults on the part of such Defaulting Bank under the Loan Documents or
otherwise existing in respect of the Loans or this Agreement, at which time the
Pro Rata Share of the Bank(s) which advanced sums on behalf of the Defaulting
Bank and of the Defaulting Bank shall be restored to their original percentages.
SECTION 9.17. Banks' ERISA Covenant. Each Bank, by its signature
hereto or on the applicable Transfer Supplement, hereby agrees (a) that on the
date any Loan is disbursed hereunder no portion of such Bank's Pro Rata Share of
such Loan will constitute "assets" within the meaning of 29 C.F.R. Section
2510.3-101 of an "employee benefit plan" within the meaning of Section 3(3) of
ERISA or a "plan" within the meaning of Section 4975(e)(1) of the Code, and (b)
that following such date such Bank shall not allocate such Bank's Pro Rata Share
of any Loan to an account of such Bank if such allocation (i) by itself would
cause such Pro Rata Share of such Loan to then constitute "assets" (within the
meaning of 29 C.F.R. Section 2510.3- 101) of an "employee benefit plan" within
the meaning of Section 3(3) of ERISA or a "plan" within the meaning of Section
4975(e)(1) of the Code and (ii) by itself would cause such Loan to constitute a
prohibited transaction under ERISA or the Code (which is not exempt from the
restrictions of Section 406 of ERISA and Section 4975 of the Code and the taxes
and penalties imposed by Section 4975 of the Code and Section 502(i) of ERISA)
or Administrative Agent or any Bank being deemed in violation of Section 404 of
ERISA.
112
SECTION 9.18. Bank Ceasing to be a Qualified Institutional
Investor.
(a) Each Bank agrees that it shall immediately provide notice to the
Administrative Agent and AMB LP upon its receipt of knowledge that it will cease
to be a Qualified Institutional Investor pursuant to the applicable laws of
Japan.
(b) In the event that during the Term any Bank ceases to be a
Qualified Institutional Investor (such Bank, the "Non-QII Bank"), (i) the
Non-QII Bank shall immediately provide notice thereof to the Administrative
Agent and AMB LP (to the extent the Non-QII Bank has not already provided such
notice pursuant to 9.18(a) above) and (ii) regardless of whether the Non-QII
Bank has actually delivered any such notice to the Administrative Agent and/or
AMB LP, the Administrative Agent shall have the immediate right, and shall use
best efforts, to cause the Non-QII Bank to assign to a Qualified Institution all
of the Non-QII Bank's rights and obligations under this Agreement, the Notes and
the other Loan Documents in accordance with Section 9.6(c), subject to the
terms and conditions of Article 9.6, as applicable.
(c) In the event the Administrative Agent is unable to cause the
assignment of the Non-QII Bank's rights and obligations under this Agreement,
the Notes and the other Loan Documents, and provided that the total amount of
Commitments outstanding with respect all of the Banks other than the Non-QII
Bank (such Banks, the "QII Banks") exceeds the total outstanding Loans of the
Non-QII Bank as of such date, each of the Borrowers shall be deemed to have made
a Base Rate Borrowing for the amount of such outstanding Commitments necessary
to pay in full the total outstanding Loans of the Non-QII Bank (and each of the
Borrowers shall be deemed to have timely given a Notice of Borrowing pursuant to
Section 2.2 and all other conditions to such Borrowing shall be deemed waived or
satisfied), and the amount of such Borrowings shall be allocated prorata among
the Borrowers. Such Borrowings shall be used to pay the Non-QII Bank's Loans in
full. Upon payment in full of the Loans of the Non-QII Bank, the Non-QII Bank
shall cease to be a Bank hereunder.
(d) In the event the Administrative Agent is unable to cause the
assignment of the Non-QII Bank's rights and obligations under this Agreement,
the Notes and the other Loan Documents, and the total outstanding Loans of the
Non-QII Bank exceed the total amount of Commitments outstanding with respect all
of the QII Banks as of such date, each of the Borrowers shall be deemed to have
made a Base Rate Borrowing for the total amount of such outstanding Commitments
(and each of the Borrowers shall be deemed to have timely given a Notice of
Borrowing pursuant to Section 2.2 and all other conditions to such Borrowing
shall be deemed waived or satisfied) and the amount of such Borrowings shall be
allocated prorata among the Borrowers. Such Borrowings shall be applied toward
the payment of the
113
Non-QII Bank's Loans and AMB LP shall pay the balance of the Non-QII Bank's
Loans to the extent AMB LP has funds available. To the extent AMB LP does not
have funds available to pay the balance of the Non-QII Bank's Loans, the
Administrative Agent and the Banks shall use reasonable efforts in accordance
with applicable laws to reallocate among the Borrowers the remaining outstanding
Loans of the Non-QII Bank in such a manner as to minimize the tax liability to
the Credit Parties. Upon payment in full of the Loans of the Non-QII Bank, the
Non-QII Bank shall cease to be a Bank hereunder.
(e) Notwithstanding anything to the contrary contained herein, AMB
LP shall have the right at any time to pay in full the Loans of any Non-QII
Bank.
SECTION 9.19. Intentionally Deleted.
SECTION 9.20. Intentionally Deleted.
SECTION 9.21. USA PATRIOT ACT. Each Bank hereby notifies each
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required
to obtain, verify and record information that identifies the Credit Parties,
which information includes the name and address of each Credit Party and other
information that will allow such Bank to identify each Credit Party in
accordance with the Act.
SECTION 9.22. OFAC List.
(a) The Guarantors certify to the Administrative Agent and each Bank
that neither they nor any Borrower has been designated as a "specially
designated national and blocked person" on the most current list published by
the U.S. Treasury Department Office of Foreign Assets Control at its official
website, http://www.treas.gov/ofac/t11sdn.pdf or at any replacement website or
other replacement official publication of such list (the "OFAC List"). Upon the
request of Administrative Agent given at reasonable intervals, each Guarantor
will update the foregoing information.
(b) Each of the Administrative Agent and each Bank certify to the
Guarantors and each Borrower that it has not been designated as a "specially
designated national and blocked person" on the OFAC list. Upon the request of
any Guarantor or Borrower given at reasonable intervals, the Administrative
Agent or any Bank will update the foregoing information.
114
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.
INITIAL BORROWER:
AMB JAPAN FINANCE Y.K., a Japan yugen kaisha
By: /s/ Michael A. Coke
-------------------------------------
Name: Michael A. Coke
Title: Director
[SEAL]
GUARANTORS:
AMB PROPERTY, L.P., a Delaware limited partnership
By: AMB PROPERTY CORPORATION, a Maryland
corporation, its sole general partner
By: /s/ Michael A. Coke
---------------------------------------
Name: Michael A. Coke
Title: Executive Vice President and Chief
Financial Officer
AMB PROPERTY CORPORATION, a Maryland
corporation
By: /s/ Michael A. Coke
--------------------------------------------
Name: Michael A. Coke
Title: Executive Vice President and Chief
Financial Officer
SUMITOMO MITSUI BANKING CORPORATION, as
Administrative Agent, Sole Lead Arranger,
Bookmanager, and a Bank
By: /s/ Shigeru Ishida
-------------------------------------------
Name: Shigeru Ishida
Title: General Manager: Global Client
Business Department
TOTAL COMMITMENT: JPY3,000,000,000
MIZUHO CORPORATE BANK, LTD., as
Syndication Agent and a Bank
By: /s/ Yuichi Hirashima
---------------------------------------------
Name: Yuichi Hirashima
Title: Deputy General Manager
TOTAL COMMITMENT: JPY3,000,000,000
SHINSEI BANK, as Documentation Agent and
a Bank
By: /s/ Hideaki Ichikawa
--------------------------------------------
Name: Hideaki Ichikawa
Title: RM Business Head III
General Manager, Corporate Banking Business
Division VIII
TOTAL COMMITMENT: JPY3,000,000,000
UFJ BANK, as Documentation Agent and a Bank
By: /s/ Yoichi Orikasa
--------------------------------------------
Name: Yoichi Orikasa
Title: Deputy General Manager
TOTAL COMMITMENT: JPY3,000,000,000
INTERNATIONAL COMMERCIAL BANK OF
CHINA, as Senior Managing Agent and a Bank
By: /s/ Nae-Yee Lung
--------------------------------------------
Name: Nae-Yee Lung
Title: SVP & General Manager
TOTAL COMMITMENT: JPY2,500,000,000
BANK OF CHINA, as Senior Managing Agent and
a Bank
By: /s/ Sang Yue
--------------------------------------------
Name: Sang Yue
Title: Assistant General Manager
TOTAL COMMITMENT: JPY2,500,000,000
THE BANK OF NOVA SCOTIA, as Managing Agent and a
Bank
By: /s/ John Chan
--------------------------------------------
Name: John Chan
Title: Manager Administration-Japan
TOTAL COMMITMENT: JPY2,000,000,000
OVERSEA-CHINESE BANKING CORPORATION, as Managing
Agent and a Bank
By: /s/ Ong Sing Yik
--------------------------------------------
Name: ONG SING YIK
Title: GENERAL MANAGER TOKYO BRANCH
TOTAL COMMITMENT: JPY2,000,000,000
THE NORINCHUKIN BANK, NEW YORK
BRANCH, as a Bank
By: /s/ Fumiaki Ono
--------------------------------------------
Name: Fumiaki Ono
Title: General Manager
TOTAL COMMITMENT: JPY1,000,000,000
THE SUMITOMO TRUST & BANKING CO.,
LTD., NEW YORK BRANCH, as a Bank
By: /s/ Masaya Noda
--------------------------------------------
Name: Masaya Noda
Title: Vice President and Manager
TOTAL COMMITMENT: JPY1,000,000,000
CHINA CONSTRUCTION BANK, as a Bank
By: /s/ Wei Li
--------------------------------------------
Name: Wei Li
Title: General Manager
TOTAL COMMITMENT: JPY1,000,000,000