EXHIBIT 10.1
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CREDIT FACILITY AGREEMENT
dated as of November 24, 2004
among
AMB TOKAI TMK., as 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
SECTION 1.1. Definitions.......................................................................... 1
SECTION 1.2. Accounting Terms and Determinations.................................................. 28
SECTION 1.3. Types of Borrowings.................................................................. 28
ARTICLE II THE CREDITS
SECTION 2.1. Commitments to Lend.................................................................. 29
SECTION 2.2. Notice of Borrowing.................................................................. 29
SECTION 2.3. Base Rate Loans, Agent Rate Loans and TIBOR Loans.................................... 29
SECTION 2.4. Intentionally Deleted................................................................ 30
SECTION 2.5. Notice to Banks; Funding of Loans.................................................... 30
SECTION 2.6. Intentionally Deleted................................................................ 31
SECTION 2.7. Method of Electing Interest Rates.................................................... 31
(iii) the next Interest Period Date;....................................................... 31
SECTION 2.8. Interest Rates....................................................................... 31
SECTION 2.9. Fees................................................................................. 32
SECTION 2.10. Maturity Date........................................................................ 33
SECTION 2.11. Mandatory Prepayment................................................................. 33
SECTION 2.12. Optional Prepayments................................................................. 33
SECTION 2.13. Security............................................................................. 34
SECTION 2.14. General Provisions as to Payments.................................................... 35
SECTION 2.15. Funding Losses....................................................................... 35
SECTION 2.16. Computation of Interest and Fees..................................................... 36
SECTION 2.17. Use of Proceeds...................................................................... 36
ARTICLE III CONDITIONS
SECTION 3.1. Closing.............................................................................. 36
SECTION 3.2. Borrowings........................................................................... 38
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties by the Guarantors..................................... 39
SECTION 4.2. Representations and Warranties by Borrower........................................... 45
ARTICLE V AFFIRMATIVE AND NEGATIVE COVENANTS
SECTION 5.1. Information.......................................................................... 47
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SECTION 5.2. Payment of Obligations............................................................... 50
SECTION 5.3. Maintenance of Property; Insurance................................................... 50
SECTION 5.4. Maintenance of Existence............................................................. 50
SECTION 5.5. Compliance with Laws................................................................. 50
SECTION 5.6. Inspection of Property, Books and Records............................................ 51
SECTION 5.7. Existence............................................................................ 51
SECTION 5.8. Financial Covenants.................................................................. 51
SECTION 5.9. Restriction on Fundamental Changes................................................... 53
SECTION 5.10. Changes in Business.................................................................. 54
SECTION 5.11. AMB Corporation Status............................................................... 54
SECTION 5.12. Other Indebtedness................................................................... 56
SECTION 5.13. Forward Equity Contracts............................................................. 56
SECTION 5.14. Capital Funding Loans................................................................ 56
SECTION 5.15. Construction Progress Reports........................................................ 58
ARTICLE VI DEFAULTS
SECTION 6.1. Events of Default.................................................................... 58
SECTION 6.2. Rights and Remedies with Respect to Event of Default................................. 62
SECTION 6.3. Intentionally Deleted................................................................ 62
SECTION 6.4. Enforcement of Rights and Remedies................................................... 63
SECTION 6.5. Notice of Default.................................................................... 63
SECTION 6.6. Intentionally Deleted................................................................ 63
SECTION 6.7. Distribution of Proceeds after Default............................................... 63
ARTICLE VII THE ADMINISTRATIVE AGENT
SECTION 7.1. Appointment and Authorization........................................................ 63
SECTION 7.2. Agency and Affiliates................................................................ 64
SECTION 7.3. Action by Administrative Agent....................................................... 64
SECTION 7.4. Consultation with Experts............................................................ 64
SECTION 7.5. Liability of Administrative Agent.................................................... 64
SECTION 7.6. Indemnification...................................................................... 65
SECTION 7.7. Credit Decision...................................................................... 65
SECTION 7.8. Successor Agent...................................................................... 65
SECTION 7.9. Consents and Approvals............................................................... 66
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SECTION 7.10. Cooperation with Organizational Documents and Asset Liquidation Plan Amendments...... 66
ARTICLE VIII CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair............................. 67
SECTION 8.2. Illegality........................................................................... 67
SECTION 8.3. Increased Cost and Reduced Return.................................................... 68
SECTION 8.4. Taxes................................................................................ 69
SECTION 8.5. Base Rate Loans Substituted for Affected TIBOR Loans................................. 72
ARTICLE IX MISCELLANEOUS
SECTION 9.1. Notices.............................................................................. 73
SECTION 9.2. No Waivers........................................................................... 73
SECTION 9.3. Expenses; Indemnification............................................................ 73
SECTION 9.4. Sharing of Set-Offs.................................................................. 75
SECTION 9.5. Amendments and Waivers............................................................... 75
SECTION 9.6. Successors and Assigns............................................................... 77
SECTION 9.7. Collateral........................................................................... 78
SECTION 9.8. Governing Law; Submission to Jurisdiction; Judgment Currency......................... 79
SECTION 9.9. Counterparts; Integration; Effectiveness............................................. 80
SECTION 9.10. WAIVER OF JURY TRIAL................................................................. 80
SECTION 9.11. Survival............................................................................. 80
SECTION 9.12. Intentionally Deleted................................................................ 80
SECTION 9.13. Limitation of Liability.............................................................. 80
SECTION 9.14. Recourse Obligation.................................................................. 81
SECTION 9.15. Confidentiality...................................................................... 81
SECTION 9.16. Bank's Failure to Fund............................................................... 81
SECTION 9.17. Banks' ERISA Covenant................................................................ 86
SECTION 9.18. Bank Ceasing to be a Qualified Institutional Investor................................ 87
SECTION 9.19. Release.............................................................................. 88
SECTION 9.20. English Language..................................................................... 88
SECTION 9.21. USA PATRIOT ACT...................................................................... 88
SECTION 9.22. OFAC List............................................................................ 88
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SCHEDULE 1.1(b) Initial Qualifying Unencumbered Properties
SCHEDULE 4.1 (d) Disclosure of Additional Material Indebtedness
SCHEDULE 4.1(f) Guarantor CBA and ERISA Plans
SCHEDULE 5.11(c)(1) AMB Corporation Investments
SCHEDULE 5.11(c)(2) AMB Corporation Properties
EXHIBIT A Description of Tokai Property
EXHIBIT B-1 Form of Mortgage
EXHIBIT B-2 Form of Additional Mortgage
EXHIBIT C Form of Consent
EXHIBIT D Notices
EXHIBIT E Form of Transfer Supplement
EXHIBIT F Organizational and Structural Chart
EXHIBIT G Form of Notice of Borrowing
EXHIBIT H Form of Notice of Interest Period Election
EXHIBIT I Form of Notice of Prepayment
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CREDIT FACILITY AGREEMENT
CREDIT FACILITY AGREEMENT (this "Agreement") dated as of November 24, 2004
among AMB TOKAI TMK, as Borrower ("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:
"Additional Mortgage" has the meaning set forth in Section 2.13(d).
"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 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 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.
"Agent Rate" shall mean the interest rate which the Administrative
Agent offers to leading banks in the Tokyo interbank market deposits in Yen for
a period comparable to the applicable Interest Period at or about 11:00 am
(Tokyo time) on the second Tokyo Business Day before the first day of the
applicable Interest Period.
"Agent Rate Loan" means a Committed Loan to be made by a Bank as a
Agent Rate Loan in accordance with the provisions of this Agreement.
"Agreement" shall mean this Credit Facility 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.
"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.
Range of
AMB LP's
Credit Rating Applicable
(S&P/Moody's Fee Percentage
Ratings) (% per annum)
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Non-Investment
Grade 0.35
BBB-/Baa3 0.25
BBB/Baa2 0.20
BBB+/Baa1 0.20
A-/A3 or better 0.15
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"Applicable Interest Rate" means (i) with respect to any Fixed Rate
Indebtedness, the fixed interest rate applicable to such Fixed Rate Indebtedness
at the time in question, and (ii) with respect to any Floating Rate
Indebtedness, either (x) the rate at which the interest rate applicable to such
Floating Rate Indebtedness is actually capped (or fixed pursuant to an interest
rate hedging device), at the time of calculation, if either Guarantor has
entered into an interest rate cap agreement or other interest rate hedging
device with respect thereto or (y) if no Guarantor has entered into an interest
rate cap agreement or other interest rate hedging device with respect to such
Floating Rate Indebtedness, the greater of (A) the rate at which the interest
rate applicable to such Floating Rate Indebtedness could be fixed for the
remaining term of such Floating Rate Indebtedness, at the time of calculation,
by a Guarantor entering into any unsecured interest rate hedging device either
not requiring an upfront payment or if requiring an upfront payment, such
upfront payment shall be amortized over the term of such device and included in
the calculation of the interest rate (or, if such rate is incapable of being
fixed by entering into an unsecured interest rate hedging device at the time of
calculation, a fixed rate equivalent reasonably determined by Administrative
Agent) or (B) the floating rate applicable to such Floating Rate Indebtedness at
the time in question.
"Applicable Margin" means with respect to each Loan, the respective
percentages per annum determined, at any time, based on the range into which AMB
LP's Credit Rating then falls, in accordance with the table set forth below. Any
change in AMB LP's Credit Rating causing it to move to a different range on the
table shall effect an immediate change in the Applicable Margin. AMB LP shall
have not less than 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)
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Non-Invest-
ment Grade 0.25 1.15
BBB-/Baa3 0.00 0.85
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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.
"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.
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"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 AMB Tokai TMK, a Japan tokutei mokuteki kaisha.
"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 customarily
closed.
"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 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
5
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 Perfection Event" means: (a) the occurrence and
continuance of an Event of Default; or (b) the existence of a particular event
or condition, the occurrence and continuance of which either Majority Banks or,
at its discretion, Administrative Agent reasonably determines will have a
Material Adverse Effect if there is any delay by Administrative Agent in filing
a permanent registered (hon-touki) Mortgage with respect to the Tokai Property.
"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 in connection with an assignment to an Assignee and
increased in connection with an assignment from an Assignor. As of the Closing
Date, the aggregate Commitment is Twenty Billion Yen (JPY20,000,000,000).
"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; provided that, if any such loan or loans (or portions thereof) are combined
or subdivided in accordance with the terms hereof, 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.
"Consents" has the meaning set forth in Section 7.10.
6
"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 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
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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 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
8
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 condition or event which with the giving of
notice or lapse of time or both would, unless cured or waived, become an Event
of Default.
"Default Rate" has the meaning set forth in Section 2.8(d).
"Development Activity" means (a) the development and construction of
industrial or retail facilities by AMB LP or any of its Consolidated
Subsidiaries or Joint 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
9
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 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.
10
"Event of Default" shall have the meaning set forth in Section 6.1.
"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.
"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
11
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.
"GAAP" means generally accepted accounting principles in the United
States 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.
"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 of Payment, 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
Borrower's debt or obligation to the Banks.
"Governmental Authority" means any nation, government, prefecture,
state, city, municipality or other political subdivision thereof or entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Governmental Rules" means all applicable statutes, laws, rules,
codes, ordinances, decisions, regulations, permits, certificates and orders of
any Governmental Authority now or hereafter in effect, in each case, as amended
or otherwise modified from time to time and any interpretation thereof by any
competent Governmental Authority, including, without limitation, any judicial or
administrative order, consent, decree, settlement agreement or judgment.
12
"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, (ii) all
Committed Loans which are Agent Rate Loans at such time or (iii) 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.
"Improvements" means all foundations, structures, fixtures,
additions, enlargements, extensions, modifications, repairs, replacements and
improvements of every kind or nature now or hereafter located on or incorporated
into the Tokai Property.
"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 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).
"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
13
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).
"Interest Period" means, with respect to each Borrowing, (i) the
period commencing on the date of such Borrowing and ending on but excluding the
immediately following Interest Period Date and then (ii) each successive period
thereafter commencing on the immediately preceding Interest Period Date and
ending on but excluding the next Interest Period Date, which shall be 1, 3, or 6
month(s) after the immediately preceding Interest Period Date;
provided, in any such case, 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;
(c) no Interest Period may end later than the Maturity Date; and
(d) if the Maturity Date is within 1 month from the immediately
preceding Interest Period Date, any Interest Period commencing on or after
such Interest Period Date shall end on the Maturity Date, and in such
case, the term of
14
the Interest Period specified on the Notice of Borrowing or the Notice of
Interest Period Election, if applicable, shall be "Other" for such
Interest Period.
"Interest Period Date" means, in respect of each Borrowing, (i) the
date specified by Borrower as the first Interest Period Date in the Notice of
Borrowing for such Borrowing, and then (ii) the dates thereafter specified by
Borrower as Interest Period Dates in the Notice of Borrowing for such Borrowing,
each of which shall be 1, 3 or 6 month(s) from the prior Interest Period Date;
provided, however, if Borrower delivers a Notice of Interest Period Election for
such Borrowing, the dates thereafter specified by Borrower as Interest Period
Dates in such Notice of Interest Period Election.
"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.
"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
15
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 Borrower and the Administrative
Agent.
"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 Guaranty and the
Mortgages.
"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 at least 51% of the aggregate unpaid principal amount of the
Loans.
16
"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,
Borrower and Guarantors' 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.
"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 October 31, 2006, 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" means, collectively, those certain mortgages (ne teito
ken) with respect to the Tokai Property, dated as of the Closing Date, executed
by Borrower in favor of each Bank, each to be substantially in the form of
Exhibit B-1 attached hereto.
"Mortgage Perfection Documents" shall have the meaning set forth in
Section 2.13(b).
"Movables" means all machinery, equipment, fittings, apparatus,
appliances, furniture, furnishings, tools and any other personal property
(dosan) of every kind and nature whatsoever owned by Borrower, or in which
Borrower has or shall have an ownership interest (shoyu-ken), now or hereafter
located upon or in and used in connection with the Tokai Property.
"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.
17
"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 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.
"Notice of Borrowing" means a notice from Borrower in accordance
with Section 2.2 and substantially in the form of Exhibit G attached hereto.
"Notice of Interest Period Election" means a notice from Borrower in
accordance with Section 2.7 and substantially in the form of Exhibit H attached
hereto.
"Notice of Prepayment" means a notice from Borrower in accordance
with Section 2.12 (a) and substantially in the form of Exhibit I attached
hereto.
18
"Obligations" means all obligations, liabilities, indemnity
obligations and Indebtedness of every nature of the Credit Parties from time to
time owing to 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 such Lien does not
exceed the purchase price of such equipment, (ii) any such
19
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.
"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
20
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.
"Purchase and Sale Agreement" means that certain Purchase and Sale
Agreement, dated as of July 1, 2004, between Tokyo Metropolitan Government and
Borrower relating to the Tokai Property.
"Qualified Institution" means a Bank, or one or more banks, finance
companies, insurance or other financial institutions which (A) unless waived by
Borrower, 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.
"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
21
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,
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).
"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 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,
22
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 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.
"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.
"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 Account" means the ordinary deposit account (Account
No. 4608393, Account Holder: AMB Tokai TMK) of Borrower held at Sumitomo Mitsui
Banking Corporation, Head Office, or such other branch of Sumitomo Mitsui
Banking Corporation as Syndication Agent may approve in its sole and absolute
discretion.
"Syndication Agent" means Sumitomo Mitsui Banking Corporation, in
its capacity as syndication agent hereunder and its permitted successors in such
capacity in accordance with the terms of this Agreement.
"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.
23
"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 (Tokyo time) on the second Tokyo
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 (Tokyo time) on the second Tokyo 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 TIBOR Alternative Rate.
"TIBOR Alternative Rate" means (a) if at least two quotations for
Yen deposits for a period comparable to the applicable Interest Period are
provided to the Administrative Agent from the reference banks of "Reuters Screen
TIBM" under the caption "Average of 10 Banks" on the Reuters Service ("Reference
Banks") in Tokyo at or about 11:00 am (Tokyo time) on the second Tokyo Business
Day before the first day of the applicable Interest Period, the arithmetic mean
of the quotations, (b) if fewer than two quotations for Yen deposits for a
period comparable to the applicable Interest Period are provided to the
Administrative Agent from Reference Banks in Tokyo at or about
24
11:00 am (Tokyo time) on the second Tokyo Business Day before the first day of
the applicable Interest Period, the arithmetic mean of the rates quoted by major
banks in Tokyo, selected by the Administrative Agent.
"TIBOR Loan" means a Committed Loan to be made by a Bank as a TIBOR
Loan in accordance with the provisions of this Agreement.
"Tiered Non-US Property Owner" has the meaning set forth in Section
5.14.
"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).
"TMK Refinancing" means any issuance by Borrower of specified bonds
(tokutei shasai) under the TMK Law and/or any borrowing by Borrower of a
specified purpose loan (tokutei mokuteki kariire), other than any Loan under
this Agreement, under the TMK Law.
"Tokai Property" means collectively the land and the buildings as
described on Exhibit A attached hereto, together with all Movables and
Improvements thereon.
"Tokyo Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Tokyo, Japan are customarily closed.
"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
25
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 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 disregarded in determining Unencumbered Asset Value, (dd) the portion of
the aggregate amount of the
26
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.
"United States" means the United States of America, including the
fifty states and the District of Columbia.
27
"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.
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to 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).
28
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 specified purpose
loans (tokutei mokuteki kariire) to 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 shall not
exceed the amount of its Commitment. Each Borrowing outstanding under this
Section 2.1 shall be in an aggregate principal amount of JPY100,000,000 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)), 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 exceed JPY20,000,000,000 (the "Facility Amount"). Any amount borrowed
and repaid in respect of the Loan may not be reborrowed.
SECTION 2.2. Notice of Borrowing. With respect to any Committed
Borrowing, Borrower shall give Administrative Agent notice not later than 10:00
A.M. (Tokyo Time) the third (3rd) Tokyo Business Day before each Borrowing,
specifying:
(i) the date of such Borrowing, which shall be a Tokyo
Business Day,
(ii) the aggregate amount of such Borrowing,
(iii) the first Interest Period Date for such Borrowing, which
shall be a Business Day within 6 months from the date of such Borrowing;
(iv) the subsequent Interest Period Dates for such Borrowing,
which may be amended by a Notice of Interest Period Election delivered in
accordance with the terms hereof;
(v) whether the Interest Period applicable to such Borrowing
shall be 1 month, 3 months, 6 months or such other period less than one
month, subject to the provisions of the definition of Interest Period;
(vi) whether the Loans comprising such Borrowing are to be
Base Rate Loans, Agent Rate Loans or TIBOR Loans for the first Interest
Period; and
(vii) a certification that no Default or Event of Default has
occurred and is continuing.
SECTION 2.3. Base Rate Loans, Agent Rate Loans and TIBOR Loans.
(a) If an Interest Period for any Borrowing shall not be
comparable to the TIBOR periods of 1, 3 or 6 month(s), the Loans comprising such
Borrowing shall be
29
Base Rate Loans until the immediately following Interest Period Date for such
Borrowing (or in the case of the final Interest Period, until the Maturity
Date); provided, however, that if the Interest Period is the first Interest
Period for such Borrowing and if Borrower specified the Agent Rate for such
Interest Period in its Notice of Borrowing, the Loans comprising such Borrowing
shall be Agent Rate Loans until the immediately following Interest Period Date.
(b) Except as set forth in Section 2.3(a) and in Section 8, all
Loans shall be TIBOR Loans.
(c) If the Maturity Date for any Borrowing is not an Interest
Period Date, the Loans comprising such Borrowing shall convert to Base Rate
Loans on the Interest Period Date immediately preceding the Maturity Date.
SECTION 2.4. Intentionally Deleted.
SECTION 2.5. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing from 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 Borrower) and such Notice of Borrowing shall
not thereafter be revocable by Borrower, unless Borrower shall pay any
applicable expenses pursuant to Section 2.15.
(b) Not later than 12:00 p.m. (Tokyo time) on the date of each
Committed Borrowing as indicated in the applicable Notice of Borrowing, each
Bank shall 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.
(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 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 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
30
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, 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 available to 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(c) shall be deemed to reduce the Commitment of any Bank or in any way affect
the rights of 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 Borrower in Yen immediately available by
deposit into the Syndication Account on the date set forth in the applicable
Notice of Borrowing.
SECTION 2.6. Intentionally Deleted.
SECTION 2.7. Method of Electing Interest Rates. Borrower shall be
entitled to change the Interest Period and Interest Period Dates, subject to the
provisions set forth in the definitions of "Interest Period" and "Interest
Period Date", specified in the Notice of Borrowing for a Borrowing, with effect
from any Interest Period Date for such Borrowing, by delivering a notice (a
"Notice of Interest Period Election") to the Administrative Agent not later than
10:00 A.M. (Tokyo Time) the third (3rd) Tokyo Business Day prior to such
Interest Period Date, specifying:
(i) the original date of such Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the next Interest Period Date;
(iv) the new Interest Period commencing on such next Interest
Period Date; and
(v) the new Interest Period Dates following such next Interest
Period Date.
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 on the immediately following
Interest Period Date, at a rate per annum equal to sum of the Base Rate for such
day plus the Applicable Margin for Base Rate Loans.
(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
31
annum equal to the sum of the Applicable Margin for TIBOR Loans plus TIBOR for
such Interest Period.
(c) Each Agent 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 on the immediately following
Interest Period Date, at a rate per annum equal to sum of the Agent Rate for
such Interest Period plus the Applicable Margin for TIBOR Loans.
(d) In the event that, and for so long as, any Event of Default
shall have occurred and be continuing, the outstanding principal amount of the
Loans, and, to the extent permitted by 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").
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to Borrower and the Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of demonstrable error.
(f) Interest on all Loans shall be payable on the last Business
Day of the applicable Interest Period.
SECTION 2.9. Fees.
(a) Commitment 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 "Commitment Fee Period"), Borrower shall pay to the
Administrative Agent for the account of the Banks a commitment fee on the unused
Commitments at the Applicable Fee Percentage. The commitment fee shall be
payable in arrears on or prior to the fifth (5th) Business Day following each
January 31, April 30, July 31 and October 31 and on the Maturity Date,
commencing on January 31, 2005, during the Commitment Fee Period and on the
Maturity Date. The Commitment Fee shall be payable in Yen.
(b) Intentionally Deleted
(c) Intentionally Deleted
(d) Extension Fee. If Borrower elects to extend the term of the
Loan in accordance with Section 2.10(b), Borrower shall pay to the
Administrative Agent, for the account of the Banks in proportion to their
interests, a fee (an "Extension Fee") in an amount equal to 0.25% of the
aggregate Commitments. The Extension Fee shall be paid by Borrower 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
Borrower to pay such fees in accordance with the provisions hereof shall be
binding upon Borrower and shall inure to
32
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 hereunder) shall terminate and expire 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, Borrower extend the Maturity
Date for a period of one (1) year upon the following terms and conditions: (i)
delivery by Borrower 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 Borrower 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) Borrower shall pay the Extension Fee
to Administrative Agent on or before the Extension Date. Borrower 's delivery of
the Extension Notice shall be irrevocable.
SECTION 2.11. Mandatory Prepayment. Upon the occurrence of any TMK
Refinancing, Borrower shall prepay all Loans, together with interest accrued
thereon and all other sums due under this Agreement and the other Loan
Documents.
SECTION 2.12. Optional Prepayments.
(a) Borrower may, upon notice to the Administrative Agent not
later than 1:00 P.M. (Pacific Standard Time) the fourth (4th) Tokyo Business Day
before the date of prepayment (a "Notice of Prepayment"), pay all or any portion
of any TIBOR Loans, Base Rate Loans or Agent Rate Loans, in amounts aggregating
for all Loans in a Group of Loans 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, Borrower may not prepay all or any portion of the principal
amount of any TIBOR Loan or Agent Rate Loan prior to the end of the Interest
Period applicable thereto unless such Borrower shall also pay any applicable
expenses pursuant to Section 2.15. Each such optional prepayment shall be made
by paying the principal amount to be prepaid together with interest thereon to
the date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the Banks included in Group of Loans being prepaid, 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.
(b) Any amounts so prepaid pursuant to Section 2.12(a) may not be
reborrowed.
33
(c) Borrower 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 upon at least five (5) Tokyo 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. Borrower shall be
permitted to designate in its notice of cancellation which Loans, if any, are to
be prepaid in accordance with Section 2.12(a).
SECTION 2.13. Security.
(a) Mortgage. The due, prompt and punctual payment and performance
of all Obligations of the Credit Parties, including, without limitation, the
payment of principal of and interest on the Loans and all other fees, costs,
charges and expenses provided for herein shall be secured by a security interest
in and to all of Borrower's right, title and interest in and to the Tokai
Property. Borrower shall, at its sole cost and expense, prepare, duly execute
and deliver to each Bank a Mortgage (ne teito ken) securing the Loans made by
such Bank. Such Mortgage, when properly filed, registered or recorded in the
appropriate Legal Affairs Bureau shall create a valid and perfected mortgage
lien on the Tokai Property subject only to Permitted Liens applicable thereto.
(b) Mortgage Perfection Documents. Concurrently herewith, Borrower
shall deliver to the Administration Agent the following ("Mortgage Perfection
Documents"): (i) undated powers of attorney of Borrower necessary to permit the
Administrative Agent and the Banks to effectively permanently register the
Mortgages; (ii) a recent certificate of registered seal for 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 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 Mortgages); and (iv) any other documents
reasonably requested by Administrative Agent that are necessary for the Banks to
perfect their security interest in the Mortgages, executed by Borrower and
updated to the extent necessary or as otherwise reasonably requested by the
Administrative Agent as required to perfect such security interest.
(c) Collateral Perfection Event. Administrative Agent and Banks
shall not be entitled to register any Mortgage if a Collateral Perfection Event
is not continuing. Administrative Agent shall be authorized without necessity of
further authorization from 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 Collateral Perfection Event. In the event Administration Agent
and Banks exercise their right hereunder to register Mortgages following a
Collateral Perfection Event, the maximum secured amount (kyokudo gaku) under
each Mortgage shall be 110% of the initial Commitment of any Bank. 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
registration of any Mortgage.
34
(d) Additional Mortgage. Upon completion of any building or
structure developed on the Tokai Property, Borrower shall, for each Bank,
promptly execute an additional mortgage over such building or structure in favor
of such Bank (the "Additional Mortgages") and deliver such Additional Mortgage
to Administrative Agent on behalf of such Bank, together with any other
documents necessary to create or register such Additional Mortgages. The
Additional Mortgages shall be substantially in the form of Exhibit B-2 attached
hereto and otherwise in a form reasonably satisfactory to Administrative Agent.
Concurrently with the delivery of the Additional Mortgages, Borrower shall
deliver to Administrative Agent the Mortgage Perfection Documents relating
thereto.
SECTION 2.14. General Provisions as to Payments.
(a) Borrower shall make each payment of the principal of and
interest on Loans and fees hereunder by making such amounts available to the
Administrative Agent in the Syndication Account by no later than 12:00 P.M.
(Tokyo time) on the date when due in Yen immediately available in Tokyo, Japan
to the Administrative Agent. The Syndication Account shall be maintained
throughout the Term and shall be under the ownership and control of Borrower,
except that Borrower hereby irrevocably instructs and grants the Administrative
Agent the authority to withdraw any and all such funds from the Syndication
Account solely when due in accordance with the terms of this Agreement without
the need for any other instruction, request or consent of Borrower. Borrower
hereby waives any right it may have to cancel or withdraw such instruction and
authorization. The Administrative Agent will promptly (and in any event on the
same day) distribute to each Bank its ratable share of each such payment
received by the Administrative Agent for the account of the Banks. 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 Borrower prior to the date on which any payment is due to the Banks
hereunder that Borrower will not make such payment in full, the Administrative
Agent may assume that 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
Borrower shall not have so made such payment, each Bank shall repay to the
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 Borrower makes any payment of
principal with respect to any TIBOR Loan or Agent Rate Loan on any day other
than the
35
last day of the Interest Period applicable thereto, or if Borrower fails to
borrow any TIBOR Loans or Agent Rate Loans after notice has been given to any
Bank in accordance with Section 2.5(a), Borrower shall reimburse each Bank
within fifteen (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 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 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 TIBOR 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). All other interest and fees (including, without limitation, interest based
on the Prime Rate and Commitment Fees) 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).
SECTION 2.17. Use of Proceeds. Borrower shall use the proceeds of
the Loans solely to fund or re-finance the acquisition and development of the
Tokai Property and to pay financing-related costs.
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) Borrower and the Administrative Agent and each of the Banks
shall have executed and delivered to the Administrative Agent a duly executed
original of this Agreement;
(b) Guarantors shall have executed and delivered to the
Administrative Agent a duly executed original of the Guaranty;
(c) Borrower shall have executed and delivered to Administrative
Agent, for each Bank, a duly executed original of a Mortgage in favor of such
Bank;
(d) the Administrative Agent shall have received all Mortgage
Perfection Documents;
36
(e) each Bank shall have executed and delivered to the
Administrative Agent fifteen (15) originally executed Consents in the form of
Exhibit C;
(f) the Administrative Agent shall have received an opinion of
Orrick Herrington & Sutcliffe LLP, US counsel for the Credit Parties, Piper
Rudnick, US counsel for AMB Corporation, and Orrick Tokyo Law Offices, 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) a director's certificate for Borrower
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), register of common
shareholders, register of preferred shareholders and authorizing resolutions;
and (ii) an officer's certificate for AMB Corporation attaching the following
items: authorizing resolutions for AMB Corporation, with respect to itself and
as general partner of AMB LP, the agreement of limited partnership of AMB LP,
the certificate of limited partnership of AMP LP and a certificate of existence
for AMB LP from the Secretary of State (or the equivalent thereof) of Delaware,
the articles of incorporation and by laws of AMB Corporation and 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 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
37
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 Borrower to approve and process the
same, shall have been paid to Skadden, Arps, Slate, Meagher & Flom LLP;
(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;
(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;
(p) the Administrative Agent shall have received a copy of the
real property register (fudosan tokibo tohon) or certificate of registered
matters (zenbu jiko shomeisho) for the Tokai Property dated no earlier than
thirty (30) days prior to the Closing Date, showing Borrower as the owner of the
Tokai Property;
(q) the Administrative Agent shall have received an amount equal
to any stamp taxes, documentary taxes or similar fees required to be paid in
connection with the execution of the Mortgages or the other Loan Documents;
(r) the Administrative Agent shall have received evidence
satisfactory to it that the Tokyo Metropolitan Government has consented to the
creation of the Mortgages;
(s) the Administrative Agent shall have received all other
documents, filings, affidavits, and deliveries normally and customarily
delivered in connection with a secured transaction, as requested by
Administrative Agent in its reasonable opinion.
SECTION 3.2. Borrowings. The obligation of any Bank to make a Loan
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;
38
(b) immediately after such Borrowing, the aggregate outstanding
principal amount of the Loans will not exceed the aggregate amount of the
Commitments and the aggregate number of Borrowings (whether or not outstanding)
shall not exceed fifteen (15);
(c) immediately before and after such Borrowing, no Default or
Event of Default shall have occurred and be continuing, both before and after
giving effect to the making of such Loans;
(d) the representations and warranties of each of the Guarantors
and 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;
(e) 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
(f) 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 shall be deemed to be a representation and warranty by
each of the Guarantors and Borrower on the date of such Borrowing as to the
facts specified in clauses (b), (c), (d), (e), and (f) (to the extent that
Borrower is or should have been aware of any Material Adverse Effect) of this
Section 3.2, except as otherwise disclosed in writing by 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.
39
(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.
(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
40
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.
(ii) Since September 30, 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 4.1(d), 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
41
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 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 Loans 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
42
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.
(k) Use of Proceeds. All proceeds of the Loans will be used by
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
43
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, 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.
44
(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 F is a true, correct and complete (up to the tiers shown)
organizational and transaction structure chart for the Borrower 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 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, 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. Borrower is a tokutei mokuteki kaisha
duly formed under the laws of Japan. 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.
(b) Power and Authority.
(i) 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
45
delivery on behalf of Borrower and the performance by Borrower of the Loan
Documents to which it is a party.
(ii) 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 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 Borrower of the Loan Documents to which it is a party, nor
compliance by 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 Borrower
pursuant to the terms of any indenture, mortgage, deed of trust, or other
agreement or other instrument to which Borrower (or of any partnership of which
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 Borrower under any organizational document of any Person in which
Borrower has an interest, or cause a material default under 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 Borrower, threatened against or affecting, (i) Borrower,
(ii) the Loan Documents or any of the transactions contemplated by the Loan
Documents or (iii) any of its 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.
(e) Organizational Documents. Borrower represents that it has
delivered to the Administrative Agent true, correct and complete copies of its
organizational documents.
46
(f) Construction Progress. The construction of the Tokai Property
has not experienced any substantial delays, from the schedule set forth in the
plans disclosed to Administrative Agent prior to the Closing Date, caused by the
negligence of Borrower.
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
AMB LP covenants and agrees that, and, as applicable, each of AMB
Corporation and Borrower 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;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of AMB LP,
executed by the chief financial officer of AMB Corporation, as general partner
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
47
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 6.1(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 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
Corporation, as general partner of AMB LP, obtains knowledge of any Default, if
such Default is then continuing, a certificate of AMB LP, executed by the chief
financial officer or other executive officer of AMB Corporation, as general
partner 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 Corporation, as general partner of
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 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
48
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 Corporation, as general partner 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;
(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 Borrower
prepared by Borrower in the ordinary course of business, together with notice
from Borrower of any disposition or transfer by 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
49
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 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.
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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 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.
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(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.
(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 (7.5%) 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
52
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),
determined 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 5.9(a) shall be deemed to prohibit the sale or
leasing of portions of the Real Property Assets in the ordinary course of
business.
(b) Borrower shall not 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
53
indirectly, by AMB LP and AMB LP continues to control such surviving entity,
(iii) the surviving entity assumes all obligations of its predecessor hereunder;
(iv) if such merger or consolidation affects any collateral for the Loans,
substantially similar substitute collateral (in Agent's reasonable opinion) are
provided as required by Section 2.13 and (v) a ratification and reaffirmation by
the Guarantors of their obligations under the Guaranty is delivered to
Administrative Agent. Borrower shall not 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 5.9(b) shall be deemed to
prohibit the leasing of portions of the Tokai Property 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. Borrower shall not
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 6.1(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.
54
(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:
(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 the retirement of
55
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 shares
in Borrower unless, following such disposition, AMB LP continues to own,
directly or indirectly, at least fifty percent (50%) of 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 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 an 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 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
56
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
(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
57
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.
SECTION 5.15. Construction Progress Reports. Simultaneously with the
delivery of each set of quarterly financial statements referred to in Section
5.1(b), Borrower shall deliver, or cause to be delivered, to Administrative
Agent and each Bank copies of any progress reports delivered to any Credit Party
or any of their respective affiliates by the contractor for the development of
the Tokai Property.
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default. An "Event of Default" shall have
occurred if one or more of the following events shall have occurred and be
continuing:
(a) Borrower shall fail to (i) pay when due any principal of any
Loan, or (ii) 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) any Credit Party 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 Credit Party;
(c) any Credit Party shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those referenced in Section
6.1(a), (b), (e), (f), (o), (q), (t) and (w) hereof) and the Mortgage for 30
days after written notice thereof has been given to Borrower 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 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;
(d) any representation, warranty, certification or statement made
by a Credit Party 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 Credit Party at the time made
58
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 Credit
Parties;
(e) any Credit Party 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, 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, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any action to authorize any of the foregoing;
(f) an involuntary case or other proceeding shall be commenced
against any Credit Party 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 order for relief shall
be entered against any Credit Party under the federal or national bankruptcy
laws as now or hereafter in effect;
(g) at any time, for any reason, Borrower seeks to repudiate its
obligations under any Loan Document;
(h) a default by Borrower beyond any applicable notice or grace
period under any of the other Loan Documents to which Borrower is a party;
(i) any assets of 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;
(j) any of 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
59
rights in connection therewith shall constitute a prohibited transaction under
ERISA and/or the Code;
(k) any Guarantor shall fail to pay any amounts due under the
terms and conditions of the Guaranty;
(l) 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;
(m) 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;
(n) 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)
60
enforcement proceedings shall be commenced by any creditor on any such judgments
or decrees;
(o) 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;
(p) 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;
(q) AMB Corporation shall cease at any time to qualify as a real
estate investment trust under the Code;
(r) 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;
(s) 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;
(t) at any time, for any reason, any Guarantor seeks to repudiate
its obligations under the Guaranty;
(u) 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;
61
(v) 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;
(w) if (i) any Insolvency Event shall have occurred with respect
to 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 Borrower within
thirty (30) days of the date the Administrative Agent or any Bank shall be
required to set up such reserves; or
(x) the occurrence of any material breach by Borrower of the
Purchase and Sale Agreement which results in the termination of the Purchase and
Sale Agreement or the repurchase thereunder of the Tokai Property by the Tokyo
Metropolitan Government, or any other act is taken by the Tokyo Metropolitan
Government in connection with the Purchase and Sale Agreement which impairs the
Mortgages or the Additional Mortgages which breach, repurchase or other act
results in a Material Adverse Effect, and the Loans are not paid in full within
30 days after such termination, repurchase or other act.
SECTION 6.2. Rights and Remedies with Respect to Event of Default.
Upon the occurrence of any Event of Default described in Sections 6.1(e), (f),
(g), (i), (j), (t) or (v), 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
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 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, (a) declare that the Commitments are
terminated, and (b) declare that 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 6.3. Intentionally Deleted.
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SECTION 6.4. 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.
SECTION 6.5. 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, 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 Borrower or Guarantors a
notice of Default or Event of Default, Administrative Agent shall promptly give
notice thereof to each Bank.
SECTION 6.6. Intentionally Deleted
SECTION 6.7. 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 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
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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.
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.
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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) Tokyo Business
Days of its receipt of such funds from such Credit Party or such other party
liable therefor.
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, upon
the request of Borrower, 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, provided no Event of Default has occurred and is then continuing, be
subject to Borrower's approval, which approval shall not be unreasonably
withheld or delayed. If no successor Administrative Agent shall have been so
appointed by the Majority Banks and approved by Borrower, 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, provided no Event of Default has occurred and is then
continuing, be subject to Borrower 's approval, which approval 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
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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)
Tokyo 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,
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 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) Tokyo 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 Organizational Documents and Asset
Liquidation Plan Amendments. Borrower may be required from time to time to amend
its organizational documents and Asset Liquidation Plan as a result of (i)
certain of its actions taken in accordance with this Agreement, or (ii) certain
actions to be taken by it in connection with the contemplated TMK Refinancing.
The Administrative Agent and each of the Banks acknowledges the foregoing and
hereby consents to any and all amendments to Borrower's organizational documents
and Asset Liquidation Plan which are required as a result of (i) Borrower's
actions taken in accordance with this Agreement, or (ii) Borrower's actions to
be taken in connection with the contemplated TMK Refinancing, except to the
extent any such amendment materially adversely affects the rights and/or
remedies of any such Bank hereunder. Upon filing any such amendment, Borrower
shall concurrently deliver a copy of such amendment to Administrative Agent.
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The Administrative Agent and each of the Banks shall reasonably cooperate with
Borrower, at Borrower's sole cost and expense, in amending its organizational
documents and/or Asset Liquidation Plan and timely provide Borrower with such
executed consents, acknowledgments of notice or other documents as 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 fifteen (15) originals of the "Prior Consent Concerning Amendment
to Organizational Documents and Asset Liquidation Plan" in the form of Exhibit C
(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 Borrower
seeks to amend its organizational documents and/or 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 Borrower and the Banks, whereupon until the Administrative Agent
notifies Borrower 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 Borrower notifies the Administrative
Agent on or before the second (2nd) Tokyo 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) to make, maintain or fund its TIBOR Loans, 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 to make TIBOR Loans shall be suspended. With respect to TIBOR Loans,
before giving any notice to the Administrative Agent pursuant to this Section
8.2, 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
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otherwise disadvantageous to such Bank. If such 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, such TIBOR Loan shall be converted
as of such date to a Base Rate Loan (without payment of any amounts that
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, Borrower shall have the right, upon five (5) Tokyo
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.
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, 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 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), Borrower shall pay to such Bank
such additional amount or amounts attributable to the TIBOR Loans made to
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.
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(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), Borrower shall pay to such Bank such additional
amount or amounts attributable to the TIBOR Loans made to 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 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 8.3 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 Borrower of any such event within ninety (90)
days following the end of the month during which such event occurred, then
Borrower's and Guarantor's liability for any amounts described in this Section
8.3 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
Borrower of the occurrence of such event. A certificate of any Bank claiming
compensation under this Section 8.3 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, Borrower shall have the right, upon five (5) Tokyo 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, together with interest and all other amounts due
thereon, upon which event, such Bank's Commitment shall be deemed to be
canceled.
SECTION 8.4. Taxes.
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(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, (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 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, 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 other
Loan Document of Borrower or from the execution or delivery of, or otherwise
with respect to, this Agreement, any other Loan Documents of Borrower
(hereinafter referred to as "Other Taxes").
(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 Parties' 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) Borrower agrees to indemnify each Bank and the Administrative
Agent for the full amount of Non-Excluded Taxes or Other Taxes for which
Borrower is liable under this Section 8.4 (including, without limitation, any
Non-Excluded Taxes or
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Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.4) paid by such Bank or the Administrative Agent (as the case may
be) and, so long as such 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 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 Borrower take all
reasonable steps (if any) required to be taken to establish entitlement to
exemption for 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
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 authorities a certificate certifying that such payment
constitutes domestic source income (as provided for in Article 180 of the Income
Tax Law of Japan (Law No. 33, 1965)) and deliver such certificate to 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 requested 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 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
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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, Borrower shall take
such steps as such Bank shall reasonably request to assist such Bank to recover
such Taxes so long as Borrower shall incur no cost or liability as a result
thereof.
(i) If 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, Borrower shall have the right, upon five (5) Tokyo 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, together with interest and all other amounts due
thereon, upon which event, such Bank's Commitment shall be deemed to be
canceled.
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 Borrower shall, by at least five
(5) Tokyo Business Days' prior notice to such Bank through the Administrative
Agent, have elected that the provisions of this Section 8.5 shall apply to such
Bank, then, unless and until such Bank notifies Borrower that the circumstances
giving rise to such suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank to
Borrower as TIBOR Loans shall be deemed 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) 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.
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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 such Credit Party at its address, telex number or facsimile number set forth
on Exhibit D attached hereto, (y) in the case of the Administrative Agent, at
its address, telex number or facsimile number set forth on Exhibit D 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 9.1 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 delivery, or (iii) if given by an
internationally (if notices are to be sent to a different country) or nationally
recognized overnight carrier, 48 hours after such communication is deposited
with such carrier (72 hours in the case notices are to be sent to a different
country) with postage prepaid delivery, or (iv) if given by any other means,
when delivered at the address specified in this Section 9.1; 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 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 Borrower shall only be liable for the enforcement costs
incurred with respect to the Loan Documents to which 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
73
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
Mortgages 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).
(b) 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 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 Borrower or any of its Environmental Affiliates, including, without
limitation, all on-site and off-site activities of Borrower or any of its
Environmental Affiliate involving Materials of Environmental Concern, (iv) the
breach of any environmental representation or warranty of 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. Borrower's obligations
under this Section 9.3 shall survive the termination of this Agreement and the
payment of the Obligations. Without limitation of the other provisions of this
Section 9.3, Borrower shall
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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 Borrower and/or any Guarantor, or a breach by 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 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. 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 Loans advanced by it, which is
greater than the proportion received by any other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Loans
made 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
Loans made by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section 9.4 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 Loans or the Guaranty. Each Credit Party agrees, to the fullest extent
it may effectively do so under applicable law, that any holder of a
participation in a Loan, 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.
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(a) Except as provided below in Section 9.5(b), any provision of
this Agreement or any 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 Administrative Agent
in its capacity as Administrative Agent are affected thereby, by the
Administrative Agent); 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
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 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
Loans, or the number of Banks, which shall be required for the Banks or any of
them to take any action under this Section 9.5(a) or any other provision of this
Agreement, (v) release the Guaranty or (vi) modify the provisions of this
Section 9.5.
(b) Notwithstanding the foregoing, in the event that the
Guarantors or the Existing Credit Agreement Agent propose to modify, waive or
restate, or request a consent or approval with respect to, 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 or request to the Existing Credit Agreement bank
group (such proposal or request being the "Existing Credit Agreement Proposal"),
Borrower and the Guarantors shall deliver a duplicative proposal or request for
a Covenant Modification with respect to the Facility to the Administrative Agent
and the Banks. Borrower shall pay the same percentage fees (if any) 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, waiver, consent or
approval. 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, or the granting of any consent or
approval thereunder, 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
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"agent" 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 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 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 Event of Default
shall not be affected by the subsequent cure of such 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, waiver, consent or approval of this Agreement
described in clause (i), (ii), (iii), (iv) or (v) of Section 9.5(a) 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 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
Event of Default, in any amount, all or a proportionate part of all, of its
rights and obligations under this Agreement 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 E hereto executed
by such Assignee and such transferor Bank; provided, that if no Event of
77
Default shall have occurred and be continuing, such assignment shall be subject
to the Administrative Agent's and Borrower'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, Borrower'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. 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 JPY500,000. 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 of
Japan (Law No. 33, 1965)) in accordance with Section 8.4. Any assignment made
during the continuation of an Event of Default shall not be affected by any
subsequent cure of such 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.
(f) Anything in this Agreement to the contrary notwithstanding, so
long as no 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
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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 (EXCEPT FOR THE
MORTGAGES AND ADDITIONAL MORTGAGES, WHICH SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF JAPAN) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES
THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this Agreement
or any other Loan Document (except for the Mortgages and the Additional
Mortgages) 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. 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 such 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.
(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 Borrower and any other amounts due from each Credit Party hereunder to
the Administrative Agent as provided
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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.
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.
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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 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:
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(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) Tokyo Business Days after notice of
such failure from Administrative Agent, (y) shall otherwise fail to perform such
Bank's obligations under the Loan Documents for a period of five (5) Tokyo
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) Tokyo 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.
(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)), 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 indebtedness,
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)),
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,
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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.
(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; provided,
however, that if a Japanese court does not uphold the foregoing agreement
contained in this sentence and applies different rules of distribution in the
insolvency proceedings of the Borrower or the judicial foreclosure of the
Mortgage, the parties shall comply with the rules of distribution adopted by
such court and the last sentence of this paragraph shall apply. 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;
83
provided, however, that if a Japanese court does not permit the direct delivery
to the Administrative Agent of the amount deliverable to any Junior Creditor in
the context of the insolvency proceeding of the Borrower or the judicial
foreclosure of the Mortgage, the next sentence shall apply. 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 (insofar as permitted by the applicable Governmental Rules), 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
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.
84
(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 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.
(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
85
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 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 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
86
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.
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 Borrower 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 Borrower (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
Borrower, 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 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 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, Borrower 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 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). Such
Borrowing 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 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, Borrower shall be deemed to have made a Base Rate
Borrowing for the total amount
87
of such outstanding Commitments (and 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). Such Borrowing shall be
applied toward the payment of the Non-QII Bank's Loans and Borrower shall pay
the balance of the Non-QII Bank's Loans to the extent Borrower has funds
available. 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,
Borrower shall have the right at any time to pay in full the Loans of any
Non-QII Bank.
SECTION 9.19. Release. At such time as the Obligations have been
paid in full, the Administrative Agent and each Bank shall take such actions (at
Borrower's sole cost and expense) as are necessary to release the Liens created
by this Agreement and the other Loan Documents.
SECTION 9.20. English Language. If this Agreement or any of the
other Loan Documents is translated into Japanese or any other language for the
convenience of the parties or either of them, the English language version shall
for all purposes be deemed to be the definitive and binding version hereof or
thereof; except for Exhibit A hereto, the Mortgages and the Additional Mortgages
which shall be executed in Japanese and for which only the Japanese version
shall govern.
SECTION 9.21. USA PATRIOT ACT. Each Bank hereby notifies 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 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 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.
88
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER:
AMB TOKAI TMK,
a Japan tokutei mokuteki kaisha
Sanno Park Tower
11-1 Nagatacho 2-chome
Chiyoda-ku, Tokyo
By: /s/ Michael A. Coke
-----------------------------
Name: Michael A. Coke
Title: Director
[To be signed and sealed]
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: JPY4,500,000,000
MIZUHO BANK, LTD.,
as Documentation Agent and a Bank
By: /s/ Mizuho Bank, Ltd.
-----------------------------------------
Name:
Title:
TOTAL COMMITMENT: JPY4,500,000,000
SHINSEI BANK, LIMITED,
as a Bank
By: /s/ Hideaki Ichikawa
-----------------------------------------
Name: Hideaki Ichikawa
Title: RM Business Head III,
General Manager, Corporate Banking
Business Division IX
TOTAL COMMITMENT: JPY4,500,000,000
THE BANK OF TOKYO-MITSUBISHI, LTD.,
as a Bank
By: /s/ The Bank of Tokyo-Mitsubishi, Ltd.
-----------------------------------------
Name:
Title:
TOTAL COMMITMENT: JPY3,000,000,000
SAITAMA RESONA BANK, LTD.,
as a Bank
By: /s/ Tadahiro Tone
-----------------------------------------
Name: Tadahiro Tone
Title: President
TOTAL COMMITMENT: JPY2,000,000,000
UFJ BANK LIMITED,
as a Bank
By: /s/ UFJ Bank Limited
-----------------------------------------
Name:
Title:
TOTAL COMMITMENT: JPY1,500,000,000
Schedule 1.1(b)
Initial Qualifying Unencumbered Properties
(see attached)
Schedule 4.1(d)
Disclosure of
Additional Material Indebtedness
NONE.
Schedule 4.1(f)
Guarantor CBA and ERISA Plans
The employees of AMB Property, L.P. may currently participate in a 401(K) Plan.
Other benefits for employees include: health care plans, dental care, vision
care, stock option and incentive plan, non-qualified deferred compensation plan
(for officers only), life insurance and accidental death and dismemberment plan,
flexible spending account, travel/accident insurance, short-term disability,
long-term disability, sick time, vacation time, personal days, holidays,
employee assistance program, work/life benefits, and direct paycheck deposit.
Schedule 5.11(c)(1)
AMB Corporation Investments
AMB Property Holding Corporation
AMB Property Holding II Corporation
AMB Property Holding III Corporation
Texas AMB I, LLC
Schedule 5.11(c)(2)
AMB Corporation Properties
AMB Property Holding Corporation
AMB Property Holding II Corporation
AMB Property Holding III Corporation
Texas AMB I, LLC
EXHIBIT A
Description of the Tokai Property
EXHIBIT B-1
Form of Mortgage
EXHIBIT B-2
Form of Additional Mortgage
EXHIBIT C
Form of Consent
[JAPANESE CHARACTERS]
PRIOR CONSENT CONCERNING AMENDMENT TO
ORGANIZATIONAL DOCUMENTS AND
ASSET LIQUIDATION PLAN
[JAPANESE CHARACTERS]
Pursuant to Article 118-2, Paragraph 3 (2) of the Law Concerning Asset
Liquidation of Assets, we hereby consent, as an interested party, to amend the
Asset Liquidation Plan of AMB TOKAI TMK (which was filed on July 15, 2004 with
the Kanto Local Finance Bureau together with the notice of commencement of
business, as the same may have been amended) and any related amendments to AMB
TOKAI TMK organizational documents as described in the Exhibit attached hereto.
[JAPANESE CHARACTERS]
Date:__________________
[JAPANESE CHARACTERS] :
Address :
[JAPANESE CHARACTERS] :
Name :
[JAPANESE CHARACTERS] :
Representative _______________________________ (signature)
____________________________ (signature)
[NOTE: EACH BANK TO SIGN IN BOTH SPACES. SECOND SIGNATURE IS DEEMED TO AUTHORIZE
CORRECTIONS AND COMPLETION OF ABOVE.]
EXHIBIT D
Notices
Borrower:
AMB Tokai TMK
Sanno Park Tower, 5th Floor
11-1, Nagatacho 2-chome
Chiyoda-ku, Tokyo 100-6105
Japan
Attention: Mr. Frederick E. Wyler
Director
Facsimile: +81-3-6225-9601 and +1-415-394-9001
Telephone: +1-415-394-9000
and with a copy to:
AMB Property Corporation
Pier 1, Bay 1
San Francisco, California 94111
USA
Attention: General Counsel
Facsimile: +1-415-394-9001
Telephone: +1-415-394-9000
and
AMB Property Corporation
Pier 1, Bay 1
San Francisco, California 94111
Attn: Senior Vice President
Capital Markets
Facsimile: +1-415-394-9001
Telephone: +1-415- 394-9000
AMB Property, L.P.:
AMB Property, L.P.
c/o AMB Property Corporation
Pier 1, Bay 1
San Francisco, California 94111
USA
Attention: General Counsel
Facsimile: +1-415-394-9001
Telephone: +1-415-394-9000
and
c/o AMB Property Corporation
Pier 1, Bay 1
San Francisco, California 94111
Attn: Senior Vice President
Capital Markets
Facsimile: +1-415-394-9001
Telephone: +1-415-394-9000
AMB Property Corporation:
AMB Property Corporation
Pier 1, Bay 1
San Francisco, California 94111
USA
Attention: General Counsel
Facsimile: +1-415-394-9001
Telephone: +1-415- 394-9000
and
AMB Property Corporation
Pier 1, Bay 1
San Francisco, California 94111
Attn: Senior Vice President
Capital Markets
Facsimile: +1-415-394-9001
Telephone: +1-415-394-9000
Administrative Agent:
Sumitomo Mitsui Banking Corporation
Yusen-Odenmacho Build.
13-6, Kodenma-cho
Nihonbashi Chuo-ku
Tokyo 103-0001, Japan
Attention: Credit Control and Administration Group
Facsimile: +81-3-3501-8539
Telephone: +81-3-3592-8742
EXHIBIT E
Form of Transfer Supplement
EXHIBIT F
Organizational and Structural Chart for Borrower
EXHIBIT G
Form of Notice of Borrowing
[Date]
Sumitomo Mitsui Banking Corporation,
As Administrative Agent
Yusen-Odenmacho Build.
13-6, Kodenma-cho
Nihonbashi Chuo-ku
Tokyo 103-0001, Japan
Attention: Credit Control and Administration Group
Re: Credit Facility Agreement, dated as of November 24, 2004 (the
"Credit Agreement"), AMB Tokai TMK, as Borrower (the "Borrower"),
AMB Property, L.P., as Guarantor, AMB Property Corporation, as
Guarantor, the Banks listed on the signature pages thereof, and
Sumitomo Mitsui Banking Corporation, as Administrative Agent
This Notice of Borrowing is delivered pursuant to Sections 2.2 and 3.2(a)
of the Credit Agreement. Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed thereto in the Credit Agreement. Borrower
hereby requests to borrower a Loan as follows:
1. Date of Borrowing: ____________________________
2. Amount of Borrowing: ____________________________
3. Interest Period: [ 1 month/ 3 months / 6 months]
4. Payment instructions: Deposit into the Syndication Account
5. First Interest Period Date: ____________________________
6. Interest Rate for first Interest Period: [ Base Rate / TIBOR / Agent Rate]
7. Subsequent Interest Period Dates: [_____(___)] day of each [__________,
__________, __________ and __________]
Borrower hereby certifies that as of the date of this Notice of Borrowing, no
Default or Event of Default has occurred and is continuing.
Very truly yours,
TOKAI TMK,
a Japan tokutei mokuteki kaisha
Sanno Park Tower
11-1 Nagatacho 2-chome
Chiyoda-ku, Tokyo
[ ]
Director
EXHIBIT H
Form of Notice of Interest Period Election
[Date]
Sumitomo Mitsui Banking Corporation,
As Administrative Agent
Yusen-Odenmacho Build.
13-6, Kodenma-cho
Nihonbashi Chuo-ku
Tokyo 103-0001, Japan
Attention: Credit Control and Administration Group
Re: Credit Facility Agreement, dated as of November 24, 2004 (the
"Credit Agreement"), AMB Tokai TMK, as Borrower (the "Borrower"),
AMB Property, L.P., as Guarantor, AMB Property Corporation, as
Guarantor, the Banks listed on the signature pages thereof, and
Sumitomo Mitsui Banking Corporation, as Administrative Agent
This Notice of Interest Period Election is delivered pursuant to Section
2.7 of the Credit Agreement. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed thereto in the Credit Agreement.
Borrower hereby requests to change the Interest Period and Interest Period Dates
for the Loans comprising the outstanding Borrowing described below, with effect
from the next Interest Period Date for such Borrowing, as follows:
1. Date of applicable Borrowing: ____________________________
2. Initial Amount of applicable Borrowing: ____________________________
3. Next Interest Period Date: ____________________________
4. New Interest Period commencing Next Interest Period Date: [ 1 month/ 3
months / 6 months]
5. New Interest Period Dates: [_____(___)] day of each [____________]
Very truly yours,
AMB TOKAI TMK,
a Japan tokutei mokuteki kaisha
Sanno Park Tower
11-1 Nagatacho 2-chome
Chiyoda-ku, Tokyo
[ ]
Director
EXHIBIT I
Form of Notice of Prepayment
[Date]
Sumitomo Mitsui Banking Corporation,
As Administrative Agent
Yusen-Odenmacho Build.
13-6, Kodenma-cho
Nihonbashi Chuo-ku
Tokyo 103-0001, Japan
Attention: Credit Control and Administration Group
Re: Credit Facility Agreement, dated as of November 24, 2004 (the
"Credit Agreement"), AMB Tokai TMK, as Borrower (the "Borrower"),
AMB Property, L.P., as Guarantor, AMB Property Corporation, as
Guarantor, the Banks listed on the signature pages thereof, and
Sumitomo Mitsui Banking Corporation, as Administrative Agent
This Notice of Prepayment is delivered pursuant to Section 2.12 of the
Credit Agreement. Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed thereto in the Credit Agreement. Borrower hereby
notifies Administrative Agent that on the date of prepayment specified below it
shall prepay outstanding Loans in the aggregate principal amount specified
below, together with accrued interest thereon to the date of prepayment and any
other amounts payable under the Credit Agreement as of such date of prepayment:
1. Date of prepayment: ____________________________
2. Aggregate principal of Loans to be prepaid: Y_______________________
[In accordance with Section 2.12(c), Borrower hereby cancels [all of the undrawn
Commitments of the Banks / Y____________ of the undrawn Commitments of the
Banks], which cancellation shall become effective upon prepayment of the Loans
in accordance with the foregoing and Section 2.12 of the Credit Agreement.]
Very truly yours,
AMB TOKAI TMK,
a Japan tokutei mokuteki kaisha
Sanno Park Tower
11-1 Nagatacho 2-chome
Chiyoda-ku, Tokyo
[ ]
Director