<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 1997
REGISTRATION NO. 333-15553
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 5
TO
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
KILROY REALTY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS GOVERNING INSTRUMENTS)
2250 EAST IMPERIAL HIGHWAY
EL SEGUNDO, CALIFORNIA 90245
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
----------------
JOHN B. KILROY, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
KILROY REALTY CORPORATION
2250 EAST IMPERIAL HIGHWAY
EL SEGUNDO, CALIFORNIA 90245
(NAME AND ADDRESS OF AGENT FOR SERVICE)
----------------
COPIES TO:
EDWARD SONNENSCHEIN, JR., ESQ. LYNN TOBY FISHER, ESQ.
LATHAM & WATKINS KAYE, SCHOLER, FIERMAN, HAYS &
633 WEST FIFTH STREET HANDLER, LLP
LOS ANGELES, CALIFORNIA 90071 425 PARK AVENUE
(213) 485-1234 NEW YORK, NEW YORK 10022
(212) 836-8000
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<CAPTION>
PROPOSED MAXIMUM AMOUNT OF
AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES BEING REGISTERED PRICE (1) FEE (2)
- --------------------------------------------------------------------------------
<S> <C> <C>
Common Stock, par value $.01 per share.......... $330,625,000 $100,189
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) of the Securities Act of 1933.
(2) The Company has previously paid a registration fee of $64,539 with the
original filing of this Registration Statement on November 5, 1996, based
on the originally proposed maximum offering price and number of shares of
Common Stock to be registered.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
FORM S-11 ITEM NO. AND HEADING LOCATION OR HEADING IN PROSPECTUS
------------------------------ ---------------------------------
<C> <S>
1. Forepart of Registration Statement and
Outside Front Cover Page of
Prospectus............................ Outside Front Cover Page
2. Inside Front and Outside Back Cover
Pages of Prospectus................... Inside Front Cover Page; Outside Back Cover
Page
3. Summary Information, Risk Factors and
Ratio of Earnings to Fixed Charges.... Prospectus Summary; Risk Factors;
Distribution Policy; Business and
Properties; Certain Relationships
and Related Transactions
4. Determination of Offering Price........ Underwriting
5. Dilution............................... Dilution
6. Selling Security Holders............... Not applicable
7. Plan of Distribution................... Underwriting
8. Use of Proceeds........................ Use of Proceeds
9. Selected Financial Data................ Selected Financial Data
10. Management's Discussion and Analysis of
Financial Condition and Results of
Operations............................ Management's Discussion and Analysis of
Financial Condition and Results of
Operations
11. General Information as to Registrant... Prospectus Summary; Business and
Properties; Management; Principal
Stockholders; Certain Provisions of
Maryland Law and of the Company's
Articles of Incorporation and Bylaws
12. Policy with Respect to Certain
Activities............................ Policies With Respect to Certain Activities
13. Investment Policies of Registrant...... Policies With Respect to Certain Activities
14. Description of Real Estate............. Management's Discussion and Analysis of
Financial Condition and Results of
Operations; Business and Properties
15. Operating Data......................... Business and Properties
16. Tax Treatment of Registrant and Its
Security-Holders...................... Federal Income Tax Consequences
17. Market Price of and Dividends on the
Registrant's Common Equity and Related
Stockholder Matters................... Risk Factors; Principal Stockholders;
Distribution Policy; Shares Available for
Future Sale
18. Description of Registrant's
Securities............................ Description of Capital Stock; Certain
Provisions of Maryland Law and of the
Company's Articles of Incorporation and
Bylaws
19. Legal Proceedings...................... Business and Properties--Legal Proceedings
20. Security Ownership of Certain
Beneficial Owners and Management...... Principal Stockholders
21. Directors and Executive Officers....... Management
22. Executive Compensation................. Management
23. Certain Relationships and Related Risk Factors; Business and Properties;
Transactions.......................... Management; Certain Relationships and
Related Transactions; Principal
Stockholders
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
FORM S-11 ITEM NO. AND HEADING LOCATION OR HEADING IN PROSPECTUS
------------------------------ ---------------------------------
<C> <S>
24. Selection, Management and Custody of
Registrant's Investments.............. Risk Factors; Business and Properties;
Policies With Respect to Certain
Activities
25. Policies with Respect to Certain
Transactions.......................... Risk Factors; Business and Properties;
Policies With Respect to Certain
Activities; Management; Certain
Relationships and Related Transactions;
Principal Stockholders
26. Limitations of Liability............... Management; Certain Provisions of Maryland
Law and of the Company's Articles of
Incorporation and Bylaws
27. Financial Statements and Information... Index to Financial Statements
28. Interests of Named Experts and
Counsel............................... Not Applicable
29. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities........................... Not Applicable
</TABLE>
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION--DATED JANUARY , 1997
PROSPECTUS
- --------------------------------------------------------------------------------
12,500,000 Shares
KILROY REALTY CORPORATION
Common Stock
[LOGO OF KILROY REALTY CORPORATION]
- --------------------------------------------------------------------------------
Kilroy Realty Corporation (the "Company") has been formed to succeed to the
business of Kilroy Industries and its affiliates consisting principally of a
portfolio of Class A suburban office and industrial buildings in prime
locations, primarily in Southern California, and the affiliated real estate
ownership, acquisition, development, leasing and management businesses which
were established in Southern California in 1947. Upon the consummation of this
offering (the "Offering") and a series of related transactions (the "Formation
Transactions"), the Company will own 14 suburban office buildings (the "Office
Properties"), 11 of which are located in Southern California, and 12 industrial
properties (the "Industrial Properties"), 11 of which are located in Southern
California. The Company will operate as a self-administered and self-managed
real estate investment trust (a "REIT"). The Company intends to make regular
quarterly distributions to its stockholders beginning with a distribution for
the period ending March 31, 1997.
All of the shares of common stock of the Company, par value $.01 per share (the
"Common Stock"), offered hereby are being sold by the Company and will
represent approximately 82.0% of all shares of Common Stock (or interests
exchangeable therefor) outstanding after consummation of the Offering. Upon
consummation of the Offering, the Company's officers and directors (and certain
of their affiliates) will own in the aggregate 18.0% of the Common Stock or
interests exchangeable therefor. See "Principal Stockholders." To assist the
Company in maintaining its qualification as a REIT for federal income tax
purposes, ownership by any person generally is limited to 7.0% of the then
outstanding Common Stock, which limit can be waived by the Board of Directors.
Prior to the Offering, there has been no public market for the Common Stock of
the Company. It is currently anticipated that the initial public offering price
will be between $22.00 and $23.00 per share. See "Underwriting" for a
discussion of the factors to be considered in determining the initial public
offering price. The shares of Common Stock offered hereby have been approved
for listing on the New York Stock Exchange (the "NYSE") under the symbol "KRC,"
subject to official notice of issuance. See "Glossary" beginning on page 163
for definitions of certain terms used in this Prospectus.
See "Risk Factors" on pages 20 to 35 for a discussion of certain material
factors which should be considered in connection with an investment in the
Common Stock offered hereby, including:
. Conflicts of interest with, and material benefits to, affiliates of the
Company, including certain officers and directors, in connection with the
Formation Transactions, consummation of the Offering and the operation of
the Company's ongoing businesses, including conflicts associated with the
tax consequences of sales and refinancings of the Company's properties.
. Taxation of the Company as a corporation if it fails to qualify as a REIT
for federal income tax purposes and the resulting decreases in cash
available for distribution.
. The inability of the Company to control the operations of the Services
Company, which could result in decisions that do not reflect the Company's
interest.
. The valuation of the Company's properties was not based on third-party
appraisals, and the consideration to be paid by the Company for the
properties may exceed their aggregate fair market value, thereby increasing
the risk that the aggregate market value of the Common Stock may exceed the
Company's total assets.
. A portion of the Company's anticipated cash flow may be generated from
development activities which are partially dependent on the availability of
development opportunities, and are subject to the risks inherent with
development, which in turn may negatively impact the Company's ability to
make distributions.
. Dependence on demand for office, industrial and retail space in the Southern
California market, thereby increasing the risk that the Company will be
materially adversely affected by general economic conditions in a single
market.
. Dependence on certain significant tenants, particularly Hughes Electronic
Corporation's Space & Communications Company, thereby increasing the
potential negative impact to the Company of downturns in the business of, or
its relationship with, such tenants.
. The distribution requirements of REITs may limit the Company's ability to
finance future developments, acquisitions and expansions without additional
debt or equity financing necessary to achieve the Company's business plan,
which in turn may adversely affect the price of the Company's Common Stock.
- --------------------------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
ANDEXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THESECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSIONPASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Underwriting
Price to Discounts and Proceeds to
Public Commissions(1) Company(2)
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Share............. $ $ $
- -------------------------------------------------------------------------------
Total(3).............. $ $ $
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) The Company has agreed to indemnify the several Underwriters against
certain liabilities, including liabilities under the Securities Act of
1933. See "Underwriting."
(2) Before deducting expenses of the Offering payable by the Company estimated
at $4,541,000.
(3) The Company has granted the several Underwriters a 30-day over-allotment
option to purchase up to 1,875,000 additional shares of Common Stock on the
same terms and conditions as set forth above. If all such additional shares
are purchased by the Underwriters, the total Price to Public will be $ ,
the total Underwriting Discounts and Commissions will be $ and the total
Proceeds to Company will be $ . See "Underwriting."
- --------------------------------------------------------------------------------
The shares of Common Stock are offered by the several Underwriters subject to
delivery by the Company and acceptance by the Underwriters, to prior sale and
to withdrawal, cancellation or modification of the offer without notice.
Delivery of the shares to the Underwriters is expected to be made at the office
of Prudential Securities Incorporated, One New York Plaza, New York, New York,
on or about , 1997.
PRUDENTIAL SECURITIES INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
J.P. MORGAN & CO.
, 1997 SMITH BARNEY INC.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVERALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK AT
A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUMMARY....................................................... 1
The Company.............................................................. 1
Risk Factors............................................................. 3
Formation and Structure of the Company................................... 5
Formation of Kilroy Services, Inc. ...................................... 9
Growth Strategies........................................................ 10
The Office and Industrial Properties..................................... 13
The Company's Southern California Submarkets............................. 15
The Financing............................................................ 15
Distribution Policy...................................................... 16
Tax Status of the Company................................................ 17
The Offering............................................................. 17
Summary Financial Data................................................... 18
RISK FACTORS............................................................. 20
Conflicts of Interest.................................................... 20
Adverse Consequences of Failure to Qualify as a REIT..................... 22
Risks of Development Business and Related Activities Being Conducted by
the Services Company.................................................... 23
No Appraisals; Consideration to be Paid for Properties and Other Assets
May Exceed their Fair Market Value...................................... 23
Cash Flow from Development Activities is Uncertain....................... 24
Dependence on Southern California Market................................. 24
Dependence on Significant Tenants........................................ 24
Distributions to Stockholders Affected by Many Factors................... 25
Real Estate Investment Considerations.................................... 25
Real Estate Financing Risks.............................................. 28
Changes in Investment and Financing Policies Without Stockholder Vote.... 28
Risk of Operations Conducted Through the Operating Partnership........... 29
Influence of Certain Continuing Investors................................ 29
Limits on Ownership and Change in Control................................ 30
Dependence on Key Personnel.............................................. 31
Distribution Payout Percentage........................................... 31
Historical Operating Losses of the Office and Industrial Properties...... 31
No Limitation on Debt.................................................... 31
Government Regulations................................................... 32
Immediate and Substantial Dilution....................................... 33
No Prior Public Market................................................... 34
Effect of Market Interest Rates on Price of Common Stock................. 34
Shares Available for Future Sale......................................... 34
FORMATION AND STRUCTURE OF THE COMPANY................................... 36
Formation Transactions................................................... 36
Reasons for the Reorganization of the Company............................ 38
Comparison of Common Stock and Units..................................... 40
Advantages and Disadvantages of the Formation Transactions to
Unaffiliated Stockholders............................................... 41
Benefits of the Formation Transactions to the Continuing Investors....... 41
Determination and Valuation of Ownership Interests....................... 43
Allocation of Consideration in the Formation Transactions................ 43
FORMATION OF KILROY SERVICES, INC. ...................................... 44
THE COMPANY.............................................................. 45
General.................................................................. 45
Growth Strategies........................................................ 47
USE OF PROCEEDS.......................................................... 51
DISTRIBUTION POLICY...................................................... 53
CAPITALIZATION........................................................... 58
DILUTION................................................................. 59
SELECTED FINANCIAL DATA.................................................. 60
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS........................................................... 62
Results of Operations.................................................... 62
Development and Management Fees.......................................... 64
Adoption of SFAS No. 121................................................. 64
Liquidity and Capital Resources.......................................... 65
Historical Cash Flows.................................................... 66
Funds from Operations.................................................... 67
Inflation................................................................ 67
BUSINESS AND PROPERTIES.................................................. 68
General.................................................................. 68
Occupancy and Rental Information......................................... 75
Lease Expirations........................................................ 75
Tenant Information....................................................... 83
Office Properties........................................................ 84
Industrial Properties.................................................... 91
Development, Leasing and Management Activities........................... 91
Acquisition Properties................................................... 93
The Company's Southern California Submarkets............................. 94
</TABLE>
i
<PAGE>
TABLE OF CONTENTS--(CONTINUED)
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Seattle Market............................................................ 105
Excluded Properties....................................................... 105
Insurance................................................................. 107
Uninsured Losses from Seismic Activity.................................... 107
Government Regulations.................................................... 108
Management and Employees.................................................. 110
Legal Proceedings......................................................... 110
POLICIES WITH RESPECT TO CERTAIN ACTIVITIES............................... 111
Investment Policies....................................................... 111
Dispositions.............................................................. 112
Financing................................................................. 112
Working Capital Reserves.................................................. 113
Conflict of Interest Policies............................................. 113
Other Policies............................................................ 115
THE FINANCING............................................................. 116
The Mortgage Loans........................................................ 116
The Credit Facility....................................................... 116
MANAGEMENT................................................................ 118
Directors and Executive Officers.......................................... 118
Committees of the Board of Directors...................................... 120
Compensation of Directors................................................. 120
Executive Compensation.................................................... 121
Employment Agreements..................................................... 121
Stock Incentive Plan...................................................... 122
Section 401(k) Plan....................................................... 127
Indemnification........................................................... 127
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS............................ 128
Partnership Agreement..................................................... 128
Assignment of Lease; Various Services Provided by the Services Company to
the Kilroy Group......................................................... 128
Benefits of the Formation Transactions to Certain Executive Officers...... 128
PRINCIPAL STOCKHOLDERS.................................................... 129
DESCRIPTION OF CAPITAL STOCK.............................................. 130
General................................................................... 130
Common Stock.............................................................. 130
Transfer Agent and Registrar.............................................. 131
Preferred Stock........................................................... 131
Restrictions on Ownership and Transfer.................................... 131
CERTAIN PROVISIONS OF MARYLAND LAW AND OF THE COMPANY'S ARTICLES OF
INCORPORATION AND BYLAWS................................................. 134
Board of Directors........................................................ 134
Removal of Directors...................................................... 134
Control Share Acquisitions................................................ 135
Amendment to the Articles of Incorporation and Bylaws..................... 136
Meetings of Stockholders.................................................. 136
Advance Notice of Director Nominations and New Business................... 136
Dissolution of the Company................................................ 137
Limitation of Directors' and Officers' Liability.......................... 137
Indemnification Agreements................................................ 138
PARTNERSHIP AGREEMENT OF THE OPERATING PARTNERSHIP........................ 139
Management................................................................ 139
Indemnification........................................................... 139
Transferability of Interests.............................................. 139
Issuance of Additional Units.............................................. 140
Capital Contribution...................................................... 140
Awards Under Stock Incentive Plan......................................... 141
Redemption/Exchange Rights................................................ 141
Registration Rights....................................................... 141
Tax Matters............................................................... 141
Operations................................................................ 142
Duties and Conflicts...................................................... 142
Certain Limited Partner Approval Rights................................... 142
Term...................................................................... 142
SHARES AVAILABLE FOR FUTURE SALE.......................................... 143
General................................................................... 143
Redemption/Exchange Rights/Registration Rights............................ 144
Reinvestment and Share Purchase Plan...................................... 145
FEDERAL INCOME TAX CONSEQUENCES........................................... 145
Taxation of the Company................................................... 145
Failure to Qualify........................................................ 150
Taxation of Taxable U.S. Stockholders Generally........................... 151
Backup Withholding........................................................ 152
Taxation of Tax-Exempt Stockholders....................................... 152
Taxation of Non-U.S. Stockholders......................................... 153
Tax Aspects of the Operating Partnership.................................. 155
Services Company.......................................................... 157
OTHER TAX CONSEQUENCES.................................................... 158
ERISA CONSIDERATIONS...................................................... 158
Employee Benefit Plans, Tax-Qualified Retirement Plans and IRAs .......... 158
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS--(CONTINUED)
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Status of the Company, the Operating Partnership and the Services Company
Under ERISA............................................................. 159
UNDERWRITING............................................................. 160
LEGAL MATTERS............................................................ 161
EXPERTS.................................................................. 161
ADDITIONAL INFORMATION................................................... 162
GLOSSARY................................................................. 163
INDEX TO FINANCIAL STATEMENTS............................................ F-1
</TABLE>
iii
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial data, including the financial statements and notes
thereto, set forth elsewhere in this Prospectus. Unless otherwise indicated,
all calculations and information contained in this Prospectus assume (i) an
initial public offering price of $22.50 per share of Common Stock (representing
the midpoint of the range set forth on the cover page of this Prospectus),
(ii) that the Underwriters' over-allotment option will not be exercised and
(iii) the consummation of the Formation Transactions described under the
heading "Formation and Structure of the Company," including consummation of the
financings described under the heading "The Financing" and the acquisition of
certain properties described under the heading "Business and Properties--
Acquisition Properties" and give pro forma effect thereto as if such
transactions had each occurred on January 1, 1995. In addition, unless
otherwise indicated, all calculations and information contained in this
Prospectus, other than the historical and pro forma financial statements and
the respective notes thereto, give pro forma effect to the recent extension of
the tenant lease with Hughes Electronics Corporation's Space & Communications
Company with respect to space leased in the Office Property located at 2250 E.
Imperial Highway, and a portion of the space leased in the Office Property
located at 2240 E. Imperial Highway as if such lease renewal had occurred on
January 1, 1995. See "Business and Properties--Office Properties--Kilroy LAX"
and Note 5 to the Combined Financial Statements of the Kilroy Group. Unless the
context otherwise requires, (i) the "Company" shall include Kilroy Realty
Corporation ("Kilroy Realty") and its subsidiaries, including Kilroy Realty,
L.P. (the "Operating Partnership") and Kilroy Services, Inc. (the "Services
Company"), and with respect to the period prior to the Offering, the Kilroy
Group (as defined below), and its predecessors, (ii) the "Kilroy Group" shall
mean, collectively, Kilroy Industries, a California corporation ("KI"), and
certain of its affiliated corporations, partnerships and trusts that prior to
the Offering owned the Properties, as identified in "Note 1. Organization and
Basis of Presentation" to the historical financial statements of the Kilroy
Group (collectively, the "Partnerships") and (iii) the "Continuing Investors"
shall mean the persons and entities which beneficially own interests in the
Partnerships or in the Properties and will receive limited partnership
interests ("Units") in the Operating Partnership in connection with the
Formation Transactions. See "--Formation and Structure of the Company."
Additional capitalized terms shall have the meanings set forth in the Glossary
beginning on page 163.
THE COMPANY
The Company has been formed to succeed to the business of the Kilroy Group,
consisting principally of a portfolio of Class A suburban office and industrial
buildings in prime locations, primarily in Southern California, and the Kilroy
Group's real estate ownership, acquisition, development, leasing and management
businesses which were established in Southern California in 1947. Upon the
consummation of the Offering and the Formation Transactions, the Company
(through the Operating Partnership) will own 14 Office Properties encompassing
an aggregate of approximately 2.0 million rentable square feet and 12
Industrial Properties encompassing an aggregate of approximately 1.3 million
rentable square feet. Eleven of the 14 Office Properties and 11 of the 12
Industrial Properties are located in prime Southern California suburban
submarkets (including a complex of three Office Properties located in El
Segundo, adjacent to the Los Angeles International Airport, presently the
nation's second largest air-cargo port, and a complex of five Office Properties
located adjacent to the Long Beach Municipal Airport). The Company also will
own three Office Properties located adjacent to the Seattle-Tacoma
International Airport in the State of Washington and one Industrial Property
located in Phoenix, Arizona. The Office Properties, Industrial Properties and
the related assets owned by the Partnerships contributed to the Company by the
Continuing Investors in connection with the Formation Transactions are
collectively referred to herein as the "Properties." As of September 30, 1996,
the Office Properties were approximately 79.8% leased to 130 tenants and the
Industrial Properties were approximately 93.7% leased to 20 tenants. The
average age of the Office Properties and the Industrial Properties is
approximately 12 years and 24 years, respectively. The Company developed and
leased all but two of the 14 Office Properties and all but five of the 12
Industrial Properties, and, upon consummation of the Offering and acquisition
of the Acquisition Properties, will manage all of the Properties.
1
<PAGE>
The Company was founded in 1947 by John B. Kilroy, Sr., a nationally
prominent member of the real estate community, and is led by John B. Kilroy,
Jr., the Company's Chief Executive Officer and President. The Company's
executive officers have been with the Company for an average of approximately
13 years. The Company presently has 47 employees, 34 of whom are located at the
Company's headquarters at Kilroy Airport Center at El Segundo, California. Upon
consummation of the Offering, the Company's officers and directors (and certain
of their affiliates) will own in the aggregate 18.0% of the Company's Common
Stock (or interests exchangeable therefor).
The Company's strategy has been to own, develop, acquire, lease and manage
Class A properties in select locations in key suburban submarkets, primarily in
Southern California, that the Company believes have strategic advantages
compared to neighboring submarkets. Existing locations offer tenants: (i) lower
business taxes and operating expenses than in adjoining submarkets; (ii) access
to highly skilled labor markets; (iii) strategic access to major transportation
facilities such as freeways, airports and the expanded Southern California
light-rail system; (iv) proximity to the Los Angeles-Long Beach port complex
which presently ranks as the largest commercial port in the United States; and
(v) for tenants with their names on certain Properties, visibility to freeway
and airplane travelers. As a result, the Properties attract major corporate
tenants and historically have achieved among the highest occupancy, tenant
retention and rental rates, both within their respective submarkets and as
compared to their respective neighboring submarkets. See "Business and
Properties--Office Properties" and "--Industrial Properties."
The Company's major tenants include, among others, Hughes Electronic
Corporation's Space & Communications Company and related companies ("Hughes
Space & Communications"), a tenant since 1984, which is engaged in high-
technology commercial activities including satellite development and related
applications such as DirecTV, as well as Mattel, Inc., Northwest Airlines,
Inc., Olympus America, Inc. and Furon Co., Inc. As of December 31, 1995, the
Company's ten largest office tenants and ten largest industrial tenants (based
upon annual base rents as of December 31, 1995) had leased space from the
Company for an average of 5.3 years. The Company's strong relationships with
its tenants is further evidenced by its average tenant retention rate (based
upon rentable square feet) for the period beginning January 1, 1994 and ending
September 30, 1996, which was 71.7% for the Properties located in the Southern
California Area. The Company's extensive experience and long-term presence in
Southern California have enabled it to form key alliances and working
relationships with large corporate tenants, municipalities and landowners that
have led to a variety of development projects and provide a continuing source
of development and acquisition opportunities with institutional sellers. As a
result of its experience and relationships, the Company currently has exclusive
rights to develop approximately 24 acres of developable land (net of the
acreage required for streets) at Kilroy Airport Center Long Beach (the
"Development Properties"). These properties are presently entitled for over
900,000 rentable square feet of office, industrial and retail space. See
"Business and Properties--Development, Leasing and Management Activities."
The Company believes, based on independent economic surveys, that the
Southern California office and industrial real estate market is recovering
after experiencing a downturn over the last several years. Vacancy rates in the
Class A office space market in the greater Southern California area, including
the counties of Los Angeles, Orange, Riverside, San Bernardino and Ventura (the
"Southern California Area"), have decreased from a high in 1991 and 1992 of
nearly 20.0% to a level at the end of 1996 of under 17.0%. Vacancy rates in the
industrial space market in the Southern California Area also are decreasing
from a high of nearly 14.0% in 1992 to 7.6% at the end of 1996. In addition,
the Company has on average achieved increases in rental rates since 1994 in the
Office Properties it has managed. See "--The Company's Southern California
Submarkets" and "Business and Properties--The Company's Southern California
Submarkets." Management believes that the on-going economic recovery in its
submarkets will continue the trend of increasing occupancy rates and should
apply some upward pressure on rents for Class A office buildings. See "--Growth
Strategies."
2
<PAGE>
The Company believes that the foundation for its growth in future years will
be the strengthening Southern California economy, the quality and strategic
location of its Properties, the economic benefits of its submarkets to
tenants, its capital structure, its access to public capital markets, the lack
of new construction of office properties in its submarkets, its access to
developable properties, the knowledge and experience of its senior management
team and its long-term relationships with large Southern California corporate
tenants, municipalities, landowners and institutional sellers. In addition,
the Company believes that it will be one of a limited number of REITs focusing
on office and industrial properties and that it will be the only REIT with a
50-year operating history concentrating primarily on suburban Southern
California office and industrial properties. In the 12 months following the
consummation of the Offering, the Company expects sources of potential growth
in cash available for distribution per share from the amount set forth under
the caption "Distribution Policy" through: (i) the further leasing of its
available space, currently approximately 400,000 rentable square feet;
(ii) the renewal of leases for approximately 60,000 rentable square feet which
expire during such period; and (iii) the acquisition of strategic properties
with Units and/or with available cash and borrowings under a $100.0 million
revolving credit facility (the "Credit Facility") which the Company expects to
enter into shortly after the Offering and its approximately $70 million of
working capital cash reserves upon consummation of the Offering. In the second
12-month period following consummation of the Offering, the Company expects
sources of potential growth in cash flow per share from: (i) contractual
increases in base rent payments from tenants; (ii) continued leasing of
available space; (iii) the acquisition of strategic properties; and (iv) the
contemplated completion of certain planned development activities. In
addition, the Company presently plans to expand one or more of its Industrial
Properties during the next two years, subject to substantial pre-leasing.
There can be no assurance, however, that the Company will achieve any growth
in cash available for distribution per share, that available space will be
leased, that leases scheduled to expire will be renewed or that the Company
will successfully acquire additional properties or complete any of its planned
development activities. See "Risk Factors--Real Estate Investment
Considerations --Risks of Real Estate Acquisition and Development."
The Company will be fully integrated in that it will perform substantially
all leasing, management and tenant improvements on an "in-house" basis and
will be self-administered and self-managed. The Company expects to qualify as
a REIT for federal income tax purposes beginning with its taxable year ending
December 31, 1997. See "Federal Income Tax Consequences--Taxation of the
Company."
RISK FACTORS
An investment in the shares of Common Stock involves various material risks.
Prospective investors should carefully consider the following risk factors, in
addition to the other information set forth in this Prospectus, in connection
with an investment in the shares of Common Stock offered hereby. Such risks
include, among others:
. conflicts of interest, particularly with the Continuing Investors
(including John B. Kilroy, Sr. and John B. Kilroy, Jr.) in connection
with the (i) Formation Transactions, (ii) operation of the Company's
ongoing businesses, including conflicts associated with the tax
consequences to Continuing Investors of sales or refinancings of any of
the Properties, which, together with certain provisions of the Operating
Partnership agreement, may influence the Company's decision to sell or
refinance, or to prepay debt secured by, certain properties, (iii)
potential election by the Company to exercise its option to purchase any
of the properties owned or controlled by one or more of the Continuing
Investors which the Company has the option to acquire (the "Excluded
Properties") and (iv) enforcement of agreements with affiliates of the
Company, any of which could result in decisions affecting the Company
that do not fully reflect interests of all of the Company's
stockholders;
. limitations on the Company's ability to withdraw as general partner of
the Operating Partnership, transfer or assign its interest in the
Operating Partnership without the consent of at least 60% of the Units
(including Units held by the Company which will represent 82.6% of all
Units outstanding upon consummation of the Offering) and without meeting
certain criteria with respect to the consideration to be received by the
Continuing Investors, or to dissolve the Operating Partnership or sell
the Office
3
<PAGE>
Property located at 2260 E. Imperial Highway, El Segundo, California, at
Kilroy Airport Center at El Segundo without the consent of more than 50%
of the Units held by limited partners (excluding Units held by the
Company), which may in each case result in the Company taking action
that is not in the best interest of all stockholders;
. taxation of the Company as a corporation if it fails to qualify as a
REIT for federal income tax purposes, the Company's liability for
certain federal, state and local income taxes in such event and the
resulting decrease in cash available for distribution;
. the inability of the Company to control the operations of the Services
Company, which could result in decisions that do not reflect the
Company's interest because the Company does not control the election of
directors or the selection of officers of the Services Company;
. the valuation of the Properties was not based on third-party appraisals
and there have not been arm's-length negotiations with respect to such
values. The consideration to be paid by the Company for the Properties
may exceed their aggregate fair market value;
. A portion of the Company's anticipated cash flow may be generated from
development activities, which are partially dependent on the
availability of development opportunities, and are subject to the risks
inherent in development as well as general economic conditions and
limitations on such activities imposed by the REIT tests, which in turn
may negatively impact the Company's ability to make distributions;
. geographic concentration of 22 of its 26 Properties in Southern
California, creating a dependence on demand for office, industrial and
retail space in such market and increasing the risk that the Company
will be materially adversely affected by general economic conditions in
a single market;
. the Company's results of operations are dependent on certain key
tenants, particularly Hughes Space & Communications, which accounted for
approximately 25.3% of the Company's total base rental revenues for the
year ending December 31, 1995 (giving pro forma effect to a recent
extension of a lease with Hughes Space & Communications with respect to
two of the Office Properties located at Kilroy Airport Center at El
Segundo), thereby increasing the potential negative impact to the
Company of downturns in the business of, or its relationship with, such
tenants. The base periods of the Hughes Space & Communications' leases
expire beginning in January 1999;
. the distribution requirements for REITs under federal income tax laws
may limit the Company's ability to finance future acquisitions,
developments and expansions without additional debt or equity financing
and may limit cash available for distribution;
. real estate investment considerations such as the effect of economic and
other conditions on real estate values, the general lack of liquidity of
investments in real estate, the ability of tenants to pay rents, the
possibility that leases may not be renewed or will be renewed on terms
less favorable to the Company, the possibility of uninsured losses,
including losses associated with earthquakes, the ability of the
Properties to generate sufficient cash flow to meet operating expenses,
including debt service, and competition in seeking properties for
acquisition and in seeking tenants, which, individually or in the
aggregate, may negatively impact the Company's ability to make
distributions;
. risks associated with debt financing, including the potential inability
to refinance mortgage indebtedness upon maturity and the potential
increase in the level of indebtedness incurred by the Company since its
organizational documents do not limit the amount of indebtedness which
the Company may incur, which may adversely affect the ability of the
Company to repay debt, particularly in the event of a downturn in the
Company's business;
. substantial influence over the affairs of the Company by certain
Continuing Investors who are directors and executive officers of the
Company, and the ability of the Board of Directors to change the
investment policies of the Company (including the Company's ratio of
debt to total market capitalization) without the consent of
stockholders, which may result in a decline in the market value of the
Common Stock;
4
<PAGE>
. potential antitakeover effects of provisions generally limiting the
actual or constructive ownership by any one person or entity of Common
Stock to 7.0% of the outstanding shares, a classified board of directors
and other charter and statutory provisions and provisions in the
Operating Partnership partnership agreement that may have the effect of
inhibiting a change of control of the Company or making it more
difficult to effect a change in management or limiting the opportunity
for stockholders to receive a premium over the market price for the
Common Stock;
. dependence on key personnel;
. the Company's cash available for distribution may be less than the
Company expects and may decrease in future periods from expected levels,
materially adversely affecting the Company's ability to make the
expected annual distributions of $1.55 per share during the 12-month
period following consummation of the Offering (which represents
approximately 91.7% of the estimated cash available for distribution for
such period) or to sustain such distribution rate in the future;
. the Company's historical operating losses for financial reporting
purposes;
. the ability of the Company to incur more debt, thereby increasing its
debt service, which could adversely affect the Company's cash flow;
. the potential liability of the Company for environmental matters and the
costs of compliance with certain governmental regulations, which may
negatively impact the Company's financial condition, results of
operations and cash available for distribution;
. immediate and substantial dilution of $12.60 per share in the net
tangible book value per share of the shares of Common Stock purchased by
new investors in the Offering;
. no prior public market for the shares of Common Stock, including the
risk that an active trading market might not develop, or if developed
might not be maintained, which may negatively impact the price at which
shares of Common Stock may be resold;
. potential adverse effects on the value of the shares of Common Stock of
fluctuations in interest rates or equity markets, which may negatively
impact the price at which shares of Common Stock may be resold and may
limit the Company's ability to raise additional equity to finance future
development; and
. the possible issuance of additional shares of Common Stock, including
2,652,374 shares of Common Stock issuable upon exchange of the Units
outstanding upon consummation of the Offering, which may adversely
affect the market price of the shares of Common Stock or result in
dilution on a per share basis of cash available for distribution.
FORMATION AND STRUCTURE OF THE COMPANY
The Company was formed in September 1996 and the Operating Partnership was
formed in October 1996. The Services Company will be formed prior to
consummation of the Offering. Prior to or simultaneous with the consummation of
the Offering, the Company, the Operating Partnership, the Services Company and
the Continuing Investors will engage in certain transactions (the "Formation
Transactions"), designed to enable the Company to continue and expand the real
estate operations of the Continuing Investors, to facilitate the Offering, to
enable the Company to qualify as a REIT for federal income tax purposes
commencing with its taxable year ending December 31, 1997 and to preserve
certain tax advantages for the existing owners of the Properties. The Formation
Transactions are as follows:
. Pursuant to an omnibus option agreement (the "Omnibus Agreement"), the
Operating Partnership may require the contribution to the Operating
Partnership of all of the Continuing Investors' interests in the
Properties (other than the Acquisition Properties), the assets used to
conduct the leasing, management and development activities (principally
office equipment), the contract rights in connection with
5
<PAGE>
development opportunities at Kilroy Airport Center Long Beach, and the
rights with respect to the purchase of each of the Acquisition
Properties, in exchange for Units representing limited partnership
interests in the Operating Partnership. The book value to the Continuing
Investors of the assets to be contributed to the Operating Partnership
is a negative $113.2 million and the value of the Units representing
limited partnership interests in the Operating Partnership to be
received by the Continuing Investors is $59.7 million, assuming a Unit
value equal to the assumed initial public offering price of $22.50 per
share. The right to acquire the Properties and the other assets
described above in exchange for Units is conditioned upon the
consummation of the Offering. Pursuant to the terms of the Omnibus
Agreement, the Operating Partnership has the right to acquire the
Properties and other assets from the Continuing Investors in exchange
for Units through December 31, 1998, the date the Omnibus Agreement
terminates. Following the consummation of the Offering and the Formation
Transactions, the Units received by the Continuing Investors will
constitute in the aggregate an approximately 17.4% limited partnership
interest in the Operating Partnership.
. John B. Kilroy, Sr. and John B. Kilroy, Jr. will acquire all of the
voting common stock of the Services Company for the aggregate purchase
price of $5,275 in cash (representing 5.0% of its economic value), and
the Operating Partnership will acquire all of the non-voting preferred
stock of the Services Company (representing 95.0% of its economic
value).
. The Company will sell shares of Common Stock in the Offering, issue
restricted shares of Common Stock to Richard E. Moran Jr., Executive
Vice President, Chief Financial Officer and Secretary of the Company
(but not a Continuing Investor) and contribute the net proceeds from the
Offering and the issuance of such restricted stock (approximately $257.0
million in the aggregate) to the Operating Partnership in exchange for
an 82.6% general partner interest in the Operating Partnership.
. The Operating Partnership will borrow approximately $84.0 million in
principal amount of long-term financing and $12.0 million in principal
amount of short-term debt pursuant to the Mortgage Loans.
. The Company, through the Operating Partnership, will apply the aggregate
of the net Offering proceeds and the Mortgage Loans toward the repayment
of existing mortgage indebtedness on certain of the Properties, the
purchase of the Acquisition Properties and the payment of its expenses
from the Offering and the Financing. See "Use of Proceeds."
. Forty-seven of the current 69 employees of KI will become employees of
the Company, the Operating Partnership and/or the Services Company,
including John B. Kilroy, Jr., the President and Chief Executive Officer
of KI, three other officers (Mr. Jeffrey Hawken, Executive Vice
President and Chief Operating Officer, Mr. Richard E. Moran Jr.,
Executive Vice President, Chief Financial Officer and Secretary, and
Mr. Campbell Hugh Greenup, General Counsel) who are not Continuing
Investors and 43 other operating and administrative employees. See
"Management."
. Concurrent with the consummation of the Offering, the Operating
Partnership or the Services Company will enter into management
agreements with respect to each of the Excluded Properties (the
"Management Agreements"). Pursuant to the terms of each of the
Management Agreements, the Operating Partnership or the Services
Company, as applicable, will have exclusive control and authority
(subject to an operating budget to be approved by the owners of each
property) over each of the Excluded Properties for a term of 24 months.
If any of the Excluded Properties are sold during the term of the
Management Agreements, then either party may terminate the respective
Management Agreement upon 30 days' prior written notice. In
consideration of the services to be provided under each of the
Management Agreements, the Company will receive a market rate monthly
property management fee as well as any applicable leasing commissions.
See "Business and Properties--Excluded Properties."
. Concurrent with the consummation of the Offering, the Company also will
enter into option agreements (together, the "Option Agreements") with
partnerships controlled by John B. Kilroy, Sr. and John B. Kilroy, Jr.
granting to the Operating Partnership the exclusive right to acquire (i)
approximately 18
6
<PAGE>
undeveloped acres located at Calabasas Park Centre for cash and (ii) the
Office Property located at North Sepulveda Boulevard, El Segundo for
cash (or for Units after the first anniversary of the Offering at the
election of the seller), and in each case pursuant to the other terms of
the respective Option Agreement. See "Business and Properties--Excluded
Properties--Calabasas Park Centre" and "--North Sepulveda Boulevard, El
Segundo" for a discussion of the purchase price and other material terms
of each Option Agreement.
The Continuing Investors are comprised of (i) seven individuals, John B.
Kilroy, Sr., his five children, John B. Kilroy, Jr., Patrice Bouzaid, Susan
Hahn, Anne McCahon and Dana Pantuso, and Marshall L. McDaniel, a long-time
employee of KI, all of whom are "accredited investors" as defined in
Regulation D ("Regulation D") under the Securities Act, and (ii) corporations,
partnerships and trusts owned, directly or indirectly, solely by such
individuals, all of which are also "accredited investors." See "Note 1.
Organization and Basis of Presentation" to the historical financial statements
of the Kilroy Group. In addition, John B. Kilroy, Sr. is the Company's
Chairman of the Board of Directors and John B. Kilroy, Jr. is President and
Chief Executive Officer and a director of the Company. Consent on behalf of
the Continuing Investors to the Formation Transactions was received on or
before November 3, 1996 pursuant to a private solicitation thereof in
compliance with Regulation D.
REASONS FOR THE REORGANIZATION OF THE COMPANY
The Company believes that the benefits of the Formation Transactions
outweigh the detriments to the Company. The benefits of the Company's REIT
status and structure, as opposed to the status and structure of the
Partnerships, include greater access to capital for refinancing and growth,
allowing stockholders to participate in real estate growth through one
business enterprise, diversification of risk and reward not available in
single asset entities, reduction in indebtedness encumbering the Properties,
greater liquidity than interests in partnerships owning individual properties,
allowing stockholders to benefit potentially from the current public market
valuation of REITs and deferral of tax liabilities to the Continuing Investors
upon contribution of the Properties.
The detriments of the Company's REIT status and structure as opposed to the
status and structure of the Partnerships include the fact that management will
be subject to conflicts of interest in the operation of the Operating
Partnership and the limited partners of the Operating Partnership will have
certain approval rights with respect to certain transactions, including (i)
the right of partners holding in the aggregate at least 60% of all interests
in the Operating Partnership to withhold consent to the withdrawal of the
general partner, or the transfer or assignment of the general partner's
interest in the Operating Partnership (see "Partnership Agreement of the
Operating Partnership--Transferability of Interests") and (ii) if limited
partners own at least 5% of the outstanding Units (including Units owned by
the Company), the right of limited partners holding in the aggregate more than
50% of all Units representing limited partnership interests in the Operating
Partnership to withhold consent to (a) the dissolution of the Operating
Partnership (other than pursuant to a merger or sale of substantially all of
the Company's assets) or (b) prior to the seventh anniversary of the
consummation of the Offering, to sell the Office Property located at 2260 E.
Imperial Highway at Kilroy Airport Center at El Segundo (see "Partnership
Agreement of the Operating Partnership--Certain Limited Partner Approval
Rights"). In addition, the Continuing Investors will have influence over
certain transactions, including with respect to the Company's acquisition,
management and leasing activities, asset sales, dispositions and refinancings
of properties and its distribution policy. Other detriments of the Company's
REIT status include a potential lower overall rate of return for an investor
who exchanges an interest in a single asset for a smaller interest in a group
of assets, lower potential of distributions from asset sales, no assurance
that the public market valuation of the Company will reflect private real
estate values, the aggregate cost to the Company of the Offering (estimated at
approximately $24.2 million, including underwriting discounts and commissions)
and the incremental costs of operating a public company. See also "Risk
Factors."
7
<PAGE>
The following diagram illustrates the structure of the Company, the Operating
Partnership and the Services Company after the consummation of the Offering and
the Formation Transactions:
Kilroy Realty Corporation
(the "Company")(1)
Kilroy Realty, L.P.
(the "Operating Partnership")
82.6% owned by the Company
as general partner
17.4% owned by the Continuing Investors
as limited partners
Kilroy Services, Inc.
(the "Services Company")
100% nonvoting
preferred stock owned by
the Operating Partnership(/2/)
100% voting common stock
owned by John B. Kilroy, Sr.
and John B. Kilroy, Jr.(/3/)
- --------
(1) 12,500,000 shares of Common Stock, representing 99.2% of the outstanding
shares of Common Stock after the Offering, will be owned by public
stockholders and 100,000 restricted shares of Common Stock, representing
0.8% of the outstanding shares of Common Stock, will be owned by Richard E.
Moran Jr., Executive Vice President, Chief Financial Officer and Secretary
of the Company (but not a Continuing Investor). If all Units of the
Operating Partnership were exchanged for Common Stock, the Company would be
owned approximately 82.0% by public stockholders, 0.6% by Mr. Moran and
17.4% by the Continuing Investors. Beginning on the second anniversary of
the consummation of the Offering, each Unit will be redeemable by the
Operating Partnership at the request of the Unitholder for cash (based on
the fair market value of an equivalent number of shares of Common Stock at
the time of such redemption) or, at the Company's option, it may exchange
Units for shares of Common Stock on a one-for-one basis, subject to certain
antidilution adjustments and exceptions; provided, however, that if the
Company does not elect to exchange such Units for shares of Common Stock, a
Unitholder that is a corporation or limited liability company may require
the Company to issue shares of Common Stock in lieu of cash, subject to the
Ownership Limit, or such other limit as provided in the Company's Articles
of Incorporation or as otherwise permitted by the Board of Directors. See
"Partnership Agreement of Operating Partnership--Redemption/Exchange
Rights." Under certain circumstances, 50% of the Units received by John B.
Kilroy, Sr., John B. Kilroy, Jr. and Kilroy Industries may be redeemed
prior to the second anniversary of the consummation of the Offering in
connection with the obligation of certain of the Continuing Investors to
indemnify the Company in connection with the Formation Transactions. See
"Formation and Structure of the Company--Allocation of Consideration in the
Formation Transactions." Executive officers, directors and other employees
of the Company will have options to acquire approximately 900,000 shares of
Common Stock which could reduce the percentage owned by public stockholders
to approximately 77.4% (assuming exchange of all outstanding Units and the
exercise of all outstanding options).
(2) Represents 95.0% of the economic interest in the Services Company.
(3) Represents 5.0% of the economic interest in the Services Company.
The Company presently anticipates that one of the Mortgage Loans (see "--The
Financing") will be incurred by a limited partnership which is wholly-owned by
the Company and the Operating Partnership and which will be structured to be a
"bankruptcy remote" financing vehicle. The Properties pledged as collateral for
such Mortgage Loan will be transferred to such limited partnership.
8
<PAGE>
BENEFITS TO THE CONTINUING INVESTORS
The principals of KI proposed the Formation Transactions to the Continuing
Investors because they believe that the benefits of the organization of the
Company for the Continuing Investors outweigh the detriments to them. Benefits
to the Continuing Investors include:
. improved liquidity of their interests in the Properties and increased
diversification of their investment;
. repayment of indebtedness in the aggregate net amount of approximately
$229.5 million resulting from the refinancing of existing mortgage
indebtedness, of which approximately $37.2 million is guaranteed by John
B. Kilroy, Sr., including $8.7 million which also is guaranteed by John
B. Kilroy, Jr., and the repayment of approximately $3.4 million of
personal indebtedness of John B. Kilroy, Sr.;
. an employment agreement between the Company and John B. Kilroy, Jr.
providing annual salary, incentive compensation (including Common Stock
options) and other benefits for his services as an officer of the
Company (see "Management--Employment Agreements"), and a grant of
options to purchase Common Stock to John B. Kilroy, Sr. (see
"Management--Stock Incentive Plan"); and
. the deferral of certain tax consequences that would arise from a sale,
or in certain circumstances a contribution, of such interests and assets
to the Company or to a third party.
DETERMINATION AND VALUATION OF OWNERSHIP INTERESTS
The Company's percentage interest in the Operating Partnership was determined
based upon the percentage of estimated cash available for distribution required
to pay estimated cash distributions resulting in an annual distribution rate
equal to 6.89% of the assumed initial public offering price of the Common Stock
of $22.50. The ownership interest in the Operating Partnership allocated to the
Company is equal to this percentage of estimated cash available for
distribution, and the remaining interest in the Operating Partnership will be
allocated to the Continuing Investors receiving Units in the Formation
Transactions. The parameters and assumptions used in deriving the estimated
cash available for distribution are described under the caption "Distribution
Policy."
In connection with the Offering, the Company did not obtain appraisals with
respect to the market value of any of the Properties or other assets that the
Company will own immediately after consummation of the Offering and the
Formation Transactions or an opinion as to the fairness of the allocation of
shares to the purchasers in the Offering. The initial public offering price
will be determined based upon the estimated cash available for distribution and
the factors discussed under the caption "Underwriting," rather than a property
by property valuation based on historical cost or current market value. This
methodology has been used because management believes it is appropriate to
value the Company as an ongoing business rather than with a view to values that
could be obtained from a liquidation of the Company or of individual properties
owned by them. See "Underwriting."
FORMATION OF KILROY SERVICES, INC.
Prior to consummation of the Offering, Kilroy Services, Inc. (the "Services
Company") will be formed under the laws of the State of Maryland to succeed to
the development activities of the Kilroy Group and to perform development
activities for the Company and third parties. John B. Kilroy, Sr. and John B.
Kilroy, Jr. together will own 100% of the voting common stock of the Services
Company, representing 5.0% of its economic value. The Operating Partnership
will own 100% of the nonvoting preferred stock of the Services Company,
representing 95.0% of its economic value. The ownership structure of the
Services Company is necessary to permit the Company to share in the income of
the activities of the Services Company and also maintain its status as a REIT.
Although the Company anticipates receiving substantially all of the economic
benefit of the businesses carried on by the Services Company through the
Company's right to receive dividends through the Operating Partnership's
investment in the Services Company's nonvoting preferred stock, the Company
will not be able to elect the Services Company's officers or directors and,
consequently, may not have
9
<PAGE>
the ability to influence the operations of the Services Company. See "Risk
Factors--Risks of Development Business and Related Activities Being Conducted
by the Services Company--Adverse Consequences of Lack of Control Over the
Businesses of the Services Company."
GROWTH STRATEGIES
The Company's objectives are to maximize growth in cash flow per share and to
enhance the value of its portfolio through effective management, operating,
acquisition and development strategies. The Company believes that opportunities
exist to increase cash flow per share: (i) by acquiring office and industrial
properties with attractive returns in strategic suburban submarkets where such
properties complement its existing portfolio; (ii) from contractual increases
in base rent; (iii) as a result of increasing rental and occupancy rates and
decreasing concessions and tenant installation costs as vacancy rates in the
Company's submarkets generally continue to decline; (iv) by developing
properties for the benefit of the Company where such development will result in
a favorable risk-adjusted return on investment; and (v) by expanding Properties
within the Company's existing industrial portfolio. The Company's ability to
achieve its growth strategy will be aided by its working capital cash reserves
of approximately $70 million upon consummation of the Offering and the proposed
Credit Facility.
The Company believes that a number of factors will enable it to achieve its
business objectives, including: (i) the opportunity to lease available space at
attractive rental rates because of increasing demand and, with respect to the
Office Properties, the present lack of new construction in the Southern
California submarkets in which most of the Properties are located; (ii) the
presence of distressed sellers and inadvertent owners (through foreclosure or
otherwise) of office and industrial properties in the Company's markets, as
well as the Company's ability to acquire properties with Units (thereby
deferring the seller's taxable gain), all of which create enhanced acquisition
opportunities; (iii) the quality and location of the Properties; and (iv) the
limited availability to competitors of capital for financing development,
acquisitions or capital improvements. Management believes that the Company is
well positioned to exploit existing opportunities because of its extensive
experience in its submarkets and its nearly 50-year presence in the Southern
California market, its seasoned management team and its proven ability to
develop, lease and efficiently manage office and industrial properties. In
addition, the Company believes that public ownership and its capital structure
will provide new opportunities for growth. There can be no assurance, however,
that the Company will be able to lease available space, complete any property
acquisitions, successfully develop any land acquired or improve the operating
results of any developed properties that are acquired. See "Business and
Properties--Development, Leasing and Management Activities."
Operating Strategies. The Company will focus on enhancing growth in cash flow
per share by: (i) maximizing cash flow from existing Properties through active
leasing, contractual base rent increases and effective property management;
(ii) managing operating expenses through the use of in-house management,
leasing, marketing, financing, accounting, legal, construction management and
data processing functions; (iii) maintaining and developing long-term
relationships with a diverse tenant group; (iv) attracting and retaining
motivated employees by providing financial and other incentives to meet the
Company's operating and financial goals; and (v) continuing to emphasize
capital improvements to enhance the Properties' competitive advantages in their
markets.
The Company believes that the strength of its leasing is demonstrated by the
Company's leasing activity since 1993. In the period from January 1, 1993 to
September 30, 1996, the Company leased or renewed leases for an aggregate of
approximately 1.0 million rentable square feet of office space and
approximately 718,000 rentable square feet of industrial space. As of December
31, 1995, the Office Properties located in the Southern California Area were
approximately 89.5% leased as compared to approximately 82.0% for the Southern
California Area, approximately 89.2% for the El Segundo submarket and
approximately 85.4% in the Long Beach submarket. In addition, at December 31,
1995, the Industrial Properties were approximately 91.4% leased as compared to
approximately 82.3% and approximately 87.1% for industrial properties located
in Los Angeles
10
<PAGE>
and Orange Counties, respectively. As of September 30, 1996, (i) the Office
Properties contained approximately 2.0 million rentable square feet and were
approximately 79.8% leased, and (ii) the Industrial Properties contained
approximately 1.3 million rentable square feet and were approximately 93.7%
leased. In addition, the number of individual lease transactions since 1992,
including the results for the nine-month period ended September 30, 1996,
averaged over 33 per year. See "Business and Properties--General," "--
Properties," "--Occupancy and Rental Information" and "--The Company's Southern
California Submarkets."
Approximately 1.0 million aggregate rentable square feet in the Properties
was leased by the Company from January 1, 1992 through December 31, 1994, a
period which management characterizes as recessionary. Based on the leases the
Company signed in 1996, and the findings in an independent study of the
Southern California real estate market commissioned by the Company, management
believes that the recent trend toward increasing rental rates in Class A office
and industrial buildings in the Company's Southern California submarkets
presents significant opportunities for growth. In addition, approximately 66.5%
of the Company's net rentable square feet is subject to leases expiring in 2000
or beyond, when management expects asking rents for the respective Properties
to be higher than the rents paid pursuant to such leases. In addition, as of
December 31, 1995 approximately 36.7% of the Company's total base rent
(representing approximately 23.7% of the aggregate net rentable square feet of
the Properties) was attributable to leases with Consumer Price Index increases
and approximately 28.1% of the Company's total base rent (representing
approximately 30.5% of the aggregate net rentable square feet of the
Properties) was attributable to leases with other specified contractual
increases. No assurance can be given, however, that new leases will reflect
rental rates greater than or equal to current rental rates or that current or
future economic conditions will support higher rental rates. See "Risk
Factors--Real Estate Investment Considerations."
Acquisition Strategies. The Company will seek to increase its cash flow per
share by acquiring additional quality office and industrial properties,
including properties that may: (i) provide attractive initial yields with
significant potential for growth in cash flow from property operations; (ii)
are strategically located, of high quality and competitive in their respective
submarkets; (iii) are located in the Company's existing submarkets and/or in
other strategic submarkets where the demand for office and industrial space
exceeds available supply; or (iv) have been under-managed or are otherwise
capable of improved performance through intensive management and leasing that
will result in increased occupancy and rental revenues. The Company believes
that the Southern California market is an established and mature real estate
market in which property owners generally have a low tax basis (and,
accordingly, the potential for large taxable gains) in their properties.
Management believes that the Company's extensive experience, capital structure
and ability to acquire properties for Units, and thereby defer a seller's
taxable gain, if any, will enhance the ability of the Company to consummate
transactions quickly and to structure more competitive acquisitions than other
real estate companies in the market which lack its access to capital or the
ability to issue Units. See "Business and Properties--Development, Leasing and
Management Activities."
The Company has entered into an agreement to acquire the two office
properties that comprise Phase I of Kilroy Airport Center Long Beach. Kilroy
Airport Center Long Beach Phase I was developed by the Company in 1987 and has
been leased and managed by the Company since its inception. In addition, the
Company has entered into an agreement to purchase an office property located in
Thousand Oaks, California. The Company also has entered into an agreement to
acquire a three building office and industrial complex located in Anaheim,
California. In addition, KI, on behalf of the Operating Partnership, has
acquired a multi-tenant industrial property located in Garden Grove,
California. The acquisition of these properties (the "Acquisition Properties")
by the Company is expected to occur concurrently with the consummation of the
Offering and, accordingly, the Acquisition Properties are included in the
discussion of the Properties included throughout this Prospectus. There can be
no assurance, however, that the Company will be able to complete any property
acquisitions, including the acquisition of the Acquisition Properties,
successfully develop any land acquired or improve the operating results of any
developed properties that are acquired. See "Business and Properties--
Acquisition Properties."
Development Strategies. The Company's interests in the Development Properties
provide it with significant growth opportunities.
11
<PAGE>
The Company is the master ground lessee of, and has sole development rights
in, Kilroy Airport Center Long Beach, a planned four-phase, approximately 53-
acre property entitled for office, research and development,
light industrial and other commercial projects at which the Company will own,
upon consummation of the Offering, all five existing Office Properties and
manages all ongoing leasing and development activities. The Company developed
Phases I and II in 1987 and 1989/1990, respectively, encompassing an aggregate
of approximately 620,000 rentable square feet of office space. The Company
controls development of the Phase III and IV parcels while receiving rental
revenue in connection with such parcels under current leases expiring in July
2009 and September 1998, respectively, in amounts sufficient to cover a
substantial portion of the predevelopment carrying costs. Phases III and IV
presently are planned to be developed on the projects' approximately 24
undeveloped acres and are entitled for an aggregate of approximately
900,000 rentable square feet. The Company is currently in discussions with
several prospective tenants for office space presently planned to be included
in Kilroy Long Beach Phase III. Development of each of Phases III and IV is
subject to substantial predevelopment leasing activity and, therefore, the
timing for the commencement of development of Phases III and IV is uncertain.
No assurance can be given that the Company will commence such development when
planned, or that, if commenced, such development will be completed. See "Risk
Factors--Real Estate Investment Considerations--Risks of Real Estate
Acquisition and Development" and "Business and Properties--Development, Leasing
and Management Activities--Kilroy Long Beach."
In addition, certain of the Industrial Properties can support additional
development, and the Company presently is planning to develop in the next two
years, subject to substantial pre-leasing, approximately 105,000 rentable
square feet of such additional space.
The Company may engage in the development of other office and/or industrial
properties primarily in Southern California submarkets when market conditions
support a favorable risk-adjusted return on such development. The Company's
activities with third-party owners in Southern California are expected to give
the Company further access to development opportunities. There can be no
assurance, however, that the Company will be able to successfully develop any
of the Development Properties or any other properties. See "Business and
Properties--Development, Leasing and Management Activities."
Financing Policies. The Company's financing policies and objectives are
determined by the Company's Board of Directors. The Company presently intends
to limit the ratio of debt to total market capitalization (total debt of the
Company as a percentage of the market value of issued and outstanding shares of
Common Stock, including interests exchangeable therefor, plus total debt) to
approximately 50%. However, such objectives may be altered without the consent
of the Company's stockholders, and the Company's organizational documents do
not limit the amount of indebtedness that the Company may incur. Upon
completion of the transactions outlined under the caption "Formation and
Structure of the Company," total debt will constitute approximately 21.9% of
the total market capitalization of the Company (assuming an initial public
offering price of $22.50 per share of Common Stock). In addition, upon
consummation of the Offering, the Company will have working capital cash
reserves of approximately $70 million. The Company anticipates that upon
consummation of the Offering all but approximately $12.0 million of its
permanent indebtedness will bear interest at fixed rates. The Company intends
to utilize one or more sources of capital for future acquisitions, including
development and capital improvements, which may include undistributed cash
flow, borrowings under the proposed Credit Facility, the Company's
approximately $70 million of working capital cash reserves out of the net
proceeds of the Offering, issuance of debt or equity securities and other bank
and/or institutional borrowings. There can be no assurance, however, that the
Company will be able to obtain capital for any such acquisitions, developments
or improvements on terms favorable to the Company. See "--Growth Strategies,"
"The Company--Growth Strategies" and "Business and Properties--Development,
Leasing and Management Activities."
12
<PAGE>
THE OFFICE AND INDUSTRIAL PROPERTIES
The following table sets forth certain information relating to each of the
Properties as of December 31, 1995, unless indicated otherwise. This table
gives pro forma effect to a recent extension of one of the leases with Hughes
Space & Communications with respect to two of the Office Properties located at
Kilroy Airport Center at El Segundo as if such lease renewal had occurred on
January 1, 1995. After completion of the Formation Transactions, the Company
(through the Operating Partnership) will own a 100% interest in all of the
Office and Industrial Properties other than the five Office Properties located
at Kilroy Airport Center Long Beach and the three Office Properties located at
the SeaTac Office Center, each of which are held subject to ground leases
expiring in 2035 and 2062 (assuming the exercise of the Company's options to
extend such lease), respectively.
<TABLE>
<CAPTION>
AVERAGE
PERCENTAGE PERCENTAGE BASE
NET LEASED 1995 OF 1995 RENT
RENTABLE AS OF BASE 1995 TOTAL PER EFFECTIVE
SQUARE 12/31/95 RENT EFFECTIVE BASE SQ. FT. RENT PER
PROPERTY LOCATION YEAR BUILT FEET (%)(1) ($000)(2) RENT($000)(3) RENT (%) ($)(4) SQ. FT. ($)(5)
----------------- ---------- --------- ---------- --------- ------------- ---------- ------- --------------
<C> <C> <C> <C> <C> <C> <C> <C> <C>
Office Properties:
Kilroy Airport Center at El
Segundo
2250 E. Imperial Highway(8).... 1983 291,187 80.9 4,316 4,042 11.5 18.32 17.16
2260 E. Imperial Highway)(9)... 1983 291,187 100.0 7,160 6,545 19.1 24.59 22.48
2240 E. Imperial Highway
El Segundo, California(10)..... 1983 118,933 100.0 1,130 1,121 3.0 9.50 9.43
Kilroy Airport Center Long Beach
3900 Kilroy Airport Way(11).... 1987 126,840 94.0 2,282 2,092 6.1 19.14 17.55
3880 Kilroy Airport Way(11).... 1987 98,243 100.0 1,296 1,022 3.5 13.19 10.40
3760 Kilroy Airport Way........ 1989 165,278 92.1 3,372 2,807 9.0 22.16 18.45
3780 Kilroy Airport Way........ 1989 219,745 63.6 3,465 3,005 9.2 24.79 21.50
3750 Kilroy Airport Way
Long Beach, California......... 1989 10,457 100.0 75 28 0.2 7.21 2.66
SeaTac Office Center
18000 Pacific Highway.......... 1974 207,092 58.7 1,799 1,510 4.8 14.80 12.42
17930 Pacific Highway.......... 1980 210,899 -- -- -- -- -- --
17900 Pacific Highway
Seattle, Washington........... 1980 113,605 87.7 1,896 1,820 5.0 19.02 18.26
La Palma Business Center
4175 E. La Palma Avenue
Anaheim, California(11)....... 1985 42,790 93.2 493 475 1.3 12.37 11.92
2829 Townsgate Road
Thousand Oaks, California(11).. 1990 81,158 100.0 1,888 1,760 5.0 23.26 21.69
185 S. Douglas Street
El Segundo, California(12)..... 1978 60,000 100.0 1,313 898 3.5 21.89 14.96
--------- ----- ------ ------ ---- ----- -----
Subtotal/Weighted Average 2,037,414 77.0 30,485 27,125 81.2 19.44 17.30
--------- ----- ------ ------ ---- ----- -----
Industrial Properties:
2031 E. Mariposa Avenue
El Segundo, California......... 1954 192,053 100.0 1,556 1,296 4.1 8.10 6.75
3340 E. La Palma Avenue
Anaheim, California............ 1966 153,320 100.0 881 790 2.3 5.74 5.16
2260 E. El Segundo Boulevard
El Segundo, California(13)..... 1979 113,820 100.0 553 510 1.5 4.86 4.48
2265 E. El Segundo Boulevard
El Segundo, California......... 1978 76,570 100.0 554 493 1.5 7.23 6.44
1000 E. Ball Road
Anaheim, California(14)........ 1956 100,000 100.0 639 519 1.7 6.39 5.19
1230 S. Lewis Street
Anaheim, California............ 1982 57,730 100.0 303 284 0.8 5.25 4.92
12681/12691 Pala Drive
Garden Grove, California ...... 1970 84,700 82.6 476 454 1.3 6.81 6.48
<CAPTION>
TENANTS LEASING
PERCENTAGE 10% OR MORE OF
LEASED NET RENTABLE
AS OF SQUARE FEET PER
9/30/96 PROPERTY
(%)(6) AS OF 9/30/96(7)
---------- ----------------
<C> <S>
83.9 Hughes Space &
Communications
(33.0%)
100.0 Hughes Space &
Communications
(100.0%)
100.0 Hughes Space &
Communications
(94.6%)
94.0 McDonnell
Douglas
Corporation
(50.9%), Olympus
America, Inc.
(18.6%)
100.0 Devry, Inc.
(100.0%)
82.6 R.L. Polk & Co.
(9.8%)
92.2 SCAN Health Plan
(20.4%), Zelda
Fay Walls (12.7%)
100.0 Oasis Cafe
(37.1%),
Keywanfar &
Baroukhim
(16.1%),
SR Impressions
(15.0%)
60.0 Principal Mutual
(8.8%),
Lynden (8.8%),
Rayonier (8.0%)
-- --
87.7 Key Bank
(41.9%)(15),
Northwest
Airlines
(24.9%),
City of Sea Tac
(17.2%)
91.6 Peryam & Kroll
(26.7%),
DMV/VPI
Insurance Group
(26.5%),
Midcom
Corporation
(15.5%)
100.0 Worldcom, Inc.
(34.2%), Data
Select Systems,
Inc. (13.0%),
Pepperdine
University
(12.7%),
Anheuser Busch,
Inc. (12.0%)
100.0 Northwest
Airlines, Inc.
(100%)
-----
79.8
-----
Mattel, Inc.
100.0 (100%)
Furon Co., Inc.
59.2 (59.2%)
Ace Medical Co.
100.0 (100%)
100.0 MSAS Cargo
Intl., Inc.
(100%)
100.0 Allen-Bradley
Company (100%)
100.0 Extron
Electronics (100%)
82.6 Rank Video Services America, Inc.
(82.6%)
</TABLE>
(footnotes on next page)
13
<PAGE>
<TABLE>
<CAPTION>
AVERAGE
PERCENTAGE PERCENTAGE BASE PERCENTAGE
NET LEASED 1995 OF 1995 RENT LEASED
RENTABLE AS OF BASE 1995 TOTAL PER EFFECTIVE AS OF
SQUARE 12/31/95 RENT EFFECTIVE BASE SQ. FT. RENT PER 9/30/96
PROPERTY LOCATION YEAR BUILT FEET (%)(1) ($000)(2) RENT($000)(3) RENT (%) ($)(4) SQ. FT. ($)(5) (%)(6)
----------------- ---------- --------- ---------- --------- ------------- ---------- ------- -------------- ----------
<C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2270 E. El Segundo
Boulevard
El Segundo,
California........... 1975 7,500 100.0 129 129 0.3 17.17 17.17 --
5115 N. 27th Avenue
Phoenix,
Arizona(16).......... 1962 130,877 100.0 640 612 1.7 4.89 4.68 100.0
12752-12822 Monarch
Street
Garden Grove,
CA(11)(17)........... 1970 277,037 76.4 727 715 1.9 3.43 3.38 100.0
4155 E. La Palma
Avenue
Anaheim, CA(11)(17).. 1985 74,618 100.0 325 237 0.9 4.36 3.18 100.0
4125 La Palma Avenue
Anaheim, CA(11)(17).. 1985 69,472 65.6 319 302 0 .8 7.00 6.63 100.0
--------- ----- ------ ------ ----- ----- ----- -----
Subtotal/Weighted
Average 1,337,697 92.2 7,102 6,341 18.8 5.76 5.14 93.7
--------- ----- ------ ------ ----- ----- ----- -----
Office & Industrial--
All Properties 3,375,111 83.0 37,587 33,466 100.0 13.42 11.95 85.3
--------- ----- ------ ------ ----- ----- ----- -----
<CAPTION>
TENANTS LEASING
10% OR MORE OF
NET RENTABLE
SQUARE FEET PER
PROPERTY
AS OF 9/30/96(7)
--------------------
<S>
--
Festival
Markets, Inc.
(100%)
Cannon Equipment
(60%),
Vanco (16.4%)
Bond
Technologies
(29.6%),
NovaCare
Orthotics
(24.0%),
Specialty
Restaurants
Corp.
(21.7%)
Household
Finance
Corporation
(59%), CSTS
(34%)
</TABLE>
- -------
(1) Based on all leases at the respective Properties in effect as of December
31, 1995.
(2) Total base rent for the year ended December 31, 1995, determined in
accordance with generally accepted accounting principles ("GAAP"). All
leases at the Industrial Properties are written on a triple net basis.
Unless otherwise indicated, all leases at the Office Properties are
written on a full service gross basis, with the landlord obligated to pay
the tenant's proportionate share of taxes, insurance and operating
expenses up to the amount incurred during the tenant's first year of
occupancy ("Base Year") or a negotiated amount approximating the tenant's
pro rata share of real estate taxes, insurance and operating expenses
("Expense Stop"). Each tenant pays its pro rata share of increases in
expenses above the Base Year or Expense Stop.
(3) Aggregate base rent received over their respective terms from all leases
in effect at December 31, 1995 minus all tenant improvements, leasing
commissions and other concessions for all such leases, divided by the
terms in months for such leases, multiplied by 12. Tenant improvements,
leasing commissions and other concessions are estimated using the same
methodology used to calculate effective rent for the Properties as a whole
in the charts set forth under the caption "Business and Properties--
General."
(4) Base rent for the year ended December 31, 1995 divided by net rentable
square feet leased at December 31, 1995.
(5) Effective rent at December 31, 1995 divided by net rentable square feet
leased at December 31, 1995.
(6) Based on all leases at the respective Properties dated on or before
September 30, 1996. Occupancy for all Properties at December 31, 1996 was
approximately 88.2%.
(7) Excludes office space leased by the Company.
(8) For this Property, a lease with Hughes Space & Communications, for
approximately 96,000 rentable square feet, and with SDRC Software Products
Marketing Division, Inc., for approximately 6,800 rentable square feet,
are written on a full service gross basis except that there is no Expense
Stop.
(9) For this Property, the lease with Hughes Space & Communications is written
on a modified full service gross basis under which Hughes Space &
Communications pays for all utilities and other internal maintenance costs
with respect to the leased space and, in addition, pays its pro rata share
of real estate taxes, insurance, and certain other expenses including
common area expenses.
(10) For this Property, leases with Hughes Space & Communications for
approximately 101,000 rentable square feet are written on a full service
gross basis except that there is no Expense Stop.
(11) This Property is an Acquisition Property.
(12) For this Property, the lease is written on a triple net basis.
(13) This Industrial Property was vacant until April 1995. The tenant began
paying rent in mid-October 1995 at an annual rate of $4.40 per rentable
square foot.
(14) The tenant subleased this Industrial Property on May 15, 1996 to RGB
Systems, Inc. (doing business as Extron Electronics), the tenant of the
Property located at 1230 S. Lewis Street, Anaheim, California, which is
adjacent to this Property. The sublease is at an amount less than the
current lease rate, and the tenant is paying the difference between the
current lease rate and the sublease rate. The lease and the sublease
terminate in April 1998. Extron Electronics has executed a lease for this
space from May 1998 through April 2005 at the current lease rate. Extron
Electronics continues to occupy the space located at 1230 S. Lewis Street.
(15) This lease terminates on December 31, 1996.
(16) This Industrial Property was originally designed for multi-tenant use and
currently is leased to a single tenant and utilized as an indoor multi-
vendor retail marketplace.
(17) The leases for this Industrial Property are written on a modified triple
net basis, with the tenants responsible for estimated allocated common
area expenses.
14
<PAGE>
THE COMPANY'S SOUTHERN CALIFORNIA SUBMARKETS
The Company retained Robert Charles Lesser & Co. ("Lesser"), nationally
recognized experts in real estate consulting and urban economics, to study the
Company's Southern California submarkets, and the discussion of such submarkets
below is based upon Lesser's findings. While the Company believes that these
estimates of economic trends are reasonable, there can be no assurance that
these trends will in fact continue.
The Company's Office and Industrial Properties are primarily located in Los
Angeles, Orange and Ventura Counties which, together with Riverside and San
Bernardino Counties, comprise the second largest Consolidated Metropolitan
Statistical Area in the United States. Management believes that the region's
economy, which in 1994 commenced recovery from a four-year economic recession,
and the continuing growth in the region's foreign trade, tourism and
entertainment industries, provide an attractive environment for owning and
operating Class A office and industrial properties since occupancy rates and
asking rents generally are increasing. In addition, since 1992 there has been
virtually no increase in the region's office space, while the region's demand
for quality industrial space and low vacancy rates has spurred modest new
construction of industrial properties.
Vacancy rates in the office space market in the Southern California Area are
trending downward from a high in 1991 and 1992 of nearly 20.0% to a level at
the end of 1996 of under 17.0%. At September 30, 1996, the vacancy rate for the
Southern California Area Office Properties was approximately 6.9%. Vacancy
rates in the industrial space market in the Southern California Area have
decreased from a high of nearly 14% in 1992 to approximately 7.6% at December
31, 1996. At September 30, 1996, the vacancy rate for the Southern California
Area Industrial Properties was approximately 7.0%.
As of December 31, 1995, the Southern California Area had a total population
of approximately 15.6 million people which accounted for approximately 5.9% of
the total U.S. population. Beginning in 1990, annual population growth in the
region has averaged approximately 217,000 persons. Of the total population at
December 31, 1995, approximately 9.2 million and 2.6 million persons lived in
Los Angeles and Orange Counties, respectively, the counties in which all but
five of the Properties are located. Annual estimated growth in population over
the next five years in these counties is expected to be approximately 94,000
and 32,000 persons, respectively. See "Business and Properties--The Company's
Southern California Submarkets."
THE FINANCING
The Company, on behalf of the Operating Partnership, has obtained a written
commitment for mortgage loans of $96.0 million (the "Mortgage Loans") from
Morgan Guaranty Trust Company of New York, the closing of which is a condition
to the consummation of the Offering. The proceeds of the Mortgage Loans will
principally be used to repay existing indebtedness on the Properties. The
Mortgage Loans consist of: (i) an $84.0 million mortgage loan secured by
certain of the Properties (the "$84.0 Million Loan") and (ii) a $12.0 million
mortgage loan secured by the SeaTac Office Center (the "SeaTac Loan"). The
$84.0 Million Loan requires monthly principal and interest payments based on a
fixed rate equal to the sum of the interest rate for U.S. Treasury Securities
maturing 8 years from the date of the closing of the $84.00 Million Loan plus
1.75%, and will amortize over a 25-year period, maturing in 2005. The Company
presently anticipates that the $84.0 Million Loan will be incurred by a limited
partnership which is wholly-owned by the Company and the Operating Partnership
and structured to be a "bankruptcy remote" financing vehicle. The Properties to
be pledged as collateral for the $84.0 Million Loan will be transferred to such
limited partnership. The SeaTac Loan requires monthly payment of interest
computed at a variable rate and has a term of six months. Principal and
interest under the SeaTac Loan will be full recourse to the Company. The
Company has financed the SeaTac Office Center in this manner in order to
provide flexibility to obtain additional financing secured by the SeaTac Office
Center if the Company leases additional space at this Property. In connection
with the $84.0 Million Loan, the Company will pay fees equal to .50% of the
total principal amount, or $420,000, and will reimburse the lender for its
costs and expenses. In connection with the SeaTac Loan, the Company will pay
fees equal to 1.5% of the total principal amount, or $180,000, and will
reimburse the lender for its costs and expenses.
15
<PAGE>
The Company is currently negotiating with Morgan Guaranty Trust Company of
New York, on behalf of the proposed lenders, a $100.0 million revolving Credit
Facility (the Credit Facility, together with the Mortgage Loans, the
"Financing") which the Company, on behalf of the Operating Partnership, expects
to enter into shortly after the consummation of the Offering. The availability
of funds under the Credit Facility is expected to be subject to the value of
collateral securing the facility and the Company's compliance with a number of
customary financial and other covenants on an ongoing basis. The Company
expects that, initially, approximately $50.0 million will be available under
the Credit Facility. The Company also will have working capital cash reserves
of approximately $70 million and capital expenditure cash reserves of
approximately $2.7 million upon consummation of the Offering. The Credit
Facility and the working capital cash reserves will be used primarily to
finance acquisitions of additional properties. The Credit Facility will also be
available to refinance the SeaTac Loan. Payment of principal and interest on
the Credit Facility is expected to be secured by certain of the Properties. In
addition, borrowings under the Credit Facility are expected to be recourse
obligations to the Company and the Operating Partnership. In connection with
the Credit Facility, the Operating Partnership will pay fees equal to 1.0% of
the total commitment under the Credit Facility, or $1.0 million, and will
reimburse the lender for its costs and expenses.
If the initial public offering price for the Common Stock is less than the
assumed offering price of $22.50 per share, the Company expects to make up any
shortfall between the aggregate net proceeds of the Offering and the Mortgage
Loans, and the intended uses thereof, by reducing its working capital cash
reserves. See "Use of Proceeds."
DISTRIBUTION POLICY
The Company presently intends to make regular quarterly distributions to
holders of its Common Stock. The first distribution, for the period commencing
upon the consummation of the Offering and ending March 31, 1997, is anticipated
to be approximately $ per share (which is equivalent to a quarterly
distribution of $.3875 per share or an annual distribution of $1.55 per share)
which results in an initial annual distribution rate of 6.89%, based on an
initial public offering price of $22.50 per share. The Company does not expect
to change its estimated distribution rate if any of the Underwriters' over-
allotment option is exercised. The Company currently expects to distribute
approximately 91.7% of estimated cash available for distribution for the 12
months following the consummation of the Offering. Units and shares of Common
Stock will receive equal distributions. The Board of Directors may vary the
percentage of cash available for distribution which is distributed if the
actual results of operations, economic conditions or other factors differ from
the assumptions used in the Company's estimates.
The Company established its initial distribution rate based on estimated cash
flow for the 12 months following the consummation of the Offering and the
Formation Transactions which the Company anticipates to be available for
distribution, taking into account rents under existing leases, estimated
operating expenses, capital improvements, debt service requirements, known
contractual commitments, and estimated amounts for recurring tenant
improvements and leasing commissions. To maintain its qualification as a REIT,
the Company must make annual distributions to stockholders of at least 95% of
its taxable income, determined without regard to the deduction for dividends
paid and by excluding any net capital gains. Under certain circumstances, the
Company may be required to make distributions in excess of cash flow available
for distribution to meet such distribution requirements. See "Distribution
Policy."
The Company's estimate of the initial distribution rate for the Common Stock
was based on the Company's estimate of cash available for distribution, which
is being made solely for the purpose of setting the initial distribution rate
and is not intended to be a projection or forecast of the Company's results of
operations or of its liquidity. The Company believes that its estimate of cash
available for distribution constitutes a reasonable basis for setting the
initial distribution rate. However, no assurance can be given that the
Company's estimate will be accurate. See "Risk Factors--Distribution Payout
Percentage."
16
<PAGE>
TAX STATUS OF THE COMPANY
The Company intends to elect to be taxed as a REIT under Sections 856 through
860 of the Internal Revenue Code of 1986, as amended (the "Code"), commencing
with its taxable year ending December 31, 1997 and believes its organization
and proposed method of operation will enable it to meet the requirements for
qualification as a REIT. To maintain REIT status, an entity must meet a number
of organizational and operational requirements, including a requirement that it
currently distribute at least 95% of its REIT taxable income (determined
without regard to the dividends paid deduction and by excluding net capital
gains) to its stockholders. As a REIT, the Company generally will not be
subject to federal income tax on net income it distributes currently to its
stockholders. If the Company fails to qualify as a REIT in any taxable year, it
will be subject to federal income tax at regular corporate rates and may not be
able to qualify as a REIT for the four subsequent taxable years. See "Risk
Factors--Adverse Consequences of Failure to Qualify as a REIT" and "Federal
Income Tax Considerations." Even if the Company qualifies for taxation as a
REIT, the Company may be subject to certain federal, state and local taxes on
its income and property. In addition, the Services Company will be subject to
federal and state income tax at regular corporate rates on its net income.
THE OFFERING
<TABLE>
<S> <C>
Common Stock Offered Hereby.. 12,500,000 shares
Common Stock Outstanding af-
ter the Offering............ 15,252,374 shares(/1/)
Use of Proceeds.............. Together with the net proceeds of the Mortgage
Loans, repayment of approximately $229.5 million
(including accrued interest and loan fees) of
existing mortgage and other indebtedness,
approximately $49.0 million for the purchase of
the Acquisition Properties and the remaining
approximately $78.2 million to be available for
expenses of the Formation Transactions, expenses
of the Financing, expenses of the Offering and
as working capital.
NYSE symbol.................. KRC
</TABLE>
- --------
(1) Includes 2,652,374 Units (calculated on an as-exchanged basis) issued in
connection with the Formation Transactions and 100,000 restricted shares of
Common Stock to be issued to Richard E. Moran Jr., Executive Vice
President, Chief Financial Officer and Secretary of the Company (but not a
Continuing Investor) pursuant to the Stock Incentive Plan, but excludes
1,500,000 additional shares of Common Stock reserved for issuance as
restricted shares of Common Stock, or upon the exercise of options granted,
pursuant to the Stock Incentive Plan (as defined herein). See "Management--
Stock Incentive Plan" and "Shares Eligible for Future Sale."
17
<PAGE>
SUMMARY FINANCIAL DATA
The following table sets forth certain financial data on a pro forma basis
for the Company, and on an historical basis for the Kilroy Group, which consist
of the combined financial statements of the Kilroy Group (the "Combined
Financial Statements") whose financial results will be consolidated in the
historical and pro forma financial statements of the Company. The financial
data should be read in conjunction with the historical and pro forma financial
statements and notes thereto included in this Prospectus. The combined
historical summary financial data as of December 31, 1994, 1995 and September
30, 1996 and for each of the three years in the period ended December 31, 1995
and the nine months ended September 30, 1995 and 1996 have been derived from
the Combined Financial Statements of the Kilroy Group audited by Deloitte &
Touche LLP, independent public accountants, whose report with respect thereto
is included elsewhere in this Prospectus. The selected combined historical
financial and operating information as of December 31, 1993, 1992 and 1991, and
for the years ended December 31, 1992 and 1991, have been derived from the
unaudited Combined Financial Statements of the Kilroy Group and, in the opinion
of management, include all adjustments, consisting only of normal recurring
adjustments, necessary for a fair statement of the operating information for
the unaudited periods. The pro forma data assume the completion of the
Formation Transactions, including acquisition of the Acquisition Properties and
the consummation of the Offering (based upon the midpoint of the range of the
initial public offering price set forth on the cover page of this Prospectus)
and the Financing, and use of the aggregate net proceeds therefrom as described
under "Use of Proceeds" as of the beginning of the periods presented for the
operating data and as of the balance sheet date for the balance sheet data. The
pro forma financial data does not give effect to the recent extension of the
tenant lease with Hughes Space & Communications with respect to space leased in
the Office Property located at 2250 E. Imperial Highway, El Segundo, California
and a portion of the space leased in the Office Property located at 2240 E.
Imperial Highway, El Segundo, California. The pro forma financial data are not
necessarily indicative of what the actual financial position or results of
operations of the Company would have been as of and for the periods indicated,
nor does it purport to represent the future financial position and results of
operations.
18
<PAGE>
THE COMPANY (PRO FORMA) AND KILROY GROUP (HISTORICAL)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
-------------------------------- --------------------------------------------------------------
COMBINED HISTORICAL COMBINED HISTORICAL
PRO FORMA --------------------- PRO FORMA ----------------------------------------------------
1996 1996 1995 1995 1995 1994 1993 1992 1991
--------- ------------ -------- --------- --------- --------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA:
Rental income.......... $ 30,635 $ 25,156 $ 24,056 $39,141 $ 32,314 $ 31,220 $ 34,239 $ 32,988 $ 29,300
Tenant reimbursements.. 3,326 2,583 2,377 3,886 3,002 1,643 4,916 5,076 5,416
Parking income......... 1,317 1,317 1,193 1,582 1,582 1,357 1,360 1,286 1,358
Development and
management fees....... -- 580 926 -- 1,156 919 751 882 779
Sale of air rights..... -- -- 4,456 4,456 4,456 -- -- -- --
Lease termination
fees.................. -- -- -- 100 100 300 5,190 48 --
Other income........... 364 65 211 705 298 784 188 221 206
-------- ---------- -------- ------- --------- --------- --------- --------- --------
Total revenues......... 35,642 29,701 33,219 49,870 42,908 36,223 46,644 40,501 37,059
-------- ---------- -------- ------- --------- --------- --------- --------- --------
Property expenses...... 6,411 5,042 5,045 8,668 6,834 6,000 6,391 6,384 6,971
Real estate taxes
(refunds)............. 1,457 970 1,088 2,002 1,416 (448) 2,984 3,781 2,377
General and
administrative
expense............... 3,100 1,607 1,554 4,133 2,152 2,467 1,113 1,115 841
Ground lease........... 832 579 542 1,127 789 913 941 854 726
Development expenses... -- 584 564 -- 737 468 581 429 255
Option buy-out cost.... 3,150 3,150 -- -- -- -- -- -- --
Interest expense....... 5,937 16,234 18,660 7,916 24,159 25,376 25,805 26,293 26,174
Depreciation and
amortization.......... 7,668 6,838 7,171 10,580 9,474 9,962 10,905 10,325 9,116
-------- ---------- -------- ------- --------- --------- --------- --------- --------
Total expenses......... 28,555 35,004 34,624 34,426 45,561 44,738 48,720 49,181 46,460
-------- ---------- -------- ------- --------- --------- --------- --------- --------
Income (loss) before
equity in income of
subsidiary, minority
interest and
extraordinary item.... 7,087 (5,303) (1,405) 15,444 (2,653) (8,515) (2,076) (8,680) (9,401)
Equity in income (loss)
of subsidiary......... (58) -- 136 -- -- -- -- --
Minority interest...... (1,223) -- (2,711) -- -- -- -- --
Extinguishment of
debt.................. -- 20,095 15,267 -- 15,267 1,847 -- -- --
-------- ---------- -------- ------- --------- --------- --------- --------- --------
Net income (loss)...... $ 5,806 $ 14,792 $ 13,862 $12,869 $ 12,614 $ (6,668) $ (2,076) $ (8,680) $ (9,401)
======== ========== ======== ======= ========= ========= ========= ========= ========
Pro forma net income
per share(1).......... $ 0.46 $ 1.02
======== =======
<CAPTION>
DECEMBER 31,
----------------------------------------------------
SEPTEMBER 30, 1996 COMBINED HISTORICAL
----------------------- ----------------------------------------------------
COMBINED
PRO FORMA HISTORICAL 1995 1994 1993 1992 1991
--------- ------------ --------- --------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Real estate assets,
before accumu-
lated depreciation and
amortization.......... $285,150 $ 227,127 $ 224,983 $ 223,821 $ 222,056 $ 221,423 $220,363
Total assets........... 261,045 131,062 132,857 143,251 148,386 161,008 169,147
Mortgages and loans.... 96,000 224,046 233,857 250,059 248,043 250,792 245,645
Total liabilities...... 109,981 244,285 254,683 273,585 263,346 263,156 254,786
Minority interest...... 26,285
Stockholders' equity
(deficit)............. 124,779 (113,223) (121,826) (130,334) (114,960) (102,148) (85,639)
</TABLE>
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31,
----------------------------------- ------------------------------------------
COMBINED HISTORICAL COMBINED HISTORICAL
PRO FORMA ---------------------- PRO FORMA -------------------------------
1996 1996 1995 1995 1995 1994 1993
----------------------- ---------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
OTHER DATA:
Funds from
Operations(2)......... $18,243 $4,685 $1,310 $22,018 $2,365 $1,447 $3,639
Cash flows from:
Operating activities... -- 5,528 9,270 -- 10,071 6,607 11,457
Investing activities... -- (2,140) (446) -- (1,162) (1,765) 2,028
Financing activities... -- (3,388) (8,824) -- (8,909) (4,842) (13,485)
Office Properties:
Square footage......... 2,037,414 1,688,383 1,688,383 2,037,414 1,688,383 1,688,383 1,688,383
Occupancy.............. 79.8% 76.3% 72.8% 77.0% 72.8% 73.3% 81.0%
Industrial Properties:
Square footage......... 1,337,697 916,570 916,570 1,337,697 916,570 916,570 916,570
Occupancy.............. 93.7% 90.8% 98.4% 92.2% 98.4% 79.7% 77.6%
</TABLE>
- -------
(1) Pro forma net income per share equals pro forma net income divided by the
12,600,000 shares of Common Stock outstanding after the Offering.
(2) As defined by the National Association of Real Estate Investment Trusts
("NAREIT"), Funds from Operations represents net income (loss) before
minority interest of unit holders (computed in accordance with GAAP),
excluding gains (or losses) from debt restructuring and sales of property,
plus real estate related depreciation and amortization (excluding
amortization of deferred financing costs) and after adjustments for
unconsolidated partnerships and joint ventures. Non-cash adjustments to
Funds from Operations were as follows: in all periods, depreciation and
amortization; in 1996, 1995 and 1994, gains on extinguishment of debt; and
in pro forma 1996 and 1995, non-cash compensation. Further, in 1996 and
1995 non-recurring items (sale of air rights and option buy-out cost) were
excluded. Management considers Funds from Operations an appropriate measure
of performance of an equity REIT because industry analysts have accepted it
as such. The Company computes Funds from Operations in accordance with
standards established by the Board of Governors of NAREIT in its March 1995
White Paper, which may differ from the methodology for calculating Funds
from Operations utilized by other equity REITs and, accordingly, may not be
comparable to such other REITs. Further, Funds from Operations does not
represent amounts available for management's discretionary use because of
needed capital replacement or expansion, debt service obligations, or other
commitments and uncertainties. See notes (9), (10) and (11) under the
caption "Distribution Policy" and the notes to the historical financial
statements of the Kilroy Group. Funds from Operations should not be
considered as an alternative for net income as a measure of profitability
nor is it comparable to cash flows provided by operating activities
determined in accordance with GAAP.
19
<PAGE>
RISK FACTORS
An investment in the shares of Common Stock involves various material
risks. Prospective investors should carefully consider the following risk
factors, in addition to the other information set forth in this Prospectus, in
connection with an investment in the shares of Common Stock offered hereby.
CONFLICTS OF INTEREST
Certain Limited Partner Approval Rights. While the Company will be the sole
general partner of the Operating Partnership, and generally will have full and
exclusive responsibility and discretion in the management and control of the
Operating Partnership, certain provisions of the Partnership Agreement place
limitations on the Company's ability to act with respect to the Operating
Partnership. The Partnership Agreement provides that if the limited partners
own at least 5% of the outstanding Units (including Units held by the Company
which will represent 82.6% of all Units outstanding upon consummation of the
Offering), the Company shall not, on behalf of the Operating Partnership, take
any of the following actions without the prior consent of the holders of more
than 50% of the Units representing limited partner interests (excluding Units
held by the Company): (i) dissolve the Operating Partnership, other than
incident to a merger or sale of substantially all of the Company's assets; or
(ii) prior to the seventh anniversary of the consummation of the Offering,
sell the Office Property located at 2260 E. Imperial Highway at Kilroy Airport
Center at El Segundo, other than incident to a merger or sale of substantially
all of the Company's assets. Furthermore, the Partnership Agreement provides
that, except in connection with certain transactions, the Company may not
voluntarily withdraw from the Operating Partnership, or transfer or assign its
interest in the Operating Partnership, without the consent of the holders of
at least 60% of the Units (including Units held by the Company) and without
meeting certain other criteria with respect to the consideration to be
received by the limited partners. In addition, the Company has agreed to use
its commercially reasonable efforts to structure certain merger transactions
to avoid causing the limited partners to recognize gain for federal income tax
purposes by virtue of the occurrence of or their participation in such
transactions. The restrictions on the Company's ability to act as described
above may result in the Company being precluded from taking action which the
Board of Directors believes is in the best interest of all stockholders. See
"Partnership Agreement of the Operating Partnership--Transferability of
Interests" and "--Certain Limited Partner Approval Rights."
Tax Consequences Upon Sale or Refinancing. Unlike persons acquiring shares
of Common Stock in the Offering, holders of Units may suffer different and
more adverse tax consequences than the Company upon the sale or refinancing of
the Properties owned by the Operating Partnership, and therefore such holders
may have different objectives regarding the appropriate pricing and timing of
any sale or refinancing of such Properties. While the Company, as the sole
general partner of the Operating Partnership, will have the authority (subject
to certain limited partner approval rights described below) to determine
whether and on what terms to sell or refinance each Property owned solely by
the Operating Partnership, those directors and officers of the Company who
hold Units may seek to influence the Company not to sell or refinance the
Properties, even though such a sale might otherwise be financially
advantageous to the Company, or may seek to influence the Company to refinance
a Property with a higher level of debt. The Partnership Agreement provides
that if the limited partners own at least 5% of the outstanding Units
(including Units held by the Company which will represent 82.6% of all Units
outstanding upon consummation of the Offering), the Company shall not, on
behalf of the Operating Partnership, take any of the following actions without
the prior consent of the holders of more than 50% (excluding Units held by the
Company) of the Units representing limited partner interests: (i) dissolve the
Operating Partnership, other than incident to a merger or sale of
substantially all of the Company's assets; or (ii) prior to the seventh
anniversary of the consummation of the Offering, sell the Office Property at
2260 E. Imperial Highway at Kilroy Airport Center at El Segundo, other than
incident to a merger or sale of substantially all of the Company's assets. The
Operating Partnership will also use commercially reasonable efforts to
cooperate with the limited partners to minimize any taxes payable in
connection with any repayment, refinancing, replacement or restructuring of
indebtedness, or any sale, exchange or any other disposition of assets, of the
Operating Partnership. See "Partnership Agreement of the Operating
Partnership--Transferability of Interests" and "--Certain Limited Partner
Approval Rights."
20
<PAGE>
Failure to Enforce Terms of Certain Agreements. As recipients of Units in
the Formation Transactions, John B. Kilroy, Sr., as Chairman of the Company's
Board of Directors, and John B. Kilroy, Jr., as the Company's President and
Chief Executive Officer and a director of the Company, will have a conflict of
interest with respect to their obligations as directors or officers of the
Company to enforce the terms of the agreements relating to the transfer to the
Operating Partnership of their interests in the Properties and other assets to
be acquired by the Company and relating to the Company's option to purchase
certain additional properties owned by entities controlled by them. See
"Business and Properties--Development, Leasing and Management Activities--
Excluded Properties." The failure to enforce the material terms of those
agreements (which would require the approval of the Independent Directors)
could result in a monetary loss to the Company, which loss could have a
material effect on the Company's financial condition or results of operations.
While certain Continuing Investors will provide indemnities in connection with
such transfers, such indemnities would be impaired to the extent that such
Continuing Investors have other obligations, including obligations for taxes
arising from the Formation Transactions or prior transactions, which they may
not have sufficient assets to satisfy.
Policies with Respect to Conflicts of Interest. The Company has adopted
certain policies designed to eliminate or minimize conflicts of interest.
These policies include (i) provisions in the Company's Articles of
Incorporation and Bylaws which require that at least a majority of the
directors be Independent Directors, (ii) provisions in the Company's Bylaws
which require that a majority of the Independent Directors approve
transactions between the Company and members of the Kilroy Group, including
the enforcement of terms of the transfers of the Properties to the Operating
Partnership and the exercise of the options with respect to the Excluded
Properties, and the sale or refinancing of the Properties and (iii) the
requirement that the members of the Board of Directors that are Continuing
Investors (John B. Kilroy, Jr. and John B. Kilroy, Sr.) enter into
noncompetition agreements with the Company. The provisions contained in the
Company's Articles of Incorporation can be modified only with the approval of
two-thirds of the shares of the Company's capital stock outstanding and
entitled to vote thereon, and the provisions contained in the Company's Bylaws
can be modified only with the approval of a majority of either the Company's
Board of Directors or the shares of the Company's capital stock outstanding
and entitled to vote thereon. However, there can be no assurance that these
policies will not be changed in the future or that they otherwise always will
be successful in eliminating the influence of such conflicts, and, if they are
not successful, decisions could be made that might fail to reflect fully the
interests of all stockholders. See "Policies with Respect to Certain
Activities--Conflict of Interest Policies."
Competitive Real Estate Activities of Management. John B. Kilroy, Sr. and
John B. Kilroy, Jr. will have controlling ownership interests in a complex of
three office properties which are located in the El Segundo submarket in which
four of the Office Properties and four of the Industrial Properties are
located. These properties will be managed by the Operating Partnership and
certain of the Company's officers, directors and employees will spend an
immaterial portion of their time and effort managing these interests and
Calabasas Park Centre, an undeveloped approximately 66-acre site (representing
approximately 45 developable acres net of acreage required for streets and
contractually required open areas). The Kilroy Group is actively marketing for
sale all but 18 acres of Calabasas Park Centre. Certain of the Company's
officers, directors and employees will spend an immaterial amount of time in
connection with any sales of such parcels.
Each of these properties is currently owned by partnerships owned and
controlled by John B. Kilroy, Sr. and John B. Kilroy, Jr. The properties
located on North Sepulveda Boulevard in El Segundo will be managed by the
Operating Partnership pursuant to a management agreement on market terms. With
respect to Calabasas Park Centre, the officers, directors and employees of the
Company will spend an immaterial amount of time in connection with the
entitlement, marketing and sales of such parcels. Calabasas Park Centre will
be managed by the Services Company pursuant to a management agreement on
market terms. The implementation of the arrangements relating to each of these
properties will involve a conflict of interest with John B. Kilroy, Sr. and
John B. Kilroy, Jr. The Kilroy Group holds certain other real estate interests
which are not being contributed to the Company as part of the Formation
Transactions. All of such other real estate interests relate to miscellaneous
properties and property rights that the Company believes are not of a type
appropriate for inclusion in the
21
<PAGE>
Company's portfolio and the properties are not consistent with the Company's
strategy. See "Business and Properties--Excluded Properties."
ADVERSE CONSEQUENCES OF FAILURE TO QUALIFY AS A REIT
Tax Liabilities as a Consequence of Failure to Qualify as a REIT. The
Company intends to operate so as to qualify as a REIT under the Code,
commencing with its taxable year ending December 31, 1997. Although management
believes that it will be organized and will operate in such a manner, no
assurance can be given that the Company will be organized or will be able to
operate in a manner so as to qualify or remain so qualified. Qualification as
a REIT involves the satisfaction of numerous requirements (some on an annual
and others on a quarterly basis) established under highly technical and
complex Code provisions for which there are only limited judicial and
administrative interpretations, and involves the determination of various
factual matters and circumstances not entirely within the Company's control.
For example, in order to qualify as a REIT, at least 95% of the Company's
gross income in any year must be derived from qualifying sources and the
Company must pay distributions to stockholders aggregating annually at least
95% of its REIT taxable income (determined without regard to the dividends
paid deduction and by excluding net capital gains). The complexity of these
provisions and of the applicable Treasury Regulations that have been
promulgated under the Code is greater in the case of a REIT that holds its
assets in partnership form. No assurance can be given that legislation, new
regulations, administrative interpretations or court decisions will not
significantly change the tax laws with respect to qualification as a REIT or
the federal income tax consequences of such qualification. The Company is
relying on the opinion of Latham & Watkins, tax counsel to the Company,
regarding various issues affecting the Company's ability to qualify, and
continue to qualify, as a REIT. See "Federal Income Tax Consequences--Taxation
of the Company" and "Legal Matters." Such legal opinion is based on various
assumptions and factual representations by the Company regarding the Company's
ability to meet the various requirements for qualification as a REIT, and no
assurance can be given that actual operating results will meet these
requirements. Such legal opinion is not binding on the Internal Revenue
Service ("IRS") or any court.
Among the requirements for REIT qualification is that the value of any one
issuer's securities held by a REIT may not exceed 5% of the REIT's total
assets on certain testing dates. See "Federal Income Tax Consequences--
Taxation of the Company--Requirements for Qualification." The Company believes
that its allocable share of the aggregate value of the securities of the
Services Company to be held by the Operating Partnership will be less than 5%
of the value of the Company's total assets, based on the initial allocation of
Units among participants in the Formation Transactions and the Company's
opinion regarding the maximum value that could be assigned to the expected
assets and net operating income of the Services Company after the Offering. In
rendering its opinion as to the qualification of the Company as a REIT, Latham
& Watkins is relying on the conclusions of the Company regarding the value of
the Services Company.
If the Company were to fail to qualify as a REIT in any taxable year, the
Company would be subject to federal income tax (including any applicable
alternative minimum tax) on its taxable income at regular corporate rates and
would not be allowed a deduction in computing its taxable income for amounts
distributed to its stockholders. Moreover, unless entitled to relief under
certain statutory provisions, the Company also would be disqualified from
treatment as a REIT for the four taxable years following the year during which
qualification is lost. This treatment would reduce the net earnings of the
Company available for investment or distribution to stockholders because of
the additional tax liability to the Company for the years involved. In
addition, distributions to stockholders would no longer be required to be
made. See "Federal Income Tax Consequences--Taxation of the Company--
Requirements for Qualification."
Other Tax Liabilities. Even if the Company qualifies for and maintains its
REIT status, it will be subject to certain federal, state and local taxes on
its income and property. For example, if the Company has net income from a
prohibited transaction, such income will be subject to a 100% tax. In
addition, the Company's net income, if any, from the third-party development
conducted through the Services Company will be subject to federal income tax
at regular corporate tax rates. See "Federal Income Tax Consequences--Services
Company."
22
<PAGE>
RISKS OF DEVELOPMENT BUSINESS AND RELATED ACTIVITIES BEING CONDUCTED BY THE
SERVICES COMPANY
Tax Liabilities. The Services Company will be subject to federal and state
income tax on its taxable income at regular corporate rates. Any federal,
state or local income taxes that the Services Company is required to pay will
reduce the cash available for distribution by the Company to its stockholders.
Adverse Consequences of Lack of Control Over the Businesses of the Services
Company. To comply with the REIT asset tests that restrict ownership of shares
of other corporations, upon consummation of the Offering, the Operating
Partnership will own 100% of the nonvoting preferred stock of the Services
Company (representing approximately 95.0% of its economic value) and John B.
Kilroy, Sr. and John B. Kilroy, Jr. will own all the outstanding voting common
stock of the Services Company (representing approximately 5.0% of its economic
value). This ownership structure is necessary to permit the Company to share
in the income of the Services Company and also maintain its status as a REIT.
Although it is anticipated that the Company will receive substantially all of
the economic benefit of the businesses carried on by the Services Company
through the Company's right to receive dividends through the Operating
Partnership, the Company will not be able to elect directors or officers of
the Services Company and, therefore, the Company will not have the ability to
influence the operations of the Services Company or require that the Services
Company's board of directors declare and pay a cash dividend on the nonvoting
preferred stock of the Services Company held by the Operating Partnership. As
a result, the board of directors and management of the Services Company may
implement business policies or decisions that would not have been implemented
by persons controlled by the Company and that are adverse to the interests of
the Company or that lead to adverse financial results, which could adversely
impact the Company's net operating income and cash flow. See "Formation and
Structure of the Company."
Adverse Consequence of REIT Status on the Businesses of the Services
Company. Certain requirements for REIT qualification may in the future limit
the Company's ability to receive increased distributions from the fee
development operations conducted and related services offered by the Services
Company. See "--Adverse Consequences of Failure to Qualify as a REIT."
NO APPRAISALS; CONSIDERATION TO BE PAID FOR PROPERTIES AND OTHER ASSETS MAY
EXCEED THEIR FAIR MARKET VALUE. No independent valuations or appraisals of the
Properties were obtained in connection with the Formation Transactions. The
valuation of the Company has been determined by considering the enterprise
value of the Company as a going concern based primarily upon a capitalization
of estimated and anticipated Funds from Operations (as defined) and cash
available for distribution and the other factors discussed in this Prospectus
under "Distribution Policy" and "Underwriting," rather than an asset-by-asset
valuation based on historical cost or current market value. This methodology
has been used because management believes it is appropriate to value the
Company as an ongoing business rather than with the view to values that could
be obtained from a liquidation of the Company or of individual assets owned by
the Company. Accordingly, there can be no assurance that the consideration
paid by the Company will not exceed the fair market value of the Properties
and other assets acquired by the Company. A valuation of the Company
determined solely by appraisals of the Properties and other assets of the
Company may result in a significantly lower valuation of the Company from that
which is reflected by the initial public offering price per share set forth on
the cover of this Prospectus, which also takes into account the businesses of
the Services Company, the earnings of the Properties and the going concern
value of the Company. See "Underwriting." Since the liquidation value of the
Company is likely to be significantly less than the value of the Company as a
going concern, stockholders may suffer a significant loss in the value of
their shares if the Company were required to sell its assets.
The valuation of the Company's development, leasing and management services
business has been derived, in part, from a capitalization of the revenue
derived from the Company's contracts with third parties for real estate
development, leasing and management services. Upon consummation of the
Offering, the Company expects to provide through the Operating Partnership
leasing and management services, and through the Services Company development
services.
The consideration paid and the allocation of Units of the Operating
Partnership among the participants in connection with the Formation
Transactions were not determined by arm's-length negotiations. Since no
23
<PAGE>
appraisals of the Properties and other assets were obtained, the value of the
Units allocated to participants in the Formation Transactions may exceed the
fair market value of their ownership of such Properties and assets. The terms
of the option agreements relating to the Excluded Properties also were not
determined by arm's-length negotiations, and such terms may be less favorable
to the Company than those that may have been obtained through negotiations
with a third party. In addition, approximately $37.2 million of mortgage
indebtedness guaranteed by John B. Kilroy, Sr., of which $8.7 million is also
guaranteed by John B. Kilroy, Jr., and personal indebtedness of approximately
$3.4 million of John B. Kilroy, Sr., will be repaid in connection with the
Formation Transactions. See "--Conflicts of Interest," "Use of Proceeds" and
"Formation and Structure of the Company."
CASH FLOW FROM DEVELOPMENT ACTIVITIES IS UNCERTAIN. A portion of the
Company's anticipated cash flow may be generated from development activities
which are partially dependent on the availability of development opportunities
and which are subject to the risks inherent with development and general
economic conditions. In addition, development activities will be subject to
limitations imposed by the REIT tests. See "Federal Income Tax Consequences--
Taxation of the Company--Income Tests." There can be no assurance that the
Company will realize such anticipated cash flows. See "Risk Factors--Real
Estate Investment Considerations--Risks of Real Estate Acquisition and
Development." Also, these development activities generally will be conducted
by the Services Company. Accordingly, cash flow from these activities will be
further dependent upon the decision of the Services Company's board of
directors to declare and pay a cash dividend on the nonvoting preferred stock
held by the Operating Partnership. See "--Risks of Development Business and
Related Activities Being Conducted by the Services Company."
DEPENDENCE ON SOUTHERN CALIFORNIA MARKET. Twenty-two of the 26 Properties,
comprising an aggregate of approximately 2.7 million rentable square feet
(representing approximately 80.4% of the aggregate rentable square feet of all
of the Properties), are located in Southern California. Consequently, the
Company's performance will be linked to economic conditions and the demand for
office, industrial and retail space in this region. The Southern California
economy has experienced significant recessionary conditions in the past
several years, primarily as a result of the downsizing of the aerospace and
defense industries; there is still a dependence on these industries in the
Company's El Segundo and Long Beach Airport area submarkets. The recessionary
conditions resulted in a general increase in vacancies and a general decrease
in net absorption and rental rates in the Company's El Segundo and Long Beach
Airport area submarkets. See "Business and Properties--The Company's Southern
California Submarkets." Although the recently announced disposition of defense
businesses of Hughes Electronics Corporation does not involve tenants at the
Properties, any resulting vacancy in the Company's submarkets may have an
adverse effect on rental rates and occupancy at the Company's Properties. Any
decline in the Southern California economy generally may result in a material
decline in the demand for office, industrial and retail space, have a material
adverse effect greater than if the Company had a more geographically diverse
portfolio of properties, and may materially and adversely affect the ability
of the Company to make distributions to stockholders. See "Business and
Properties--The Company's Southern California Submarkets."
In addition, eight Office Properties, representing approximately 64.9% of
the aggregate office space of all of the Office Properties, are located in two
office parks in El Segundo, California, and Long Beach, California,
respectively.
DEPENDENCE ON SIGNIFICANT TENANTS. The Company's ten largest office tenants
represented approximately 46.3% of annual base rent for the year ended
December 31, 1995 (giving pro forma effect to a recent extension of a lease
with Hughes Space & Communications with respect to two of the Office
Properties located at Kilroy Airport Center at El Segundo), and its ten
largest industrial tenants represented approximately 16.1% of annual base rent
for the same period. Of this amount, its largest tenant, Hughes Space &
Communications, currently leases approximately 495,000 rentable square feet of
office space in Kilroy Airport Center at El Segundo, representing
approximately 25.3% of the Company's total base rent revenues for the year
ended December 31, 1995 (giving pro forma effect to the Hughes Space &
Communications lease extension). The base periods of the Hughes Space &
Communications leases expire beginning in January 1999. The Company's revenues
and cash available for distribution to stockholders would be
disproportionately and materially adversely affected in the
24
<PAGE>
event of bankruptcy or insolvency of, or a downturn in the business of, or the
nonrenewal of leases by, any of its significant tenants, or the renewal of
such leases on terms less favorable to the Company than their current terms.
DISTRIBUTIONS TO STOCKHOLDERS AFFECTED BY MANY FACTORS. Distributions by the
Company to its stockholders will be based principally on cash available for
distribution from the Properties. Increases in base rent under the leases of
the Properties or the payment of rent in connection with future acquisitions
will increase the Company's cash available for distribution to stockholders.
However, in the event of a default or a lease termination by a lessee, there
could be a decrease or cessation of rental payments and thereby a decrease in
cash available for distribution. In addition, the amount available to make
distributions may decrease if properties acquired in the future yield lower
than expected returns.
The distribution requirements for REITs under federal income tax laws may
limit the Company's ability to finance future developments, acquisitions and
expansions without additional debt or equity financing. If the Company incurs
additional indebtedness in the future, it will require additional funds to
service such indebtedness and as a result amounts available to make
distributions may decrease. Distributions by the Company will also be
dependent on a number of other factors, including the Company's financial
condition, any decision to reinvest funds rather than to distribute such
funds, capital expenditures, the annual distribution requirements under the
REIT provisions of the Code and such other factors as the Company deems
relevant. In addition, the Company may issue from time to time additional
Units or shares of Common Stock in connection with the acquisition of
properties or in certain other circumstances. No prediction can be made as to
the number of such Units or shares of Common Stock which may be issued, if
any, and, if issued, the effect on cash available for distribution on a per
share basis to holders of Common Stock. Such issuances, if any, will have a
dilutive effect on cash available for distribution on a per share basis to
holders of Common Stock. See "The Company--Growth Strategies." The possibility
exists that actual results of the Company may differ from the assumptions used
by the Board of Directors in determining the initial distribution rate. In
such event, the trading price of the Common Stock may be adversely affected.
To obtain the favorable tax treatment associated with REITs, the Company
generally will be required to distribute to its stockholders at least 95% of
its taxable income (determined without regard to the dividends paid deduction
and by excluding net capital gains) each year. In addition, the Company will
be subject to tax at regular corporate rates to the extent that it distributes
less than 100% of its taxable income (including net capital gains) each year.
The Company will also be subject to a 4% nondeductible excise tax on the
amount, if any, by which certain distributions paid by it with respect to any
calendar year are less than the sum of 85% of its ordinary income, 95% of its
capital gain net income and 100% of its undistributed income from prior years.
The Company intends to make distributions to its stockholders to comply with
the distribution requirements of the Code and to reduce exposure to federal
income taxes and the nondeductible excise tax. Differences in timing between
the receipt of income and the payment of expenses in arriving at taxable
income and the effect of required debt amortization payments could require the
Company to borrow funds on a short-term basis to meet the distribution
requirements that are necessary to achieve the tax benefits associated with
qualifying as a REIT.
REAL ESTATE INVESTMENT CONSIDERATIONS
General. Real property investments are subject to varying degrees of risk.
The yields available from equity investments in real estate depend on the
amount of income earned and capital appreciation generated by the related
properties as well as the expenses incurred in connection therewith. If the
Properties do not generate income sufficient to meet operating expenses,
including debt service and capital expenditures, the ability to make
distributions to the Company's stockholders could be adversely affected.
Income from, and the value of, the Properties may be adversely affected by the
general economic climate, local conditions such as oversupply of office,
industrial or retail space or a reduction in demand for office, industrial or
retail space in the area, the attractiveness of the Properties to potential
tenants, competition from other office, industrial and retail buildings, and
the ability of the Company to provide adequate maintenance and insurance and
increased operating costs (including insurance premiums, utilities and real
estate taxes). In addition, revenues from properties and real estate values
are also affected by such factors as the cost of compliance with regulations
and the potential for liability under applicable laws, including changes in
tax laws, interest rate levels and the availability of financing.
25
<PAGE>
The Company's income would be adversely affected if a significant number of
tenants were unable to pay rent or if office, industrial or retail space could
not be rented on favorable terms. Certain significant expenditures associated
with an investment in real estate (such as mortgage payments, real estate
taxes and maintenance costs) generally are not reduced when circumstances
cause a reduction in income from the investment.
Illiquidity of Real Estate. Real estate investments are relatively illiquid
and, therefore, the Company has limited ability to vary its portfolio quickly
in response to changes in economic or other conditions. In addition, the
prohibition in the Code and related regulations on a REIT holding property for
sale may affect the Company's ability to sell properties without adversely
affecting distributions to the Company's stockholders.
Competition. The Company plans to expand, primarily through the acquisition
and development of additional office and industrial buildings in Southern
California and other markets where the acquisition and/or development of
property would, in the opinion of management, result in a favorable risk-
adjusted return on investment. There are a number of office and industrial
building developers and real estate companies that compete with the Company in
seeking properties for acquisition, prospective tenants and land for
development. All of the Properties are in developed areas where there are
generally other properties of the same type. Competition from other office,
industrial and retail properties may affect the Company's ability to attract
and retain tenants, rental rates and expenses of operation (particularly in
light of the higher vacancy rates of many competing properties which may
result in lower-priced space being available in such properties). The Company
may be competing with other entities that have greater financial and other
resources than the Company. During the period beginning January 1, 1994 and
ending September 30, 1996, the Company's weighted average renewal rate, based
on net rentable square footage, was 71.7% for the Properties located in the
Southern California Area and 50.9% for the Properties overall. The lower
overall retention rate is due primarily to the termination in 1993 of a lease,
scheduled to expire in 1995, for 211,000 square feet at the SeaTac Office
Center.
Lease Expirations. Certain leases expiring during the first several years
following the Offering are at rental rates higher than those attained by the
Company in its recent leasing activity. Such leases, or other leases of the
Company, may not be renewed or, if renewed, may be renewed at rental rates
lower than rental rates in effect immediately prior to expiration. Decreases
in the rental rates for the Company's properties, the failure of tenants to
renew any such leases or the failure of the Company to re-lease any of the
Company's space could materially adversely affect the Company and its ability
to make distributions. During the three calendar years ending December 31,
1999, the Company will have expiring Office Property leases covering
approximately 408,000 net rentable square feet, and Industrial Property leases
covering approximately 92,900 net rentable square feet. For the year ended
December 31, 1995, such leases had a weighted average annual base rent per net
rentable square foot of approximately $18.81 and $5.97, respectively. For the
nine-month period ended September 30, 1996, the Company entered into 31 Office
Property lease transactions for an aggregate of approximately 342,000 net
rentable square feet with a weighted average initial annual base rent per net
rentable square foot of approximately $19.52 (excluding the Thousand Oaks
Office Property where the Company entered into one lease transaction with an
initial annual base rent per net rentable square foot of $24.00). For the 12-
month period ending December 31, 1996, the Company entered into one Industrial
Property lease transaction for approximately 62,500 net rentable square feet
with an initial annual base rent per net rentable square foot of $6.36. See
"Business and Properties--General" and "--Lease Expirations."
Ground Leases. The Company's eight Office Properties located at Kilroy
Airport Center in Long Beach (assuming consummation of the acquisition of
Kilroy Long Beach Phase I concurrent with the consummation of the Offering)
and the SeaTac Office Center are held subject to ground leases. A default by
the Company under the terms of a ground lease could result in the loss of
Properties located on the respective parcel, with the landowner becoming the
owner of such Properties unless the default under the lease is cured or
waived. In addition, upon expiration of the ground leases, including the
options thereon, there is no assurance that the Company will be able to
negotiate new ground leases at all or, if any leases were renewed, that they
will be on terms consistent with or more favorable than existing terms, which
may result in the loss of the Properties or increased rental expense to the
Company. The ground leases for the Kilroy Airport Center Long Beach
26
<PAGE>
will expire in 2035. See "Business and Properties--Office Properties--Kilroy
Long Beach." The ground leases for the SeaTac Office Center (including renewal
options) will expire in 2062. See "Business and Properties--Office
Properties--SeaTac."
Capital Improvements. The Properties vary in age and require capital
improvements regularly. If the cost of improvements, whether required to
attract and retain tenants or to comply with governmental requirements,
substantially exceeds management's expectations, cash available for
distribution could be reduced.
Risks of Real Estate Acquisition and Development. The Company intends to
actively seek to acquire office and industrial properties to the extent that
they can be acquired on advantageous terms and meet the Company's investment
criteria. Acquisitions of office and industrial properties entail risks that
investments will fail to perform in accordance with expectations. Estimates of
the costs of improvements to bring an acquired property up to standards
established for the market position intended for that property may prove
inaccurate. In addition, there are general investment risks associated with
any new real estate investment.
In addition to the Development Properties, the Company will pursue other
development opportunities both for ownership by the Company and on a fee
basis. The real estate development business involves significant risks in
addition to those involved in the ownership and operation of established
office or industrial buildings, including the risks that financing may not be
available on favorable terms for development projects and construction may not
be completed on schedule or within budget, resulting in increased debt service
expense and construction costs and delays in leasing such properties and
generating cash flow. In addition, new development activities, regardless of
whether or not they are ultimately successful, typically require a substantial
portion of management's time and attention. Development activities are also
subject to risks relating to the inability to obtain, or delays in obtaining,
all necessary zoning, land-use, building, occupancy, and other required
governmental permits and authorizations.
The Company anticipates that future acquisitions and developments will be
financed, in whole or in part, through additional equity offerings, lines of
credit and other forms of secured or unsecured financing. If new developments
are financed through construction loans, there is a risk that, upon completion
of construction, permanent financing for newly developed properties may not be
available or may be available only on disadvantageous terms. Equity, rather
than debt, financing of future acquisitions or developments could have a
dilutive effect on the interests of existing stockholders of the Company.
While the Company has focused primarily on the development and ownership of
office and industrial properties, the Company plans in the future to develop
properties, part or all of which will be for retail use. In addition, while
the Company has historically limited its ownership of properties primarily to
the Southern California market, the Company in the future may expand its
business to geographic markets other than Southern California, where the
acquisition and/or development of property would, in the opinion of
management, result in a favorable risk-adjusted return on investment. The
Company will not initially possess the same level of familiarity with new
types of commercial development or new markets, which could adversely affect
its ability to acquire or develop properties in any new localities or to
realize expected performance.
Uninsured Loss. Management believes that the Properties are covered by
adequate comprehensive liability, rental loss and all-risk insurance provided
by reputable companies and with commercially reasonable deductibles, limits
and policy specifications customarily carried for similar properties. Certain
types of losses, however, may be either uninsurable or not economically
insurable, such as losses due to floods, riots or acts of war, or may be
insured subject to certain limitations including large deductibles or
copayments, such as losses due to seismic activity. See discussion of
uninsured losses from seismic activity below. Should an uninsured loss or a
loss in excess of insured limits occur, the Company could lose its investment
in and anticipated profits and cash flow from a property and would continue to
be obligated on any mortgage indebtedness or other obligations related to such
property. Any such loss would adversely affect the Company and its ability to
make distributions.
Uninsured Losses from Seismic Activity. The Properties are located in areas
that are subject to earthquake activity. Although the Company expects to have
earthquake insurance on a substantial portion of its Properties,
27
<PAGE>
such insurance will not be replacement cost and should any Property sustain
damage as a result of an earthquake, or should losses exceed the amount of
such coverage, the Company may incur uninsured losses or losses due to
deductibles or co-payments on insured losses. See "Business and Properties--
Uninsured Losses from Seismic Activity."
Risks Involved in Property Ownership Through Partnerships and Joint
Ventures. Although the Company will own fee simple interests in the Properties
(other than Kilroy Long Beach and the SeaTac Office Center, which are held
subject to long-term ground leases), in the future the Company may also
participate with other entities in property ownership through joint ventures
or partnerships. Partnership or joint venture investments may, under certain
circumstances, involve risks not otherwise present, including the possibility
that the Company's partners or co-venturers might become bankrupt, that such
partners or co-venturers might at any time have economic or other business
interests or goals which are inconsistent with the business interests or goals
of the Company, and that such partners or co-venturers may be in a position to
take action contrary to the instructions or the requests of the Company or
contrary to the Company's policies or objectives, including the Company's
policy with respect to maintaining its qualification as a REIT. The Company
will, however, seek to maintain sufficient control of such partnerships or
joint ventures to permit the Company's business objectives to be achieved.
There is no limitation under the Company's organizational documents as to the
amount of available funds that may be invested in partnerships or joint
ventures.
REAL ESTATE FINANCING RISKS. The Company will be subject to the risks
normally associated with debt financing, including the risk that the Company's
cash flow will be insufficient to meet required payments of principal and
interest, the risk that indebtedness on the Properties will not be refinanced
at maturity or that the terms of such refinancing will not be as favorable as
the terms of such indebtedness. If the Company were unable to refinance its
indebtedness on acceptable terms, or at all, the Company might be forced to
dispose of one or more of the Properties upon disadvantageous terms, which
might result in losses to the Company and might adversely affect the cash
available for distribution. If prevailing interest rates or other factors at
the time of refinancing result in higher interest rates on refinancings, the
Company's interest expense would increase, which would adversely affect the
Company's cash flow and its ability to pay expected distributions to
stockholders. Further, if a Property is mortgaged to secure payment of
indebtedness and the Company is unable to meet mortgage payments, or is in
default under the related mortgage or deed of trust, such Property could be
transferred to the mortgagee, the mortgagee could foreclose upon the Property,
appoint a receiver and receive an assignment of rents and leases or pursue
other remedies, all with a consequent loss of income and asset value to the
Company. Foreclosures could also create taxable income without accompanying
cash proceeds, thereby hindering the Company's ability to meet the REIT
distribution requirements of the Code. See "The Financing."
CHANGES IN INVESTMENT AND FINANCING POLICIES WITHOUT STOCKHOLDER
VOTE. Subject to the Company's fundamental investment policy to maintain its
qualification as a REIT (unless a change is approved by the Company's Board of
Directors and stockholders), the Company's Board of Directors will determine
its investment and financing policies, its growth strategy, and its debt,
capitalization, distribution and operating policies. Although the Board of
Directors has no present intention to revise or amend these strategies and
policies, the Board of Directors may do so at any time without a vote of the
Company's stockholders. See "Policies With Respect to Certain Activities--
Other Policies." Accordingly, stockholders will have no control over changes
in strategies and policies of the Company, and such changes may not serve the
interests of all stockholders and could adversely affect the Company's
financial condition or results of operations, including its ability to
distribute cash to stockholders.
Issuance of Additional Securities. The Company has authority to offer its
Common Stock or other equity or debt securities in exchange for property or
otherwise. Similarly, the Company may cause the Operating Partnership to offer
additional Units or preferred units of the Operating Partnership, including
offers in exchange for property to sellers who seek to defer certain of the
tax consequences relating to a property transfer. Existing stockholders will
have no preemptive right to acquire any such securities, and any such issuance
of equity securities could result in dilution in an existing stockholder's
investment in the Company.
28
<PAGE>
Risks Involved in Acquisitions Through Partnerships or Joint Ventures. The
Company may invest in office and industrial properties through partnerships or
joint ventures instead of purchasing such properties directly or through
wholly-owned subsidiaries. Partnership or joint venture investments may, under
certain circumstances, involve risks not otherwise present in a direct
acquisition of properties. These include the risk that the Company's co-
venturer or partner in an investment might become bankrupt; a co-venturer or
partner might at any time have economic or business interests or goals which
are inconsistent with the business interests or goals of the Company and a co-
venturer or partner might be in a position to take action contrary to the
instructions or the requests of the Company or contrary to the Company's
policies or objectives.
Risks Involved in Investments in Securities Related to Real Estate. The
Company may pursue its investment objectives through the ownership of
securities of entities engaged in the ownership of real estate. Ownership of
such securities may not entitle the Company to control the ownership,
operation and management of the underlying real estate. In addition, the
Company may have no ability to control the distributions with respect to such
securities, which may adversely affect the Company's ability to make required
distributions to stockholders. Furthermore, if the Company desires to control
an issuer of securities, it may be prevented from doing so by the limitations
on percentage ownership and gross income tests which must be satisfied by the
Company in order for the Company to qualify as a REIT. See "Federal Income Tax
Consequences--Taxation of the Company--Requirements for Qualification as a
REIT." The Company intends to operate its business in a manner that will not
require the Company to register under the Investment Company Act of 1940 and
stockholders will therefore not have the protection of that Act.
The Company may also invest in mortgages, and may do so as a strategy for
ultimately acquiring the underlying property. In general, investments in
mortgages include the risk that borrowers may not be able to make debt service
payments or pay principal when due, the risk that the value of the mortgaged
property may be less than the principal amount of the mortgage note securing
such property and the risk that interest rates payable on the mortgages may be
lower than the Company's cost of funds to acquire these mortgages. In any of
these events, Funds from Operations and the Company's ability to make required
distributions to stockholders could be adversely affected.
RISK OF OPERATIONS CONDUCTED THROUGH THE OPERATING PARTNERSHIP. The Company
will own and manage the Properties through its investment in the Operating
Partnership in which it will own an approximately 82.6% economic interest (or
an 84.5% interest if the Underwriters' over-allotment option is exercised in
full). The remaining interests in the Operating Partnership will be owned by
the Continuing Investors. Although the number of limited partnership Units was
designed to result in a distribution per Unit equal to a distribution per
share of Common Stock, such distributions would be equal only if the Company
distributes to stockholders all amounts it receives in distributions from the
Operating Partnership. See "Formation Transactions--Comparison of Common Stock
and Units." In addition, under the terms of the Partnership Agreement, the
limited partners of the Operating Partnership have certain approval rights
with respect to certain transactions that affect all stockholders. See "--
Conflicts of Interest--Certain Limited Partner Approval Rights."
INFLUENCE OF CERTAIN CONTINUING INVESTORS. John B. Kilroy, Sr., the
Company's Chairman of the Board of Directors, and John B. Kilroy, Jr., the
Company's President and Chief Executive Officer and one of its directors, will
own, together with the other Continuing Investors, Units exchangeable for
shares of Common Stock equal to approximately 17.4% of the total outstanding
shares (and, together with options exercisable for shares of Common Stock,
18.8% of the total outstanding shares). In addition, the Messrs. Kilroy will
hold two of the Company's five seats on the Board of Directors. Under the
terms of the Company's charter, no other stockholder presently is permitted to
own in excess of 7.0% of the Common Stock. In addition, although the Messrs.
Kilroy will not be able to take action on behalf of the Company without the
concurrence of other members of the Company's Board of Directors, they will,
for so long as limited partners of the Operating Partnership own at least 5%
of the outstanding Units, be able to block (i) the dissolution of the
Operating Partnership, or (ii) prior to the seventh anniversary of the
consummation of the Offering, the sale of the Office Property located at 2260
E. Imperial Highway at Kilroy Airport Center at El Segundo, in each case other
than incident to a merger or sale of all or substantially all of the Company's
assets, and be able to exert substantial influence over the Company's affairs.
29
<PAGE>
LIMITS ON OWNERSHIP AND CHANGE IN CONTROL. Certain provisions of the
Maryland General Corporation Law (the "MGCL") and the Company's Articles of
Incorporation and Bylaws, and certain provisions of the Operating
Partnership's partnership agreement, could have the effect of delaying,
deferring or preventing a change in control of the Company or the removal of
existing management and, as a result, could prevent the stockholders of the
Company from being paid a premium for their shares of Common Stock over then
prevailing market prices.
Limits on Ownership of Common Stock. In order for the Company to maintain
its qualification as a REIT, not more than 50% in value of the outstanding
shares of its capital stock may be owned, actually or constructively, by five
or fewer individuals (as defined in the Code to include certain entities)
during the last half of a taxable year (other than the first year for which
the election to be treated as a REIT has been made). Furthermore, after the
first taxable year for which a REIT election is made, the Company's shares
must be held by a minimum of 100 persons for at least 335 days of a 12-month
taxable year (or a proportionate part of a short tax year). In addition, if
the Company, or an owner of 10% or more of the Company, actually or
constructively, owns 10% or more of a tenant of the Company (or a tenant of
any partnership in which the Company is a partner), the rent received by the
Company (either directly or through any such partnership) from such tenant
will not be qualifying income for purposes of the REIT gross income tests of
the Code. See "Federal Income Tax Consequences--Taxation of the Company." In
order to protect the Company against the risk of losing REIT status due to a
concentration of ownership among its stockholders, the Articles of
Incorporation of the Company limit actual or constructive ownership of the
outstanding shares of Common Stock by any single stockholder to 7.0% (the
"Ownership Limit") of the then outstanding shares of Common Stock. See
"Description of Capital Stock--Restrictions on Ownership and Transfer." The
Board of Directors will consider waiving the Ownership Limit with respect to a
particular stockholder if it is satisfied, based upon the advice of tax
counsel or otherwise, that ownership by such stockholder in excess of the
Ownership Limit would not jeopardize the Company's status as a REIT and the
Board of Directors otherwise decided such action would be in the best
interests of the Company. The Board of Directors has waived the Ownership
Limit with respect to John B. Kilroy, Sr., John B. Kilroy, Jr., members of
their families and certain affiliated entities and has permitted such
individuals and entities to actually or constructively own, in the aggregate,
up to 21% of the outstanding Common Stock.
Actual or constructive ownership of shares of Common Stock in excess of the
Ownership Limit, or, with the consent of the Board of Directors, such other
limit, will cause the violative transfer or ownership to be void with respect
to the transferee or owner as to that number of shares in excess of the
Ownership Limit, or, with the consent of the Board of Directors, such other
limit, as applicable, and such shares will be automatically transferred to a
trust for the benefit of a qualified charitable organization. Such purported
transferee or owner shall have no right to vote such shares or be entitled to
dividends or other distributions with respect to such shares. See "Description
of Capital Stock--Restrictions on Ownership and Transfer" for additional
information regarding the Ownership Limit.
Staggered Board. Following the consummation of the Offering, the Board of
Directors of the Company will be divided into three classes serving staggered
three-year terms. The terms of the first, second and third classes will expire
in 1998, 1999 and 2000, respectively. Directors for each class will be chosen
for a three-year term upon the expiration of the current class' term,
beginning in 1998. In addition, the Articles of Incorporation authorize the
Board of Directors to issue up to 150,000,000 shares of Common Stock and
30,000,000 shares of preferred stock and to establish the rights and
preferences of any shares of preferred stock issued. No shares of preferred
stock will be issued or outstanding at the consummation of the Offering. See
"Description of Capital Stock--Preferred Stock." Under the Articles of
Incorporation, stockholders do not have cumulative voting rights.
The Ownership Limit, the staggered terms for directors, the issuance of
additional common or preferred stock in the future and the absence of
cumulative voting rights could have the effect of (i) delaying or preventing a
change of control of the Company even if a change of control were in the
stockholders' interest, (ii) deterring tender offers for the Common Stock that
may be beneficial to the stockholders, or (iii) limiting the opportunity for
stockholders to receive a premium for their Common Stock that might otherwise
exist if an investor attempted
30
<PAGE>
to assemble a block of shares of Common Stock in excess of the Ownership Limit
or otherwise to effect a change of control of the Company. See "Management"
and "Description of Capital Stock."
DEPENDENCE ON KEY PERSONNEL. The Company is dependent on the efforts of its
executive officers and directors, particularly John B. Kilroy, Sr., the
Company's Chairman of the Board, and John B. Kilroy, Jr., the Company's
President and Chief Executive Officer, for strategic business direction and
experience in the Southern California real estate market. While the Company
believes that it could find replacements for these key personnel, the loss of
their services could have an adverse effect on the operations of the Company.
The Company has entered into employment agreements with John B. Kilroy, Jr.,
Jeffrey C. Hawken, Richard E. Moran Jr. and Campbell Hugh Greenup. See
"Management--Employment Agreements."
DISTRIBUTION PAYOUT PERCENTAGE. The Company's expected annual distributions
for the 12 months following consummation of the Offering of $1.55 per share
are expected to be approximately 91.7% of estimated cash available for
distribution. If cash available for distribution generated by the Company's
assets for such 12-month period is less than the Company's estimate, or if
such cash available for distribution decreases in future periods from expected
levels, the Company's ability to make the expected distributions would be
adversely affected. Any such failure to make expected distributions could
result in a decrease in the market price of the Common Stock. See
"Distribution Policy."
HISTORICAL OPERATING LOSSES OF THE OFFICE AND INDUSTRIAL
PROPERTIES. Although the Office and Industrial Properties developed by the
Company after their construction and initial lease-up periods have
historically generated positive net cash flow, the effect of depreciation,
amortization and other non-cash charges of the Company has resulted in net
losses for financial reporting purposes in each of the last five fiscal years.
Historical operating results of the Office and Industrial Properties may not
be comparable to future operating results of the Company because, prior to the
completion of the Offering and the Formation Transactions, the Office and
Industrial Properties were encumbered with greater levels of debt (which has
the effect of reducing net income) than that with which the Company intends to
operate. In addition, the historical results of operations do not reflect the
acquisition and development of any of the Acquisition Properties or the
Development Properties. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations." However, there can be no assurance that
the Company will acquire the Acquisition Properties or acquire and
successfully develop any of the Development Properties, and, even if such
Properties are acquired and successfully developed, that they will not
experience losses in the future.
NO LIMITATION ON DEBT. The Board of Directors currently intends to fund
acquisition opportunities and development partially through short-term
borrowings, as well as out of undistributed cash available for distribution
and other available cash. The Board of Directors expects to refinance projects
purchased or developed with short-term debt either with long-term indebtedness
or equity financing depending upon the economic conditions at the time of
refinancing. Upon completion of the Offering and the Formation Transactions,
the debt to total market capitalization ratio of the Company will be
approximately 21.9% (assuming an initial public offering price of $22.50 per
share of Common Stock). The Board of Directors has adopted a policy of
limiting its indebtedness to approximately 50% of its total market
capitalization (i.e., the market value of the issued and outstanding shares of
Common Stock, including interests exchangeable therefor, plus total debt), but
the organizational documents of the Company do not contain any limitation on
the amount or percentage of indebtedness, funded or otherwise, that the
Company may incur. The Board of Directors, without the vote of the Company's
stockholders, could alter or eliminate its current policy on borrowing at any
time at its discretion. If this policy were changed, the Company could become
more highly leveraged, resulting in an increase in debt service that could
adversely affect the Company's cash flow and its ability to make expected
distributions to its stockholders and an increased risk of default on the
Company's obligations. See "Policies With Respect to Certain Activities--
Financing."
The Company has established its debt policy relative to the market
capitalization of the Company rather than to the book value of its assets, a
ratio that is frequently employed. The Company has used total market
capitalization because it believes that the book value of its assets (which to
a large extent is the depreciated value
31
<PAGE>
of real property, the Company's primary tangible asset) does not accurately
reflect its ability to borrow and to meet debt service requirements. The total
market capitalization of the Company, however, is more variable than book
value, and does not necessarily reflect the fair market value of the
underlying assets of the Company at all times. Although the Company will
consider factors other than total market capitalization in making decisions
regarding the incurrence of indebtedness (such as the purchase price of
properties to be acquired with debt financing, the estimated market value of
such properties upon refinancing and the ability of particular properties and
the Company as a whole to generate cash flow to cover expected debt service),
there can be no assurance that the ratio of indebtedness to total market
capitalization (or to any other measure of asset value) will be consistent
with the expected level of distributions to the Company's stockholders.
GOVERNMENT REGULATIONS. Many laws and governmental regulations are
applicable to the Properties and changes in these laws and regulations, or
their interpretation by agencies and the courts, occur frequently.
Costs of Compliance with Americans with Disabilities Act. Under the
Americans with Disabilities Act of 1990 (the "ADA"), all places of public
accommodation, effective beginning in 1992, are required to meet certain
federal requirements related to access and use by disabled persons. Compliance
with the ADA might require removal of structural barriers to handicapped
access in certain public areas where such removal is "readily achievable."
Noncompliance with the ADA could result in the imposition of fines or an award
of damages to private litigants. The impact of application of the ADA to the
Company's properties, including the extent and timing of required renovations,
is uncertain. If required changes involve a greater amount of expenditures
than the Company currently anticipates or if the changes must be made on a
more accelerated schedule than the Company currently anticipates, the
Company's ability to make expected distributions to stockholders could be
adversely affected.
Environmental Matters. Under various federal, state and local laws,
ordinances and regulations relating to the protection of the environment, an
owner or operator of real estate may be held liable for the costs of removal
or remediation of certain hazardous or toxic substances located on or in the
property. These laws often impose liability without regard to whether the
owner was responsible for, or even knew of, the presence of such hazardous or
toxic substances. The costs of investigation, removal or remediation of such
substances may be substantial, and the presence of such substances may
adversely affect the owner's ability to rent or sell the property or to borrow
using such property as collateral and may expose it to liability resulting
from any release of or exposure to such substances. Persons who arrange for
the disposal or treatment of hazardous or toxic substances at another location
may also be liable for the costs of removal or remediation of such substances
at the disposal or treatment facility, whether or not such facility is owned
or operated by such person. Certain environmental laws impose liability for
release of asbestos-containing materials into the air, and third parties may
also seek recovery from owners or operators of real properties for personal
injury associated with asbestos-containing materials and other hazardous or
toxic substances. In connection with the ownership (direct or indirect),
operation, management and development of real properties, the Company may be
considered an owner or operator of such properties or as having arranged for
the disposal or treatment of hazardous or toxic substances and, therefore,
potentially liable for removal or remediation costs, as well as certain other
related costs, including governmental penalties and injuries to persons and
property.
The Company believes that the Properties are in compliance in all material
respects with all federal, state and local laws, ordinances and regulations
regarding hazardous or toxic substances or petroleum products. The Company has
not been notified by any governmental authority, and is not otherwise aware,
of any material noncompliance, liability or claim relating to hazardous or
toxic substances or petroleum products in connection with any of its present
properties.
All of the Properties were subject to Phase I or similar environmental
assessments by independent environmental consultants in connection with the
formation of the Company. Phase I assessments are intended to discover
information regarding, and to evaluate the environmental condition of, the
surveyed property and surrounding properties. Phase I assessments generally
include an historical review, a public records review, an investigation of the
surveyed site and surrounding properties, and preparation and issuance of a
written report,
32
<PAGE>
but do not include soil sampling or subsurface investigations. In connection
with the preparation of the Phase I environmental survey with respect to
Kilroy Long Beach Phase I, interviews of certain individuals formerly employed
at the site documented in a historical site assessment survey revealed the
site's possible prior use as a Nike air defense command center or missile
facility. Further investigation performed by the Company's environmental
consultants and by the Company did not reveal any additional information with
respect to such use of the site. The Company's investigation included whether
the site might have been used previously for the storage of missiles
containing nuclear warheads, and did not reveal any facts that would indicate
that the prior use of the site would result in a material risk of
environmental liability. Consequently, the Company does not believe that this
site constitutes a risk of a liability that would have a material adverse
effect on the Company's financial condition or results of operations taken as
a whole. In connection with the preparation of the Phase I environmental
survey with respect to the Industrial Property located at 12752-12822 Monarch
Street, soil sampling revealed trace elements of contamination with cleaning
solvents. However, based on the level of contamination noted in the
environmental survey, management does not believe that such contamination will
have a material adverse effect on the Company's financial condition or results
of operations taken as a whole.
None of the Company's environmental assessments of the other Properties has
revealed any environmental liability that the Company believes would have a
material adverse effect on the Company's financial condition or results of
operations taken as a whole, nor is the Company aware of any such material
environmental liability. Nonetheless, it is possible that the Company's
assessments do not reveal all environmental liabilities or that there are
material environmental liabilities of which the Company is unaware. Moreover,
there can be no assurance that (i) future laws, ordinances or regulations will
not impose any material environmental liability or (ii) the current
environmental condition of the Properties will not be affected by tenants, by
the condition of land or operations in the vicinity of the Properties (such as
the presence of underground storage tanks), or by third parties unrelated to
the Company. If compliance with the various laws and regulations, now existing
or hereafter adopted, exceeds the Company's budgets for such items, the
Company's ability to make expected distributions to stockholders could be
adversely affected.
Other Regulations. The Properties are also subject to various federal, state
and local regulatory requirements such as state and local fire and life safety
requirements. Failure to comply with these requirements could result in the
imposition of fines by governmental authorities or awards of damages to
private litigants. The Company believes that the Properties are currently in
compliance with all such regulatory requirements. However, there can be no
assurance that these requirements will not be changed or that new requirements
will not be imposed which would require significant unanticipated expenditures
by the Company and could have an adverse effect on the Company's Funds from
Operations and expected distributions.
The City of Los Angeles has enacted certain regulations relating to the
repair of welded steel moment frame buildings located in certain areas damaged
as a result of the Southern California Northridge earthquake on January 17,
1994. Such regulations do not apply to the Properties. There can be no
assurance, however, that similar regulations will not be adopted by
governmental agencies with the ability to regulate the Properties or that
other requirements affecting the Properties will not be imposed which would
require significant unanticipated expenditures by the Company and could have
an adverse effect on the Company's Funds from Operations and cash available
for distribution. The Company believes, based in part on recent engineering
reports, that its Properties are in good condition. See "Business and
Properties--Uninsured Losses from Seismic Activity."
IMMEDIATE AND SUBSTANTIAL DILUTION. As set forth more fully under
"Dilution," as of September 30, 1996, the Properties to be contributed by the
Kilroy Group in exchange for Units in the Operating Partnership had a pro
forma net tangible book value for financial reporting purposes (giving effect
to the Offering) of approximately $124.8 million, or $9.90 per share of Common
Stock. As a result, the pro forma net book value per share of Common Stock of
the Company after the consummation of the Offering and the Formation
Transactions will be less than the assumed initial public offering price of
$22.50 per share. The purchasers of Common Stock offered hereby will
experience immediate and substantial dilution of $12.60 per share of Common
Stock (based on the assumed initial public offering price) in the net tangible
book value of the shares of Common Stock. See "Dilution."
33
<PAGE>
NO PRIOR PUBLIC MARKET. Prior to the Offering, there has been no public
market for the Common Stock, and there can be no assurance that an active
trading market will develop as a result of the Offering or, if a trading
market does develop, that it will be sustained or that the shares of Common
Stock will be resold at or above the initial public offering price. The market
for equity securities can be volatile and the trading price of the Common
Stock could be subject to wide fluctuations in response to operating results,
news announcements, trading volume, general market trends, changes in interest
rates, governmental regulatory action and changes in tax laws. The initial
public offering price of the Common Stock offered hereby will be determined
through negotiations between the Company and the representatives (the
"Representatives") of the Underwriters. Among the factors to be considered in
such negotiations, in addition to prevailing market conditions, will be
distribution rates and Funds from Operations of publicly traded REITs that the
Company and the Representatives believe to be comparable to the Company,
estimates of the business potential and earnings prospects of the Company, and
the current state of the Company's industry and the economy as a whole. The
assumed initial public offering price does not necessarily bear any
relationship to the Company's book value, assets, financial condition or any
other established criteria of value and may not be indicative of the market
price for the Common Stock after the Offering. See "Underwriting."
EFFECT OF MARKET INTEREST RATES ON PRICE OF COMMON STOCK. One of the factors
that will influence the market price of the Common Stock in public markets
will be the annual yield on the price paid for shares from distributions by
the Company. An increase in prevailing market interest rates on fixed income
securities may lead prospective purchasers of the Common Stock to demand a
higher annual yield from future distributions. Such an increase in the
required yield from distributions may adversely affect the market price of the
Common Stock.
SHARES AVAILABLE FOR FUTURE SALE. No prediction can be made as to the
effect, if any, that future sales of shares, or the availability of shares for
future sale, will have on the market price of the Common Stock. Sales of
substantial amounts of shares of Common Stock in the public market (or upon
exchange of Units) or the perception that such sales might occur could
adversely affect the market price of the shares of Common Stock.
Upon the consummation of the Offering and the Formation Transactions, the
Company will have 12,600,000 shares of Common Stock outstanding (including
100,000 restricted shares of Common Stock issued to an officer of the Company
who is not a Continuing Investor and excluding 1,875,000 shares of Common
Stock subject to the Underwriters' over-allotment option), of which all but
the 100,000 restricted shares of Common Stock will be freely tradeable in the
public market by persons other than "affiliates" of the Company without
restriction or registration under the Securities Act. The Common Stock issued
to an officer and all of the shares of Common Stock that are issuable upon the
redemption of Units will be deemed to be "restricted securities" within the
meaning of Rule 144 under the Securities Act and may not be transferred unless
registered under the Securities Act or an exemption from registration is
available, including any exemption from registration provided under Rule 144
of the Securities Act. In general, upon satisfaction of certain conditions,
Rule 144 of the Securities Act permits the sale of certain amounts of
restricted securities two years following the date of acquisition of the
restricted securities from the Company and, after three years, permits
unlimited sales by persons unaffiliated with the Company.
It is expected that the Operating Partnership will issue an aggregate of
2,652,374 Units to executive officers, directors and other Continuing
Investors in connection with the formation of the Company which, after two
years following the receipt of such Units, may be redeemed by the Operating
Partnership at the request of the holders for cash (based on the fair market
value of an equivalent number of shares of Common Stock at the time of such
redemption) or, at the Company's option, exchanged for an equal number of
shares of Common Stock, subject to certain antidilution adjustments and, with
respect to 50% of the Units to be issued to John B. Kilroy, Sr., John B.
Kilroy, Jr. and Kilroy Industries, the obligation of such Continuing Investors
to indemnify the Company in connection with the Formation Transactions. See
"Formation and Structure of the Company--Allocation of Consideration in the
Formation Transactions." However, if the Company does not elect to exchange
such Units for shares, a Continuing Investor that is a corporation or a
limited liability company may require the Company to issue shares of Common
Stock in lieu of cash, subject to the Ownership Limit or, with the consent of
the
34
<PAGE>
Board of Directors, such other limit which does not result in the failure of
the Company to qualify as a REIT. See "Formation and Structure of the Company"
and "Shares Available for Future Sale--Redemption Rights/Exchange
Rights/Registration Rights." It is expected that immediately after the
Offering the Company will grant options to purchase an aggregate of
approximately 900,000 shares of Common Stock at the initial public offering
price to certain directors, executive officers and other employees of the
Company and an additional approximately 500,000 shares of Common Stock will be
reserved for issuance as restricted shares of Common Stock or upon the
exercise of options granted under the Stock Incentive Plan. See "Management--
Stock Incentive Plan." In addition, the Company may issue from time to time
additional shares of Common Stock or Units in connection with the acquisition
of properties, including the possible issuance of Units upon the exercise of
options to acquire the Excluded Properties. See "The Company--Growth
Strategies" and "Business and Properties--Development, Management and Leasing
Activities--Excluded Properties." The Company has agreed to file and generally
keep continuously effective beginning two years after the completion of the
Offering a registration statement covering the issuance of shares upon the
exchange of Units and the resale thereof and has agreed to provide piggyback
registration rights with respect to shares of Common Stock which may be
acquired by the Continuing Investors and certain other persons. See "Shares
Available for Future Sale." The Company also anticipates that it will file a
registration statement with respect to the shares of Common Stock issuable
under the Stock Incentive Plan following the consummation of the Offering.
Such registration statements and registration rights generally will allow
shares of Common Stock covered thereby, including shares of Common Stock
issuable upon exchange of Units or the exercise of options or restricted
shares of Common Stock to be transferred or resold without restriction under
the Securities Act.
In addition to the limits placed on the sale of shares of Common Stock by
operation of Rule 144 and other provisions of the Securities Act, (i) each of
the Continuing Investors has agreed not to, directly or indirectly, offer,
sell, offer to sell, contract to sell, pledge, grant any option to purchase or
otherwise sell or dispose (or announce any offer, sale, offer of sale,
contract of sale, pledge, grant of any option to purchase or other sale or
disposition) of any Units or shares of Common Stock or other capital stock of
the Company, or any securities convertible or exercisable or exchangeable for
any Units or shares of Common Stock or other capital stock of the Company for
a period of two years from the date of this Prospectus, and (ii) the Company
has agreed not to offer, sell, offer to sell, contract to sell, pledge, grant
any option to purchase or otherwise sell or dispose (or announce any offer,
sale, offer of sale, contract of sale, pledge, grant of any option to purchase
or other sale or disposition) of any (other than pursuant to the Stock
Incentive Plan) shares of Common Stock or other capital stock of the Company,
or any securities convertible or exercisable or exchangeable for any Units or
shares of Common Stock or other capital stock of the Company, for a period of
180 days from the date of this Prospectus, in each case without the prior
written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, subject to certain limited exceptions. At the conclusion of the
two-year period referenced in clause (i) above, Common Stock issued upon the
subsequent exchange of Units may be sold in the public market pursuant to the
registration rights described above. Notwithstanding the foregoing, 50% of the
Units received by John B. Kilroy, Sr., John B. Kilroy, Jr. and Kilroy
Industries in connection with the Formation Transactions will be pledged to
secure their indemnification obligations pursuant to an agreement with the
Company. See "Formation and Structure of the Company." Future sales of the
shares of Common Stock described above could have an adverse effect on the
market price of the shares of Common Stock and the existence of Units,
options, shares of Common Stock reserved for issuance as restricted shares of
Common Stock or upon exchange of Units and the exercise of options and
registration rights referred to above may adversely affect the terms upon
which the Company may be able to obtain additional capital through the sale of
equity securities. See "Shares Available for Future Sale" and "Underwriting."
Such sales may be increased or accelerated to the extent that the Continuing
Investors have personal obligations, including obligations for taxes, which
may arise as a result of the Formation Transactions or prior transactions.
35
<PAGE>
FORMATION AND STRUCTURE OF THE COMPANY
Kilroy Realty was formed in September 1996 and the Operating Partnership was
formed in October 1996. The Services Company will be formed prior to
consummation of the Offering.
FORMATION TRANSACTIONS
Prior to or simultaneous with the consummation of the Offering, the Company,
the Operating Partnership, the Services Company and the Continuing Investors
will engage in the Formation Transactions designed to enable the Company to
continue and expand the real estate operations of KI, to facilitate the
Offering, to enable the Company to qualify as a REIT for federal income tax
purposes commencing with its taxable year ending December 31, 1997 and to
preserve certain tax advantages for the existing owners of the Properties. The
Formation Transactions are as follows:
. Pursuant to the Omnibus Agreement, the Operating Partnership may require
the contribution to the Operating Partnership of all of the Continuing
Investors' interests in the Properties (other than the Acquisition
Properties), the assets used to conduct the leasing, management and
development activities (principally office equipment), the assignment of
contract rights in connection with development opportunities at Kilroy
Airport Center Long Beach, and the rights with respect to the purchase
of each of the Acquisition Properties, in exchange for Units
representing limited partnership interests in the Operating Partnership.
The book value to the Continuing Investors of the assets to be
contributed to the Operating Partnership is a negative $113.2 million
and the value of the Units representing limited partnership interests in
the Operating Partnership to be received by the Continuing Investors is
$59.7 million, assuming a Unit value equal to the assumed initial public
offering price of $22.50 per share. Pursuant to the terms of the Omnibus
Agreement, the Operating Partnership has the right to acquire the
Properties and the other assets described above from the Continuing
Investors in exchange for Units through December 31, 1998, the date the
Omnibus Agreement terminates. Following the consummation of the Offering
and the Formation Transactions, the Units received by the Continuing
Investors will constitute in the aggregate an approximately 17.4%
limited partnership interest in the Operating Partnership.
. John B. Kilroy, Sr. and John B. Kilroy, Jr. will acquire all of the
voting common stock of the Services Company for the aggregate purchase
price of $5,275 in cash (representing 5.0% of its economic value), and
the Operating Partnership will acquire all of the non-voting preferred
stock of the Services Company (representing 95.0% of its economic
value).
. The Company will sell shares of Common Stock in the Offering, issue
restricted shares of Common Stock to Richard E. Moran Jr., Executive
Vice President, Chief Financial Officer and Secretary of the Company
(but not a Continuing Investor) and contribute the net proceeds from the
Offering and the issuance of such restricted stock (approximately $257.0
million in the aggregate) to the Operating Partnership in exchange for
an 82.6% general partner interest in the Operating Partnership.
. The Company, through the Operating Partnership, will borrow
approximately $84.0 million principal amount of long-term financing and
$12.0 million principal amount of short-term debt pursuant to the
Mortgage Loans.
. The Operating Partnership will apply the aggregate of the net Offering
proceeds and the Mortgage Loans toward the repayment of existing
mortgage indebtedness on certain of the Properties, the purchase of the
Acquisition Properties and payment of its expenses arising in connection
with the Offering and the Financing. See "Use of Proceeds."
. Forty-seven of the current 69 employees of KI will become employees of
the Company, the Operating Partnership and/or the Services Company,
including John B. Kilroy, Jr., the President and Chief Executive Officer
of KI, three other executive officers (Mr. Jeffrey Hawken, Executive
Vice President and Chief Operating Officer, Mr. Richard E. Moran Jr.,
Executive Vice President, Chief Financial
36
<PAGE>
Officer and Secretary, and Mr. Campbell Hugh Greenup, General Counsel)
who are not Continuing Investors and 43 other operating and
administrative employees. See "Management."
. The Operating Partnership or the Services Company will enter into
Management Agreements with respect to each of the Excluded Properties.
Pursuant to the terms of each of the Management Agreements, the
Operating Partnership or the Services Company, as applicable, will have
exclusive control and authority (subject to an operating budget to be
approved by the owners of each property) over each of the Excluded
Properties for a term of 24 months. If any of the Excluded Properties
are sold during the term of the Management Agreements, then either party
may terminate the respective Management Agreement with respect to the
property being sold upon 30 days' prior written notice. In consideration
of the services to be provided under the Management Agreements, the
Company will receive a monthly property management fee as well as any
applicable leasing commissions. See "Business and Properties--Excluded
Properties."
. Concurrent with the consummation of the Offering, the Company will enter
into Option Agreements with partnerships controlled by John B. Kilroy,
Sr. and John B. Kilroy, Jr. granting to the Operating Partnership the
exclusive right to acquire (i) the approximately 18 undeveloped acres
located at Calabasas Park Centre for cash and (ii) the office property
located at North Sepulveda Boulevard, El Segundo for cash (or for Units
after the first anniversary of the Offering at the election of the
seller), and in each case pursuant to the other terms of the respective
Option Agreement. See "Business and Properties--Excluded Properties--
Calabasas Park Centre" and "--North Sepulveda Boulevard, El Segundo" for
a discussion of the purchase price and other material terms of each
Option Agreement.
As a result of the foregoing transactions, the Company will own 12,600,000
Units of the Operating Partnership (including 100,000 Units attributable to
the issuance by the Company of 100,000 restricted shares of Common Stock to
Mr. Moran), which will represent an approximately 82.6% economic interest in
the Operating Partnership, and the Continuing Investors will own 2,652,374
Units, which will represent the remaining approximately 17.4% economic
interest in the Operating Partnership. If the Underwriters' over-allotment
option is exercised in full and the net proceeds from the additional shares of
Common Stock sold by the Company are contributed to the Operating Partnership,
the Company's percentage ownership interest in the Operating Partnership will
increase to approximately 84.5%. The Company will be the sole general partner
and retain management control over the Operating Partnership.
Holders of Units will have the opportunity after two years following the
receipt of such Units to have their Units redeemed by the Operating
Partnership at the request of the Unitholder for cash (based on the fair
market value of an equivalent number of shares of Common Stock at the time of
such redemption) or, at the Company's option, it may exchange Units for shares
of Common Stock on a one-for-one basis, subject to certain antidilution
adjustments and the obligation of certain of the Continuing Investors to
indemnify the Company in connection with the Formation Transactions, provided,
however, that if the Company does not elect to exchange such Units for shares
of Common Stock, a Unitholder that is a corporation or limited liability
company may require the Company to issue shares of Common Stock in lieu of
cash, subject to the Ownership Limit or such other limit as provided in the
Company's Articles of Incorporation, as applicable. See "Formation and
Structure of the Company--Allocation of Consideration in the Formation
Transactions," Under certain circumstances, 50% of the Units received by John
B. Kilroy, Sr., John B. Kilroy, Jr. and Kilroy Industries may be redeemed
prior to the second anniversary of the consummation of the Offering in
connection with the obligation of such Continuing Investors to indemnify the
Company in connection with the Formation Transactions. See "--Allocation of
Consideration in the Formation Transactions."
The Continuing Investors are comprised of (i) seven individuals, John B.
Kilroy, Sr., his five children, John B. Kilroy, Jr., Patrice Bouzaid, Susan
Hahn, Anne McCahon and Dana Pantuso, and Marshall L. McDaniel, a long-time
employee of KI, all of whom are "accredited investors" as defined in
Regulation D, and (ii) corporations, partnerships and trusts owned, directly
or indirectly, solely by such individuals, all of which are also "accredited
investors." See "Note 1. Organization and Basis of Presentation" to the
historical financial statements of the Kilroy Group. In addition, John B.
Kilroy, Sr. is the Company's Chairman of the Board of
37
<PAGE>
Directors and John B. Kilroy, Jr. is President and Chief Executive Officer and
a director of the Company. Consent of the Continuing Investors to the
Formation Transactions was received on or before November 3, 1996 pursuant to
a private solicitation thereof in compliance with Regulation D.
REASONS FOR THE REORGANIZATION OF THE COMPANY
The Company believes that the benefits of the Formation Transactions
outweigh the detriments to the Company. The benefits of the Company's REIT
status and structure, as opposed to the status and structure of the
Partnerships, include the following:
. Access to Capital. The Company's structure will, in the Company's
judgment, provide it with greater access to capital for refinancing and
growth. Sources of capital include the Common Stock sold in the Offering
and possible future issuances of debt or equity through public offerings
or private placements. The financial strength of the Company should
enable it to obtain financing at better rates and on better terms than
would otherwise be available to the Partnerships, some of which are
single asset entities.
. Growth of the Company. The Company's structure will allow stockholders,
including the Continuing Investors through their ownership of Units, an
opportunity to participate in the growth of the real estate market
through an ongoing business enterprise. In addition to the existing
portfolio of Properties, the Company gives stockholders an interest in
all future development by the Company and in the fee-producing service
businesses being contributed by the Company to the Services Company.
. Risk Diversification. The Company's structure provides stockholders a
diversification of risk and reward not available in single asset
entities by providing them with an equity interest in a REIT in which
there has been a pooling together of similar properties and by
consolidating the operating business and future development projects.
. Deleveraging. Upon completion of the Offering and the Formation
Transactions, the Company will have substantially reduced the debt
encumbering the Properties. This reduction, with a consequent reduction
in debt service, will increase the aggregate amount of cash available
for distribution to stockholders. The Formation Transactions also will
permit the Company to refinance its existing indebtedness at more
favorable rates.
. Liquidity. The equity interests in the Partnerships are typically not
marketable. The Company's structure allows stockholders, including the
Continuing Investors, the opportunity to liquidate their capital
investment through the disposition of Common Stock or Units. Beginning
on the second anniversary of the consummation of the Offering, holders
of Units will have the opportunity to have their Units redeemed by the
Operating Partnership for cash equal to the value of an equal number of
shares of Common Stock, or the Company may elect to exchange such Units
for an equivalent number of shares of Common Stock, provided, however,
if the Company does not elect to exchange such units for shares of
Common Stock, a holder of Units that is a corporation or limited
liability company may require the Company to issue Common Stock in lieu
thereof, subject to the Ownership Limit or such other limit as provided
in the Company's Articles of Incorporation, as applicable.
. Public Market Valuation of Real Estate Assets. The Company's structure
may allow investors to benefit potentially from the current public
market valuation of REITs, which management believes is favorable in
light of the current private market valuation of comparable assets.
. Tax Deferral. The Formation Transactions provide to the Continuing
Investors the opportunity to defer the tax consequences that would arise
from a sale or contribution of their interests in the Properties and
other assets to the Company or to a third party.
The detriments of the Company's REIT status and structure as opposed to the
status and structure of the Partnerships include the following (see also "Risk
Factors"):
. Conflicts of Interest. Management of the Company will be subject to a
number of conflicts of interest in the operation of the Operating
Partnership as well as the formation of the Company. Among other
38
<PAGE>
conflicts, there will be no independent valuation or appraisal of the
Properties, and no arm's-length negotiation of the terms of the option
agreements relating to the Excluded Properties, and there can be no
assurance that the value given to the Continuing Investors by the
Company for such assets is equal to their fair market value. Because
John B. Kilroy, Sr. and John B. Kilroy, Jr. will be directors or
officers of the Company, they will have a conflict of interest with
respect to enforcing the agreements transferring their interest in
certain assets to the Company. In addition, because the Continuing
Investors and officers of the Company may suffer different tax
consequences than the Company upon the sale or refinancing of any of the
Properties, their interests regarding the timing and pricing of such
sale or refinancing may conflict with those of the Company. So long as
the Continuing Investors own more than 5% of the outstanding Units, the
Continuing Investors will be able to veto or preclude the sale of the
Office Property located at 2260 E. Imperial Highway at Kilroy Airport
Center at El Segundo at any time prior to the seventh anniversary of the
Offering. In addition, the Company is required to use its commercially
reasonable efforts to structure any merger, consolidation or other
business combination, any sale or other disposition of all or
substantially all of its assets, or any reclassification,
recapitalization or change of its outstanding equity interests, to avoid
causing the limited partners to recognize gain for federal income tax
purposes by virtue of the occurrence of or their participation in such
transaction. The Operating Partnership will also use commercially
reasonable efforts to cooperate with the limited partners to minimize
any taxes payable in connection with any repayment, refinancing,
replacement or restructuring of indebtedness, or any sale, exchange or
any other disposition of assets, of the Operating Partnership. See
"Partnership Agreement of the Operating Partnership--Certain Limited
Partner Approval Rights."
. Consent Rights of Limited Partners. The Company will be the sole general
partner of the Operating Partnership and will own and control 82.6% of
the ownership interests in the Operating Partnership. However, under the
terms of the Partnership Agreement, the Company may not withdraw as
general partner of the Operating Partnership or transfer or assign its
interest in the Operating Partnership without the consent of partners
holding in the aggregate at least 60% of all interests in the Operating
Partnership. See "Partnership Agreement of the Operating Partnership--
Transferability of Interests". In addition, until the seventh
anniversary of the Offering the general partner of the Operating
Partnership will not be able to dissolve the Operating Partnership, or
sell the Office Property located at 2260 E. Imperial Highway at Kilroy
Airport Center at El Segundo, without the consent of limited partners
holding in the aggregate more than 50% of all Units representing limited
partnership interests in the Operating Partnership, provided that the
limited partners own at least 5% of the outstanding Units (including
Units owned by the Company). See "Partnership Agreement of the Operating
Partnership--Certain Limited Partner Approval Rights". As a consequence
of the exercise of these consent and approval rights, the Company may be
precluded from taking action that the Board of Directors believes is in
the best interest of all stockholders. See "Partnership Agreement of the
Operating Partnership--Transferability of Interests" and "--Certain
Limited Partner Approval Rights."
. Influence of Certain Continuing Investors. John B. Kilroy, Sr., the
Company's Chairman of the Board of Directors, and John B. Kilroy, Jr.,
the Company's President and Chief Executive Officer and one of its
directors, will own, together with the other Continuing Investors, Units
exchangeable for shares of the Common Stock equal to approximately 17.4%
of the total outstanding shares. In addition, the Messrs. Kilroy will
hold two of the Company's five seats on the Board of Directors. Under
the terms of the Company's charter, no other stockholder presently is
permitted to own in excess of 7.0% of the Common Stock. Consequently,
although the Messrs. Kilroy will not be able to take action on behalf of
the Company without the concurrence of other members of the Company's
Board of Directors, they will be able to block certain transactions by
the Operating Partnership and exert substantial influence over the
Company's affairs.
. Loss of Individual Asset Growth Opportunity. Any given asset may over
time outperform the Common Stock. Any investor who exchanges an interest
in a single asset for a smaller interest in a
39
<PAGE>
group of assets will receive a lower return on investment if the asset
from which the investor traded outperforms the Common Stock.
. No Anticipated Distributions from Asset Sales. Unlike the Partnerships,
in which the net proceeds from the sale of assets were generally
distributed to the partners, the Company is not expected to have
significant asset sales. Moreover, the Company may decide to reinvest
the proceeds from asset sales rather than distribute them to
stockholders. Although stockholders will have the ability to sell their
shares of Common Stock (subject to certain restrictions discussed
herein), they would not be able to rely upon the mere passage of time to
realize their share of the gains, if any, that might be recognized at
any point in time from a liquidation of all or part of the assets of the
Company.
. Public Market Valuation. Although the public market may value real
estate assets on a basis that is attractive in relation to private
market real estate values, there is no assurance that this condition, if
it exists, will continue. In the 1980s, REIT shares generally traded at
a discount to the underlying private market values of the REIT
properties, rather than at a premium. This condition could return. In
addition, an increase in interest rates could adversely affect the
market value of the shares of Common Stock.
. Costs of the Transaction. The aggregate expenses of the Offering,
including the underwriting discount, are expected to be approximately
$24.2 million, assuming gross proceeds of the Offering of approximately
$281.3 million. In addition, the Operating Partnership will incur costs
of approximately $1.8 million in the aggregate in connection with the
Financing.
. Costs of Operating Public Company. The Company expects to incur expenses
in connection with the requirements of being a public company, including
without limitation, preparation of financial statements and proxies,
printing and filing costs, directors' and officers' insurance, and legal
and accounting fees, estimated to be $1.0 million annually.
COMPARISON OF COMMON STOCK AND UNITS
Conducting the Company's operations through the Operating Partnership allows
the Continuing Investors to defer certain tax consequences by contributing
their interests in Properties to the Operating Partnership and also offers
favorable methods of accessing capital markets. Units in the Operating
Partnership will be held by the Continuing Investors and the Company. Each
Unit was designed to result in a distribution per Unit equal to a distribution
per share of Common Stock (assuming the Company distributes to its
stockholders all amounts it receives as distributions from the Operating
Partnership). Beginning two years following the consummation of the Offering,
each Unit issued in the Formation Transactions is redeemable by the Operating
Partnership at the request of the Unitholder for cash payable by the Operating
Partnership or, at the Company's option, the Company may exchange Units for
Common Stock on a one-for-one basis (subject to certain antidilution
adjustments and certain limitations on exchange to preserve the Company's
status as a REIT), provided, however, that if the Operating Partnership elects
to redeem such Units for cash, a Unitholder that is a corporation or a limited
liability company may require the Company to issue shares of Common Stock in
lieu of cash. There are, however, certain differences between the ownership of
Common Stock and Units, including:
. Voting Rights. Holders of Common Stock may elect the Board of Directors
of the Company, which, as the general partner of the Operating
Partnership, controls the business of the Operating Partnership.
Unitholders may not elect directors of the Company.
. Transferability. The shares of Common Stock sold in the Offering will be
freely transferable under the Securities Act by holders who are not
affiliates of the Company or the Underwriters. The Units and the shares
of Common Stock into which they are exchangeable are subject to transfer
restrictions under applicable securities laws and under the Partnership
Agreement, including the required consent of the general partner to the
admission of any new limited partner, and 50% of the Units of John B.
Kilroy, Sr., John B. Kilroy, Jr. and Kilroy Industries will be pledged
to secure certain indemnity obligations. See "Shares Available for
Future Sale" for a description of the Registration Rights Agreement
applicable to holders of Units.
40
<PAGE>
. Distributions. Because the relative tax basis of the contributions by
the public investors and the Continuing Investors are expected to be
different, it is possible that the public investors' distribution will
include a return of capital that exceeds that of the Continuing
Investors. See "Federal Income Tax Consequences."
ADVANTAGES AND DISADVANTAGES OF THE FORMATION TRANSACTIONS TO UNAFFILIATED
STOCKHOLDERS
The potential advantages of the Formation Transactions to unaffiliated
stockholders of the Company include their ability to participate in the cash
flow of the Properties through their ownership in the Company and in all
future office and industrial property acquisitions and development by the
Company. The potential disadvantages of such transactions to unaffiliated
stockholders of the Company may be several, including the impact of shares
available for future sale and substantial and immediate dilution in the
tangible book value per share, and the lack of arm's-length negotiations to
determine the terms of the transfers of the Properties to the Company and the
Operating Partnership and the terms of the option agreements relating to the
Excluded Properties. See the discussion of such matters under "Risk Factors."
BENEFITS OF THE FORMATION TRANSACTIONS TO THE CONTINUING INVESTORS
The principals of KI proposed the Formation Transactions to the Continuing
Investors because they believe that the benefits of the organization of the
Company for the Continuing Investors outweigh the detriments to them. Benefits
to the Continuing Investors include:
. improved liquidity of their interests in the Properties and increased
diversification of their investment;
. repayment of indebtedness in the aggregate net amount of approximately
$229.5 million resulting from the refinancing of existing mortgage
indebtedness, of which approximately $37.2 million is guaranteed by John
B. Kilroy, Sr., including $8.7 million which also is guaranteed by John
B. Kilroy, Jr., and the repayment of approximately $3.4 million of
personal indebtedness of John B. Kilroy, Sr.;
. an employment agreement between the Company and John B. Kilroy, Jr.
providing annual salary, incentive compensation (including Common Stock
options) and other benefits for his services as an officer of the
Company (see "Management--Employment Agreements"), and a grant of
options to purchase Common Stock to John B. Kilroy, Sr. (see
"Management--Stock Incentive Plan"); and
. the deferral of certain tax consequences of taxable dispositions of
assets through the creation of the Operating Partnership and the direct
contribution of their interests in the Properties to the Operating
Partnership in exchange for Units.
Set forth below are the (i) names of executive officers of the Company and
certain other persons involved in the Formation Transactions; (ii) net book
value of the interests of such persons in the Properties being transferred;
(iii) value of the Units, (iv) the number of shares of Common Stock, (v) cash,
(vi) the number of stock options, (vii) consideration for the Excluded
Properties and (viii) repayment of debt and/or termination of guarantees that
were outstanding as of December 31, 1996, to be received by the named persons
in the Formation Transactions:
<TABLE>
<CAPTION>
NET BOOK DEBT
VALUE OF REPAYMENT/
PROPERTY ANNUAL NO. OF SHARES NO. OF CONSIDERATION GUARANTEE
INTERESTS SALARY OF COMMON CASH STOCK FOR EXCLUDED TERMINATION
$ $ UNITS $ STOCK $ OPTIONS PROPERTIES $
--------- ------ ------- ------------- ---- ------- ------------- -----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
John B. Kilroy, Sr. .... $ (76,233) -- $28,177(1) -- -- 15 --(2) $40,636(3)
John B. Kilroy, Jr. .... (33,231) $200 28,177(1) -- -- 250 --(2) 8,700(4)
KI(5)................... -- -- -- -- -- -- -- --
Persons other than
officers/directors(6).. (3,759) -- 3,324 -- -- -- --(2) --
--------- ---- ------- --- --- --- --- -------
$(113,223) $200 $59,678 -- -- 265 --(2) $49,336
========= ==== ======= === === === === =======
</TABLE>
(footnotes on next page)
41
<PAGE>
- --------
(1) Includes the Units to be beneficially owned by KI which are allocated to
John B. Kilroy, Sr. and John B. Kilroy, Jr., the only shareholders of KI,
in accordance with their respective percentage ownership of KI. The value
of the Units received by the Continuing Investors in connection with the
Formation Transactions was determined assuming a Unit value equal to the
assumed per share initial offering price of $22.50.
(2) In the event the Company exercises its option with respect to any of the
Excluded Properties, each of John B. Kilroy, Sr. and John B. Kilroy, Jr.
will receive approximately 49.0% and 51.0%, respectively, of the purchase
price for the sale of the parcels at Calabasas Park Centre and
approximately 65.1% and 18.2%, respectively, of the purchase price for the
sale of the properties located at North Sepulveda Boulevard in El Segundo,
in each case based on their ownership interest in such property. In
addition, each of Patrice Bouzaid, Susan Hahn, Anne McCahon and Dana
Pantuso, the daughters of John B. Kilroy, Sr., will receive approximately
4.2% of the purchase price for the sale of the properties located at North
Sepulveda Boulevard in El Segundo based on their ownership interest in
such property. The exercise price for the options for the Excluded
Properties will vary depending on the date of exercise. See "Business and
Properties--Excluded Properties."
(3) Represents $3.4 million of personal indebtedness repaid with proceeds of
indebtedness incurred by the Company within the past 12 months, which
indebtedness will be repaid with proceeds of the Offering, and $37.2
million of personal guarantees of indebtedness of the Kilroy Group secured
by the Properties, which indebtedness will be repaid with proceeds of the
Offering. See "Use of Proceeds."
(4) Represents the termination of personal guarantees of indebtedness of the
Kilroy Group secured by the Properties, which indebtedness will be repaid
with proceeds of the Offering. See "Use of Proceeds."
(5) The amounts attributable to KI are reflected in the amounts attributable
to each of John B. Kilroy, Sr. and John B. Kilroy, Jr., the only
shareholders of KI, who own 81.3% and 18.7% of the common stock of KI,
respectively.
(6) The persons other than officers/directors of the Company are Patrice
Bouzaid, Susan Hahn, Anne McCahon and Dana Pantuso, the daughters of John
B. Kilroy, Sr., and Marshall McDaniel, a long-time employee of KI, all of
whom are Continuing Investors.
The following table contains information concerning the grant of stock
options under the Company's 1997 Stock Incentive Plan expected to be made for
the year ended December 31, 1997 to John B. Kilroy, Sr. and John B. Kilroy,
Jr. The table also lists potential realizable values of such options on the
basis of assumed annual compounded stock appreciation rates of 5% and 10% over
the life of the options.
OPTION GRANTS IN CONNECTION WITH THE FORMATION TRANSACTIONS
<TABLE>
<CAPTION>
NUMBER OF POTENTIAL REALIZABLE
SECURITIES VALUE AT
UNDERLYING EXERCISE ASSUMED ANNUAL
OPTIONS OR BASE RATES OF SHARE
GRANTED PRICE EXPIRATION PRICE APPRECIATION
(#)(1) PER SHARE(2) DATE(3) FOR OPTION TERM(4)
---------- ------------ ------------ ---------------------
(IN THOUSANDS)
5% 10%
---------- ----------
<S> <C> <C> <C> <C> <C>
John B. Kilroy, Sr. .... 15,000 $22.50 January 2007 $ 212 $ 538
John B. Kilroy, Jr. .... 250,000 $22.50 January 2007 $3,538 $8,965
</TABLE>
- --------
(1) The options granted to Messrs. Kilroy will vest in three equal
installments on the first, second and third anniversaries of the date of
the grant.
(2) Assuming an initial public offering price of the Common Stock of $22.50
per share. The option price will be equal to the initial public offering
price of the Common Stock.
(3) The expiration date of the options will be ten years after the date of
grant.
(4) The potential realizable value is reported net of the option price, but
before income taxes associated with exercise. These amounts represent
assumed annual compounded rates of appreciation at 5% and 10% only from
the date of grant to the expiration date of the option.
No third party determination of the value of the Properties was sought or
obtained in connection with the acquisition by the Operating Partnership of
the Properties, and the terms of each of the Option Agreements relating to the
Excluded Properties were not determined through arm's-length negotiations.
There can be no assurance that the aggregate value of the consideration
received by the participants in the Formation Transactions, including the
grant of the options relating to the Excluded Properties, is equivalent to the
fair market value of the properties and assets acquired by the Company and the
Operating Partnership in connection with the Formation Transactions. See "Risk
Factors--No Appraisals; Consideration to be Paid for Properties
42
<PAGE>
and Other Assets May Exceed their Fair Market Value" and "--Conflicts of
Interest--Competitive Real Estate Activities of Management."
DETERMINATION AND VALUATION OF OWNERSHIP INTERESTS
The Company's percentage interest in the Operating Partnership was
determined based upon the percentage of estimated cash available for
distribution required to pay estimated cash distributions to stockholders of
the Company representing an annual distribution rate equal to 6.89% of the
assumed initial public offering price of the Common Stock of $22.50. The
ownership interest in the Operating Partnership allocated to the Company is
equal to this percentage of estimated cash available for distribution and the
remaining interest in the Operating Partnership will be allocated to the
Continuing Investors receiving Units in the Formation Transactions. The
parameters and assumptions used in deriving the estimated cash available for
distribution are described under the caption "Distribution Policy."
Based on the issuance of 12,500,000 shares of Common Stock in the Offering
plus 100,000 restricted shares of Common Stock to Richard E. Moran Jr. (who is
not a Continuing Investor), the Company will hold an approximately 82.6%
ownership interest in the Operating Partnership and the Continuing Investors
will hold an approximately 17.4% ownership interest in the Operating
Partnership. If the Underwriters' over-allotment option is exercised in full,
the Company will hold an approximately 84.5% ownership interest in the
Operating Partnership and the Continuing Investors will hold an approximately
15.5% ownership interest in the Operating Partnership.
In connection with the Offering, the Company did not obtain appraisals with
respect to the market value of any of the Properties or other assets that the
Company will own immediately after consummation of the Offering and the
Formation Transactions or an opinion as to the fairness of the allocation of
shares to the purchasers in the Offering. The initial public offering price
will be determined based upon the estimated cash available for distribution
and the factors discussed under the caption "Underwriting," rather than a
property by property valuation based on historical cost or current market
value. This methodology has been used because management believes it is
appropriate to value the Company as an ongoing business rather than with a
view to values that could be obtained from a liquidation of the Company or of
individual properties owned by them. See "Underwriting."
ALLOCATION OF CONSIDERATION IN THE FORMATION TRANSACTIONS
No independent valuations or appraisals of the Properties were obtained in
connection with the Formation Transactions. The allocation of Units among the
Continuing Investors was based primarily on the relative contributions to net
operating income and other factors relating to the value of the Company as an
on-going enterprise, and generally was not determined through arm's-length
negotiations. There can be no assurance that the fair market value of the
Properties transferred to the Company will equal the sum of the value of the
Units issued to the Continuing Investors.
Certain Continuing Investors (the "Indemnitors") have agreed pursuant to a
supplemental representations, warranties and indemnity agreement, a form of
which has been filed as an exhibit to the Registration Statement of which this
Prospectus is a part, to make certain representations and warranties
concerning the Properties, and have also agreed to indemnify the Company
against breaches of such representations and warranties. These representations
and warranties will survive the closing of the Offering until June 1998 and
the related indemnification obligations generally will be joint and several
among the Indemnitors. Fifty percent of the Units received by John B. Kilroy,
Sr., John B. Kilroy, Jr. and Kilroy Industries in the Formation Transactions
will be pledged to secure their indemnification obligations under the
supplemental representations, warranties and indemnity agreement.
43
<PAGE>
FORMATION OF KILROY SERVICES, INC.
Prior to consummation of the Offering, Kilroy Services, Inc. will be formed
under the laws of the State of Maryland to succeed to the development
activities of the Kilroy Group. John B. Kilroy, Sr. and John B. Kilroy, Jr.
together will own 100% of the voting common stock of the Services Company,
representing 5.0% of its economic value. The Operating Partnership will own
100% of the nonvoting preferred stock of the Services Company, representing
95.0% of its economic value. The ownership structure of the Services Company
is necessary to permit the Company to share in the income of the activities of
the Services Company and also maintain its status as a REIT. Although the
Company anticipates receiving substantially all of the economic benefit of the
businesses carried on by the Services Company through the Company's right to
receive dividends through the Operating Partnership's investment in the
Services Company's nonvoting preferred stock, the Company will not be able to
elect the Services Company's officer or directors and, consequently, may not
have the ability to influence the operations of the Services Company or
require the declaration of dividends. See "Risk Factors--Risks of Development
Business and Related Activities Being Conducted by the Services Company--
Adverse Consequences of Lack of Control Over the Businesses of the Services
Company."
The Services Company initially will have three directors, including Campbell
Hugh Greenup, who also serves as the General Counsel of the Company, and
Jeffrey C. Hawken, who also serves as the Executive Vice President and Chief
Operating Officer of the Company. See "Management." In addition, the Services
Company will have a third and independent director. Campbell Hugh Greenup will
serve as the Services Company's President and Secretary, and David Armanetti
will serve as its Vice President of Development Services and Treasurer. Prior
to the Offering, Mr. Greenup was a Senior Vice President for Development of KI
and Mr. Armanetti was a Vice President for Development of KI.
44
<PAGE>
THE COMPANY
GENERAL
The Company has been formed to succeed to the business of the Kilroy Group
consisting principally of a portfolio of Class A suburban office and
industrial buildings in prime locations primarily in Southern California, and
the Kilroy Group's real estate ownership, acquisition, development, leasing
and management businesses. Upon the consummation of the Offering and the
Formation Transactions, the Company (through the Operating Partnership) will
own 14 Office Properties encompassing an aggregate of approximately 2.0
million rentable square feet and 12 Industrial Properties encompassing an
aggregate of approximately 1.3 million rentable square feet. Eleven of the 14
of the Office Properties and 11 of the 12 Industrial Properties are located in
prime Southern California suburban submarkets (including a complex of three
Office Properties located in El Segundo, adjacent to Los Angeles International
Airport, presently the nation's second largest air-cargo port, and a complex
of five Office Properties located adjacent to the Long Beach Municipal
Airport). The Company also will own three Office Properties located adjacent
to the Seattle-Tacoma International Airport in the State of Washington and one
Industrial Property located in Phoenix, Arizona. As of September 30, 1996, the
Office Properties were approximately 79.8% leased to 130 tenants and the
Industrial Properties were approximately 93.7% leased to 20 tenants. The
average age of the Office Properties and the Industrial Properties is
approximately 12 years and 24 years, respectively. The Company developed and
leased all but two of the 14 Office Properties and all but five of the 12
Industrial Properties, and upon consummation of the Offering and acquisition
of the Acquisition Properties will manage all of the Properties.
The Company was founded in 1947 by John B. Kilroy, Sr., a nationally
prominent member of the real estate community, and is led by John B. Kilroy,
Jr., the Company's President since 1981. The Company's executive officers have
been with the Company for an average of approximately 13 years. The Company
has been involved in the ownership, acquisition, entitlement, development,
leasing and management of commercial properties, the majority of which are
located in Southern California, for nearly 50 years and has been focusing
primarily on office and industrial development for the past 30 years. The
Company presently has 47 employees, 34 of whom are located at the Company's
headquarters at Kilroy Airport Center at El Segundo, California.
The Company's strategy has been to own, develop, acquire, lease and manage
Class A properties in select locations in key suburban submarkets, primarily
in Southern California, that the Company believes have strategic advantages
compared to neighboring submarkets. The Company's extensive experience and
long-term presence in Southern California have enabled it to form key
alliances and working relationships with major corporate tenants,
municipalities and landowners in Southern California that have resulted in a
variety of development projects and provide an on-going source of development
and acquisition opportunities. The Southern California Properties located in
Los Angeles and Orange Counties are situated in locations which the Company
believes are among the best within key submarkets, offering tenants: (i) lower
business taxes and operating expenses than adjoining submarkets; (ii) access
to highly skilled labor markets; (iii) access to major transportation
facilities such as freeways, airports and the expanded Southern California
light-rail system; (iv) proximity to the Los Angeles-Long Beach port complex,
which presently ranks as the largest commercial port in the United States; and
(v) for tenants with their names on certain Properties, visibility to freeway
and airline travelers.
The Company also has focused on the design and construction of its projects.
The Office Properties developed by the Company (Kilroy Airport Center at El
Segundo, Kilroy Airport Center Long Beach and SeaTac Office Center) were
designed and developed to above-standard specifications, with an emphasis on
long-term operating efficiency and tenant comfort. The Industrial Properties
also were designed and developed to provide above-standard quality and meet
the long-term needs of tenants and were designed as multi-use facilities to
satisfy various types of manufacturing, distribution and office uses. As a
result, the Industrial Properties continue to serve the evolving needs of
their tenants, some of which have recently invested substantially in long-term
tenant improvements. As a result of the high quality and strategic location of
the Properties, and the Company's attention to the highest quality management
and service, the Company believes that the Properties attract major corporate
tenants and historically have achieved among the highest occupancy, tenant
retention and rental rates,
45
<PAGE>
both within their respective submarkets and as compared to their respective
neighboring submarkets. See "Business and Properties--Office Properties" and
"--Industrial Properties."
The Company has created value by effectively working with municipalities,
large landowners and other members of the real estate community in Southern
California, and has maintained strong relationships at all levels of
government, as well as with financial institutions and major corporate
tenants. In 1981, the Company initiated the El Segundo Employers' Association,
a traffic and management organization composed of major employers in the El
Segundo area. The organization has worked with local government and has been
instrumental in the furtherance of infrastructure developments in El Segundo
and throughout the surrounding area, including two recent developments that
management believes will have a substantial economic benefit to the El Segundo
submarket. First, in October 1994, Interstate Highway I-105 (the "I-105
Freeway") opened, which crosses Los Angeles from east to west and provides
substantially improved access to El Segundo and Los Angeles International
Airport. A second infrastructure development in the El Segundo submarket is a
major east-west grade-separated light rail commuter line (the "Green Line").
The Green Line runs adjacent to Kilroy Airport Center at El Segundo.
Management believes that the Green Line, which opened in August 1995, will add
significant value to the El Segundo submarket. See "Business and Properties--
The Company's Southern California Submarkets--El Segundo Submarket."
The Company's major tenants include, among others, Hughes Space &
Communications, a tenant since 1984, which is engaged in high-technology
commercial activities including satellite development and related applications
such as DirecTV, as well as CompuServe, Inc., Employer's Health Insurance Co.,
the Federal Aviation Administration, First Nationwide Mortgage Corporation,
Furon Co., Inc., GTE Directories Sales Corporation, Great Western Bank,
HealthNet, Mattel, Inc. (which has its worldwide corporate headquarters in
El Segundo), North American Title Company, Northwest Airlines, Inc., Olympus
America, Inc., The Prudential Insurance Company of America, R.L. Polk &
Company, SCAN HealthPlan, Senn-Delaney Leadership Consulting Group, Inc.,
Transamerica Financial Services, Inc., 20th Century Industries, UniCare
Financial Corporation and Unihealth. As of December 31, 1995, the Company's
ten largest office tenants and ten largest industrial tenants (based upon
annual base rents as of December 31, 1995) had leased office space from the
Company for an average of 5.3 years. The Company's strong relationships with
its tenants is further evidenced by its average tenant retention rate (based
upon rentable square feet) for the period beginning January 1, 1994 and ending
September 30, 1996, which was 71.7% for the Properties located in the Southern
California Area and 50.9% for the Properties overall. The lower overall
retention rate results primarily from the 1993 termination of a lease,
scheduled to expire in 1995, for 211,000 net rentable square feet at the
SeaTac Office Center. The Company's extensive experience and long-term
presence in Southern California have enabled it to form key alliances and
working relationships with large corporate tenants, municipalities and
landowners that have led to a variety of development projects and provide a
continuing source of development and acquisition opportunities with
institutional sellers. As a result of its experience and relationships, the
Company currently has exclusive rights to develop approximately 24 acres of
developable land (net of the acreage required for streets) at Kilroy Airport
Center Long Beach. These properties are presently entitled for over
900,000 rentable square feet of office, industrial and retail space.
The Company believes that the foundation for its growth in future years will
be the strengthening Southern California economy, the quality and strategic
location of its Properties, the economic benefits of its submarkets to
tenants, its capital structure, its access to public capital markets, the lack
of new construction of office properties in its submarkets, its access to
developable properties, the knowledge and experience of its senior management
team and its long-term relationships with the Southern California real estate
community, large corporate tenants, municipalities, landowners and
institutional sellers. In addition, the Company believes that it will be one
of a limited number of REITs focusing on office and industrial properties and
that it will be the only REIT with a 50-year operating history concentrating
primarily on suburban Southern California office and industrial properties. In
the 12 months following the consummation of the Offering, the Company expects
sources of potential growth in cash available for distribution per share from
the amount set forth under the caption "Distribution Policy," through: (i) the
further leasing of its available space, currently approximately 400,000
rentable square feet; (ii) the renewal of leases for approximately 60,000
rentable square feet which
46
<PAGE>
expire during such period; and (iii) the acquisition of strategic properties
with Units and/or with available cash and borrowings under the proposed Credit
Facility and its approximately $70 million of working capital cash reserves,
upon consummation of the Offering. In the second 12-month period following
consummation of the Offering, the Company expects sources of potential growth
in cash flow per share from: (i) contractual increases in base rent payments
from tenants; (ii) continued leasing of available space; (iii) the acquisition
of strategic properties; and (iv) the contemplated completion of certain
planned development activities. In addition, the Company presently plans to
expand one or more of its Industrial Properties during the next two years,
subject to substantial pre-leasing. There can be no assurance, however, that
the Company will achieve any growth in cash available for distribution per
share, that available space will be leased, that leases scheduled to expire
will be renewed, that the Company will successfully complete any of its
planned development activities or that the Company will be able to acquire and
develop any of the Development Properties or other properties that may become
available. See "Risk Factors--Real Estate Investment Considerations--Risks of
Real Estate Acquisition and Development."
The Company will continue its practice of managing or administering
substantially all leasing, management, tenant improvements and construction on
an "in-house" basis and will be self-administered and self-managed. The
Company intends to elect to qualify as a REIT for federal income tax purposes
beginning with its taxable year ending December 31, 1997. See "Federal Income
Tax Consequences--Taxation of the Company."
Kilroy Realty Corporation, a Maryland corporation, has executive offices at
2250 East Imperial Highway, El Segundo, CA 90245 and its telephone number is
(213) 772-1193.
GROWTH STRATEGIES
The Company's objectives are to maximize growth in cash flow per share and
to enhance the value of its portfolio through effective management, operating,
acquisition and development strategies. The Company believes that
opportunities exist to increase cash flow per share: (i) by acquiring office
and industrial properties with attractive returns in strategic suburban
submarkets where such properties complement its existing portfolio; (ii) from
contractual increases in base rent; (iii) as a result of increasing rental and
occupancy rates and decreasing concessions and tenant installation costs as
vacancy rates in the Company's submarkets generally continue to decline; (iv)
by developing properties for the benefit of the Company where such development
will result in a favorable risk-adjusted return on investment; and (v) by
expanding Properties within the Company's existing industrial portfolio. The
Company's ability to achieve its growth strategy will be aided by its working
capital cash reserves of approximately $70 million upon consummation of the
Offering and the proposed Credit Facility.
The Company believes that a number of factors will enable it to achieve its
business objectives, including: (i) the opportunity to lease available space
at attractive rental rates because of increasing demand and, with respect to
the Office Properties, the present lack of new construction in the Southern
California submarkets in which most of the Properties are located; (ii) the
presence of distressed sellers and inadvertent owners (through foreclosure or
otherwise) of office and industrial properties in the Company's markets, as
well as the Company's ability to acquire properties with Units (thereby
deferring the seller's taxable gain), all of which create enhanced acquisition
opportunities; (iii) the quality and location of the Properties; (iv) the
Company's access to development opportunities as a result of its significant
relationships with large Southern California corporate tenants, municipalities
and landowners and its nearly 50-year presence in the Southern California
market; and (v) the limited availability to competitors of capital for
financing development, acquisitions or capital improvements. Management
believes that the Company is well positioned to exploit existing opportunities
because of its extensive experience in its submarkets, its seasoned management
team and its proven ability to develop, lease and efficiently manage office
and industrial properties. In addition, the Company believes that public
ownership and its capital structure will provide new opportunities for growth.
There can be no assurance, however, that the Company will be able to lease
available space, complete any property acquisitions, successfully develop any
land acquired or improve the operating results of any developed properties
that are acquired. See "Business and Properties--Development, Leasing and
Management Activities."
47
<PAGE>
Operating Strategies. The Company will focus on enhancing growth in cash
flow per share by: (i) maximizing cash flow from existing Properties through
active leasing, contractual base rent increases and effective property
management; (ii) managing operating expenses through the use of in-house
management, leasing, marketing, financing, accounting, legal, construction
management and data processing functions; (iii) maintaining and developing
long-term relationships with a diverse tenant group; (iv) attracting and
retaining motivated employees by providing financial and other incentives to
meet the Company's operating and financial goals; and (v) continuing to
emphasize capital improvements to enhance the Properties' competitive
advantages in their markets.
The Company believes that the strength of its leasing is demonstrated by the
Company's leasing activity since 1993. In the period from January 1, 1993 to
September 30, 1996, the Company leased or renewed leases for an aggregate of
approximately 1.0 million rentable square feet of office space and
approximately 718,000 rentable square feet of industrial space. As of December
31, 1995, the Office Properties in the Southern California Area were
approximately 89.5% leased as compared to approximately 82.0% for the Southern
California Area, approximately 89.2% for the El Segundo submarket and
approximately 85.4% in the Long Beach submarket. In addition, at December 31,
1995, the Industrial Properties were approximately 91.4% leased as compared to
approximately 82.3% and approximately 87.1% for industrial properties located
in Los Angeles and Orange Counties, respectively. As of September 30, 1996,
(i) the Office Properties contained approximately 2.0 million rentable square
feet and were approximately 79.8% leased, and (ii) the Industrial Properties
contained an aggregate of approximately 1.3 million rentable square feet and
were approximately 93.7% leased. In addition, the number of individual lease
transactions since 1992, including the results for the nine-month period ended
September 30, 1996, averaged over 33 per year. See "Business and Properties--
General," "--Properties," "--Occupancy and Rental Information," and "--The
Company's Southern California Submarkets."
Approximately 1.0 million aggregate rentable square feet in the Properties
was leased by the Company from January 1, 1992 through December 31, 1994, a
period which management characterizes as recessionary. Based on the leases the
Company signed in 1996, and the findings in an independent study of the
Southern California real estate market commissioned by the Company, management
believes that the recent trend toward increasing rental rates in Class A
office and industrial buildings in the Company's Southern California
submarkets presents significant opportunities for growth. In addition,
approximately 66.5% of the Company's net rentable square feet is subject to
leases expiring in 2000 or beyond, when management expects asking rents for
the respective Properties to be higher than the rents paid pursuant to such
leases. In addition, as of December 31, 1996 approximately 36.7% of the
Company's total base rent (representing approximately 23.7% of the aggregate
net rentable square feet of the Properties) was attributable to leases with
Consumer Price Index increases and approximately 28.1% of the Company's total
base rent (representing approximately 30.5% of the aggregate net rentable
square feet of the Properties) is attributable to leases with other specified
contractual increases. No assurance can be given, however, that new leases
will reflect rental rates greater than or equal to current rental rates or
future economic conditions will support higher rental rates. See "Risk
Factors--Real Estate Investment Considerations."
Acquisition Strategies. The Company will seek to increase its cash flow per
share by acquiring additional quality office and industrial properties,
including properties that may: (i) provide attractive initial yields with
significant potential for growth in cash flow from property operations; (ii)
are strategically located, of high quality and competitive in their respective
submarkets; (iii) are located in the Company's existing submarkets and/or in
other strategic submarkets where the demand for office and industrial space
exceeds available supply; or (iv) have been under-managed or are otherwise
capable of improved performance through intensive management and leasing that
will result in increased occupancy and rental revenues. The Company believes
that the Southern California market is an established and mature real estate
market in which property owners generally have a low tax basis (and,
accordingly, the potential for large taxable gains) in their properties.
Management believes that the Company's extensive experience, capital structure
and ability to acquire properties for Units, and thereby defer a seller's
taxable gain, if any, will enhance the ability of the Company to consummate
transactions quickly and to structure more competitive acquisitions than other
real estate companies
48
<PAGE>
in the market which lack its access to capital or the ability to issue Units.
See "Business and Properties-- Development, Leasing and Management
Activities."
The Company has entered into an agreement to acquire the two office
properties that comprise Phase I of Kilroy Airport Center Long Beach. Kilroy
Airport Center Long Beach Phase I was developed by the Company in 1987 and has
been leased and managed by the Company since its inception. In addition, the
Company has entered into an agreement to purchase an office property located
in Thousand Oaks, California. The Company also has entered into an agreement
to acquire a three building office and industrial complex located in Anaheim,
California. Furthermore, KI, on behalf of the Operating Partnership, has
acquired a multi-tenant industrial property located in Garden Grove,
California. The acquisition of the Acquisition Properties by the Company is
expected to occur concurrently with the consummation of the Offering and,
accordingly, the Acquisition Properties are included in the discussion of the
Properties included throughout this Prospectus. There can be no assurance,
however, that the Company will be able to complete any property acquisitions,
including the acquisition of the Acquisition Properties, successfully develop
any land acquired or improve the operating results of any developed properties
that are acquired. See "Business and Properties--Acquisition Properties."
Development Strategies. The Company's interests in the Development
Properties provide it with significant growth opportunities.
The Company is the master ground lessee of, and has sole development rights
in, Kilroy Airport Center Long Beach, a planned four-phase, approximately 53-
acre property entitled for office, research and development, light industrial
and other commercial projects at which the Company will own, upon consummation
of the Offering, all five existing Office Properties and manages all ongoing
leasing and development activities. The Company developed Phases I and II in
1987 and 1989/1990, respectively, encompassing an aggregate of approximately
620,000 rentable square feet of office and light industrial space. The Company
controls development of the Phase III and IV parcels while receiving rental
revenue in connection with such parcels under current leases expiring in July
2009 and September 1998, respectively, in amounts sufficient to cover a
substantial portion of the predevelopment carrying costs. Phases III and IV
presently are planned to be developed on the project's approximately
24 undeveloped acres and are entitled for an aggregate of approximately
900,000 rentable square feet. The Company is currently in discussions with
several prospective tenants for office space presently planned to be included
in Kilroy Long Beach Phase III. Development of each of Phases III and IV is
subject to substantial predevelopment leasing activity and, therefore, the
timing for the commencement of development of Phases III and IV is uncertain.
No assurance can be given that the Company will commence such development when
planned, or that, if commenced, such development will be completed. See "Risk
Factors--Real Estate Investment Considerations--Risks of Real Estate
Acquisition and Development" and "Business and Properties--Development,
Leasing and Management Activities--Kilroy Long Beach."
In addition, certain of the Industrial Properties can support additional
development, and the Company presently is planning to develop in the next two
years, subject to substantial pre-leasing, approximately 105,000 rentable
square feet of such additional space.
The Company may engage in the development of other office and/or industrial
properties primarily in Southern California submarkets when market conditions
support a favorable risk-adjusted return on such development. The Company's
activities with third-party owners in Southern California are expected to give
the Company further access to development opportunities. There can be no
assurance, however, that the Company will be able to successfully develop any
of the Development Properties or any other properties. See "Business and
Properties--Development, Leasing and Management Activities."
Financing Policies. The Company's financing policies and objectives are
determined by the Company's Board of Directors. The Company presently intends
to limit the ratio of debt to total market capitalization (total debt of the
Company as a percentage of the market value of issued and outstanding shares
of Common Stock, including interests exchangeable therefor, plus total debt)
to approximately 50%. However, such objectives may be altered without the
consent of the Company's stockholders, and the Company's organizational
documents do
49
<PAGE>
not limit the amount of indebtedness that the Company may incur. Upon
completion of the transactions outlined under the caption "Formation and
Structure of the Company," total debt will constitute approximately 21.9% of
the total market capitalization of the Company (assuming an initial public
offering price of $22.50 per share of Common Stock). In addition, upon
consummation of the Offering, the Company will have working capital cash
reserves of approximately $70 million. The Company anticipates that upon
consummation of the Offering all but approximately $12.0 million of the
permanent indebtedness will bear interest at fixed rates. The Company intends
to utilize one or more sources of capital for future acquisitions, including
development and capital improvements, which may include undistributed cash
flow, borrowings under the proposed Credit Facility, the Company's
approximately $70 million of working capital cash reserves out of the net
proceeds of the Offering, issuance of debt or equity securities and other bank
and/or institutional borrowings. There can be no assurance, however, that the
Company will be able to obtain capital for any such acquisitions, developments
or improvements on terms favorable to the Company. See "--Growth Strategies,"
"The Company--Growth Strategies" and "Business and Properties--Development,
Leasing and Management Activities."
50
<PAGE>
USE OF PROCEEDS
The net proceeds to the Company from the sale of Common Stock in the
Offering (based on the midpoint of the range of the initial public offering
price set forth on the cover page of this Prospectus), after deduction of
underwriting discounts and commissions and estimated offering expenses, are
expected to be approximately $257.0 million (approximately $296.3 million if
the Underwriters' over-allotment option is exercised in full). In addition to
the net proceeds from the Offering, the Operating Partnership expects to
receive net proceeds from the Mortgage Loans, after payment of expenses
related thereto, of approximately $95.5 million. The Company intends to apply
the net proceeds of the Offering and from the Mortgage Loans as follows:
<TABLE>
<CAPTION>
AMOUNT
--------------
(IN THOUSANDS)
<S> <C>
Repayment of existing mortgage debt (net of
discounts/premiums)...................................... $229,452
Purchase price of the Acquisition Properties.............. 48,962
Working capital cash reserves............................. 70,000
Capital expenditure cash reserves......................... 2,736
Financing expenses........................................ 1,350
--------
Total................................................. $352,500
========
</TABLE>
Upon consummation of the Offering, the estimated amount of indebtedness of
the Kilroy Group secured by the Properties which is to be repaid with net
proceeds of the Offering and the Financing will be approximately $229.5
million (including accrued interest and loan fees), of which approximately
$37.2 million has been guaranteed by certain members of the Kilroy Group,
including officers and directors of the Company. An aggregate of approximately
$32.1 million of indebtedness was incurred within the last year, of which $1.5
million was incurred to finance tenant improvements and to pay leasing
commissions related to Kilroy Airport Center Long Beach, $9.1 million was
incurred by KI (on behalf of the Company) to acquire the Industrial Property
located at 12752-12822 Monarch Street, Garden Grove, California (including
expenses at closing) and $21.5 million was used to repay $16.6 million of
existing indebtedness (including $3.4 million of indebtedness of John B.
Kilroy, Sr., the Chairman of the Company's Board of Directors, and accrued
interest and prepayment penalties in connection with such repayments), and to
pay approximately $940,000 in property taxes and approximately $454,000 in
loan costs, legal fees and other expenses in connection with such financing,
with the remainder being contributed to working capital.
The approximately $49.0 million to be used to purchase the Acquisition
Properties referenced above represents the aggregate purchase price paid or to
be paid (including expenses at closing) pursuant to executed agreements for
the acquisition of Kilroy Airport Center Long Beach Phase I, the Westlake
Office Plaza and the Anaheim Office and Industrial Properties. The acquisition
of the Industrial Property located at 12752-12822 Monarch Street, Garden
Grove, California is reflected in the repayment of existing mortgage debt (net
of discounts/premiums) referenced above, as this amount was incurred by KI on
behalf of the Company to acquire the property prior to consummation of the
Offering based on the closing schedule required by the seller. See "Business
and Properties--Acquisition Properties."
In addition, the Company presently intends to use the approximately $2.7
million of capital expenditure cash reserves to pay to Hughes Space &
Communications, in connection with Formation Transactions, the remaining
balance of approximately $1.4 million in connection with the amendment and/or
extension of leases of office space at the Office Properties located at Kilroy
Airport Center, including $500,000 in connection with a tenant improvement
allowance for the properties located at 2240 and 2250 E. Imperial Highway and
the balance in connection with the cancellation of an option to purchase an
equity interest in the Office Properties located at Kilroy Airport Center at
El Segundo. Also from such $2.7 million capital expenditure cash reserves, in
connection with the Financing, the Company will make earthquake-related
improvements to certain of the Properties in an aggregate net amount of
approximately $600,000. The improvements and repairs reserve required in
connection with the Financing is expected to be funded out of the working
capital cash reserves. See "The Financing--The Mortgage Loans."
51
<PAGE>
The following table presents the balances, as of September 30, 1996, and the
expected balances as of the date the Offering is consummated, of the mortgages
and loans (which are all of the current outstanding mortgages and loans on the
Properties) intended to be repaid out of the net proceeds of the Offering. The
mortgages expected to be repaid upon completion of the Offering had a weighted
average interest rate of approximately 8.74% and a weighted average remaining
term to maturity of approximately 3.14 years as of September 30, 1996.
<TABLE>
<CAPTION>
EXPECTED BALANCE AS OF
BALANCE AS OF THE DATE THE
PROPERTY LOCATION SEPTEMBER 30, 1996 OFFERING IS CONSUMMATED
- ----------------- ------------------ -----------------------
(IN THOUSANDS)
<S> <C> <C>
Kilroy Airport Center at El Segundo }
2240 E. Imperial Highway }
2250 E. Imperial Highway }.......................... $ 94,799 $ 93,999
2260 E. Imperial Highway }
El Segundo, California }
Kilroy Airport Center Long Beach }
3750 Kilroy Airport Way }
3760 Kilroy Airport Way }.......................... 56,168 56,168
3780 Kilroy Airport Way }
Long Beach, California }
SeaTac Properties Ltd. }
17900 Pacific Highway }
17930 Pacific Highway }.......................... 20,162 16,100
18000 Pacific Highway }
Seattle, Washington }
2031 E. Mariposa Avenue
El Segundo, California(1)..................................... 12,000 12,000
3332 E. La Palma Avenue
Anaheim, California........................................... 7,589 7,580
2260 E. El Segundo Boulevard }
El Segundo, California }
2265 E. El Segundo Boulevard }
El Segundo, California }
2270 E. El Segundo Boulevard }
El Segundo, California }
185 S. Douglas Street }
El Segundo, California(2) }.......................... 21,523(3) 21,525(3)
1000 E. Ball Road }
Anaheim, California(1) }
1230 S. Lewis Street }.......................... 5,536 5,506
Anaheim, California(1) }
12681/12691 Pala Drive
Garden Grove, California...................................... 3,267 3,264
5115 N. 27th Avenue
Phoenix, Arizona.............................................. 3,000 3,000
12752-12822 Monarch Street
Garden Grove, California...................................... -- 9,060(4)
-------- --------
$224,046 $228,202
======== ========
</TABLE>
(footnotes on next page)
52
<PAGE>
- --------
(1) This property is also subject to a second mortgage securing the
indebtedness referenced in note (3) below which will be repaid with the
net proceeds of the Offering. This property is also subject to a mortgage
securing the $9.1 million aggregate principal amount of indebtedness
(including related expenses incurred in connection therewith) referenced
in note (4) below which will be repaid with the net proceeds of the
Offering.
(2) This property is also subject to a mortgage securing the $9.1 million
aggregate principal amount of indebtedness (including related expenses
incurred in connection therewith) referenced in note (4) below, which will
be repaid with the net proceeds of the Offering.
(3) This indebtedness is also secured by a second mortgage on the properties
located at 1000 East Ball Road, Anaheim, California, 1230 S. Lewis Street,
Anaheim, California and 2031 E. Mariposa Avenue, El Segundo, California.
(4) Represents the principal amount of indebtedness incurred on December 19,
1996, by KI on behalf of the Company, in connection with the acquisition
of the Industrial Property located at 12752-12822 Monarch Street, Garden
Grove, California, plus accrual of related closing expenses. See "Business
and Properties--Acquisition Properties--12752-12822 Monarch Street, Garden
Grove, California." The indebtedness matures on the earlier of the date on
which the Offering is consummated and June 20, 1997 and, as of December
31, 1996, had an interest rate of approximately 8.41%.
In the event that the Underwriters' over-allotment option is exercised, the
net proceeds thereof will be used by the Company for additional working
capital and will be available for development and for future acquisitions of
additional properties not yet identified. Pending application of such net
proceeds, the Company will invest the net proceeds in interest-bearing
accounts and short-term, interest-bearing securities, which are consistent
with the Company's intention to qualify for taxation as a REIT. Such
investments may include, for example, obligations of the Governmental National
Mortgage Association, other government and government agency securities,
certificates of deposit and interest-bearing bank deposits.
DISTRIBUTION POLICY
The Company presently intends to make regular quarterly distributions to
holders of its Common Stock. The first distribution, for the period commencing
upon the consummation of the Offering and ending March 31, 1997, is
anticipated to be approximately $ per share (which is equivalent to a
quarterly distribution of $.3875 per share or an annual distribution of $1.55
per share) which results in an initial annual distribution rate of 6.89%,
based on the midpoint of the range of the initial public offering price set
forth on the cover page of this Prospectus. The Company does not expect to
change its estimated distribution rate if any of the Underwriters' over-
allotment option is exercised. The Company currently expects to distribute
approximately 91.7% of estimated cash available for distribution for the 12
months following the consummation of the Offering. Units and shares of Common
Stock will receive equal distributions. The Board of Directors may vary the
percentage of cash available for distribution which is distributed if the
actual results of operations, economic conditions or other factors differ from
the assumptions used in the Company's estimates.
The Company believes that its estimate of cash available for distribution
constitutes a reasonable basis for setting the initial distribution rate and
is made solely for the purpose of setting the initial distribution rate and is
not intended to be a projection or forecast of the Company's results of
operations or of its liquidity. The Company presently intends to maintain the
initial distribution rate for the 12 months following the consummation of the
Offering unless actual results from operations, economic conditions or other
factors differ significantly from the assumptions used in its estimate.
However, no assurance can be given that the Company's estimate will prove
accurate. The actual return that the Company will realize will be affected by
a number of factors, including the revenue received from the Properties, the
distributions and other payments received from the Operating Partnership and
Services Company (which in turn is based in part on revenues received from
development activities), the operating expenses of the Company, the interest
expense incurred on its borrowings, the ability of tenants to meet their
obligations, general leasing activity and unanticipated capital expenditures.
See "Risk Factors--Real Estate Investment Considerations."
53
<PAGE>
The following table illustrates the adjustments made by the Company to its
pro forma Funds from Operations for the twelve months ended September 30, 1996
in order to calculate estimated cash available for distribution:
<TABLE>
<CAPTION>
AMOUNT
------
(IN THOUSANDS,
EXCEPT PER
SHARE AMOUNTS)
<S> <C>
Pro forma net income before minority interests for the year
ended December 31, 1995..................................... $ 15,580
Plus pro forma net income before minority interests for the
nine months ended September 30, 1996........................ 7,029
Less pro forma net income before minority interests for the
nine months ended September 30, 1995........................ (12,390)
--------
Pro forma net income before minority interests for the 12
months ended September 30, 1996(1).......................... 10,219
Add non-cash items:
Pro forma depreciation for the 12 months ended September
30, 1996(2)............................................... 9,205
Pro forma amortization for capitalized leasing commissions
for the 12 months ended September 30, 1996(2)............. 1,041
Nonrecurring item and non-cash compensation(3)............. 3,600
--------
Pro forma Funds from Operations for the 12 months ended
September 30, 1996.......................................... 24,065
Adjustments:
Net increases in contractual rental income(4).............. 305
Net increase from new leases(5)............................ 4,113
Net effect of lease expirations, assuming no renewals(6)... (4,052)
Net effect of straight-line rents(7)....................... 293
Interest income on excess cash from proceeds of
Offering(8)............................................... 3,534
--------
Estimated cash flow from operating activities for the 12
months ending January 31, 1998.............................. 28,268
Estimated capitalized tenant improvements and leasing
commissions(9).............................................. (1,117)
Estimated capital expenditures(10)........................... (310)
Scheduled debt principal payments(11)........................ (1,060)
--------
Estimated cash available for distribution for the 12 months
ending January 31, 1998..................................... $ 25,781
========
Company's share of cash available for distribution(12)..... $ 21,295
Minority interest's share of cash available for
distribution.............................................. $ 4,486
========
Total estimated initial annual distribution.................. $ 23,641
========
Estimated initial annual distribution per share.............. $ 1.55
========
Estimated cash available for distribution payout ratio(13)... 91.7%
========
</TABLE>
- --------
(1) The effect of including the Services Company was a reduction in Funds
from Operations of $50,000 during such period.
(2) Pro forma depreciation of $9,595,000 for the year ended December 31, 1995
plus $6,773,000 for the nine months ended September 30, 1996 less
$7,163,000 for the nine months ended September 30, 1995. Pro forma
amortization of $985,000 for the year ended December 31, 1995 plus
$895,000 for the nine months ended September 30, 1996 less $839,000 for
the nine months ended September 30, 1995. Amortization consists primarily
of amortization of deferred leasing commissions. Non-cash interest
expense of $60,000 for the year ended September 30, 1996 related to
amortization of the costs associated with the Mortgage Loans is not added
back in this table in conformity with NAREIT's definition of Funds from
Operations.
(3) Includes elimination of the cost to buy out an option held by a third
party to acquire a portion of a Property ($3,150,000) and compensation
expense relating to a restricted Common Stock grant ($450,000).
(4) Represents an incremental increase in Funds from Operations attributable
to contractual rental increases for the 12 months ending January 31, 1998
(over actual rental revenue included in pro forma Funds from Operations
for the 12 months ended September 30, 1996). The contractual rental
increases are limited to the actual number of months in which the
increased rental rate will be in effect as to each lease.
(footnotes continued on next page)
54
<PAGE>
(5) Represents the incremental increase in Funds from Operations attributable
to rental revenue from new executed leases commencing after September 30,
1995 for the 12 months ending January 31, 1998.
(6) Represents the elimination of rental revenue reflected in rental revenue
for the 12 months ended September 30, 1996 from: (i) leases which expired
between September 30, 1995 and September 30, 1996 ($1,249,000) and (ii)
leases which will expire between October 1, 1996 and January 31, 1998 for
that portion of the 12 months ending January 31, 1998 that such leases
are no longer in effect ($2,803,000).
This table assumes that leases which expire prior to January 31, 1998 will
not be renewed or re-leased during the period. As a result of this
assumption, the effective average occupancy rate of the Properties for the
12-month period ending January 31, 1998 will equal approximately 87.2%,
versus the actual occupancy rate for the Properties of approximately 88.2%
as of December 31, 1996. The Company's average tenant retention rate for
expiring leases for January 1, 1994 through September 30, 1996 was
approximately 71.7% for the Properties located in the Southern California
Area and 50.9% for the Properties overall.
(7) Represents the effect of adjusting straight-line rental income and
expense included in pro forma net income from an accrual basis under GAAP
to a cash basis.
(8) Represents estimated interest earned at 5% on working capital cash
reserves of $70,886,000.
(9) Reflects projected non-incremental revenue-generating tenant improvement
("TI") and leasing commission ("LC") for the 12-month period ending
January 31, 1998 based on the weighted average TI and LC expenditures for
all renewed and retenanted space incurred during 1993, 1994, 1995 and the
nine months ended September 30, 1996, multiplied by the average annual
net rentable square feet of leased space expiring during the three 12-
month periods following the consummation of the Offering.
<TABLE>
<CAPTION>
WEIGHTED
1993 1994 1995 1996 AVERAGE
----- ------ ----- ----- ----------
<S> <C> <C> <C> <C> <C>
OFFICE PROPERTIES:
Retenanted
TI per net rentable square foot.. $5.21 $20.82 $4.76 $8.62 $ 12.50
LC per net rentable square foot.. $1.85 $ 3.56 $4.23 $3.85 3.41
----------
Total weighted average TI and
LC............................ 15.91
Average annual net rentable
square feet of leased space
expiring during the three 12-
month periods following the
Offering...................... 137,976
----------
Total estimated annual TI and
LC............................ 2,195,198
Rate of retenant(i)............ 30%
----------
Total cost of retenants........ $ 659,000
Renewals
TI per net rentable square foot.. $ -- $ .28 $4.49 $4.01 $ 2.89
LC per net rentable square foot.. $ -- $ .07 $1.61 $1.02 0.80
----------
Total weighted average TI and
LC............................ 3.69
Average annual net rentable
square feet of leases expiring
during the three 12-month
periods following the
Offering...................... 137,976
----------
Total estimated annual TI and
LC............................ 509,131
Rate of renewal(i)............. 70%
----------
Total cost of renewals....... 357,000
----------
Total TI and LC cost of Office
Properties...................... 1,016,000
----------
INDUSTRIAL PROPERTIES:
TI per net rentable square foot.... $ .14 $ 4.49 $2.00 $ -- $ 2.19
LC per net rentable square foot.... $1.49 $ 3.49 $1.84 $ -- 2.16
----------
Total weighted average TI and
LC.............................. 4.35
Average annual net rentable
square feet of leases expiring
during the three 12-month
periods following the Offering.. 23,333
----------
Total estimated annual TI and
LC.............................. 101,000
----------
Total.............................. $1,117,000
==========
</TABLE>
(footnotes continued on next page)
55
<PAGE>
--------
(i) The Company's historical weighted average renewal rate, based on net
rentable square footage, from January 1, 1994 through September 30,
1996 was 71.7% for the Properties located in the Southern California
Area and 50.9% for the Properties overall. The lower overall renewal
rate results primarily from a 1993 termination of a lease, scheduled
to expire in 1995, for 211,000 square feet at the SeaTac Office
Center. Management believes, based on historical figures and its
review of market conditions in the Company's submarkets in which the
Properties are located, that the assumption of a 70% renewal rate is
reasonable.
(10) Estimated annual capital expenditures not reimbursed by tenants. The
average of historical nonreimbursed capital expenditures at the Office
and Industrial Properties during the years ended December 31, 1994 and
1995 was $150,000. All capital expenditures during 1993 were reimbursed
by tenants.
(11) Estimated principal payments on the Mortgage Loans. Excludes the net
effect of the refinancing of the SeaTac Loan.
(12) The Company's share of estimated distributions based on its approximately
82.6% partnership interest in the Operating Partnership.
(13) Calculated as the estimated initial annual distribution divided by the
estimated cash flow available for distribution for the 12 months ending
January 31, 1998. The payout ratio of estimated adjusted pro forma Funds
from Operations (which is substantially equivalent to the Company's
estimated pro forma cash flow from operating activities) for the 12
months ending January 31, 1998 equals 83.6%.
The Company anticipates that its estimated cash available for distribution
will exceed earnings and profits due to non-cash expenses, primarily
depreciation and amortization, to be incurred by the Company. Distributions by
the Company to the extent of its current or accumulated earnings and profits
for federal income tax purposes, other than capital gain dividends, will be
taxable to stockholders as ordinary dividend income. Capital gain
distributions generally will be treated as long-term capital gains.
Distributions in excess of earnings and profits generally will be treated as a
non-taxable return of capital to the extent of each stockholder's basis in his
or her Common Stock to the extent thereof, and thereafter as taxable gain. The
non-taxable distributions will reduce each stockholder's tax basis in the
Common Stock and, therefore, the gain (or loss) recognized on the sale of such
Common Stock or upon liquidation of the Company will be increased (or
decreased) accordingly. Based on the estimated cash flow available for
distribution set forth in the table above, the Company believes that
approximately 10% of distributions for the 12 months following consummation of
the Offering would represent a return of capital. If actual cash available for
distribution or taxable income vary from these amounts, the percentage of
distributions which represent a return of capital may be materially different.
For a discussion of the tax treatment of distributions to holders of Common
Stock, see "Federal Income Tax Consequences--Taxation of U.S. Stockholders"
and "--Taxation of Non-U.S. Stockholders." In order to qualify to be taxed as
a REIT, the Company must make annual distributions to stockholders of at least
95% of its REIT taxable income (determined without regard to the dividends
received deduction and by excluding any net capital gains) which the Company
anticipates will be less than its share of adjusted Funds from Operations.
Under certain circumstances, the Company may be required to make distributions
in excess of cash available for distribution in order to meet such
distribution requirements.
Financing activities such as repayment or refinancing of loans also may
affect the Company's assets and liabilities and the amount of cash available
for distribution for future periods. Management will seek to control the
timing and nature of investing and financing activities in order to maximize
the Company's return on invested capital.
Future distributions by the Company will be subject to the requirements of
the MGCL and the discretion of the Board of Directors of the Company, and will
depend on the actual cash flow of the Company, its financial condition, its
capital requirements, any decision by the Board of Directors to reinvest the
Operating Partnership's Funds from Operations rather than distribute such
funds to the Company, the annual distribution requirements under the REIT
provisions of the Code (see "Federal Income Tax Considerations--Taxation of
the Company--Annual Distribution Requirements") and such other factors as the
Board of Directors deems relevant. There can be no assurance that any
distributions will be made or that the expected level of distributions will be
maintained by the Company. See "Risk Factors--Real Estate Investment
Considerations" and "--Distribution Payout Percentage." If revenues generated
by the Company's properties in future periods decrease materially from current
levels, the Company's ability to make expected distributions would be
materially adversely affected, which could result in a decrease in the market
price of the shares of Common Stock.
56
<PAGE>
The Company may in the future implement a distribution reinvestment program
under which holders of shares of Common Stock may elect automatically to
reinvest distributions in additional shares of Common Stock. The Company may,
from time to time, repurchase shares of Common Stock in the open market for
purposes of fulfilling its obligations under this distribution reinvestment
program, if adopted, or may elect to issue additional shares of Common Stock.
If the Company adopts a distribution reinvestment program, it will solicit
participation in the program after the Offering by means of a separate
prospectus, and a purchase of shares of Common Stock in the Offering does not
entitle any investor to participate in any such program. There can be no
assurance that the Company will adopt such a program, and consequently, the
probable date of adoption or number of shares of Common Stock that would be
available under such program cannot be determined at this time.
Cash available for distribution is based on Funds from Operations (which is
defined by NAREIT as net income (loss) (computed in accordance with GAAP),
excluding gains (or losses) from debt restructuring and sales of property,
plus real estate related depreciation and amortization (excluding amortization
of deferred financing costs)) and after adjustments for unconsolidated
partnerships and joint ventures. The calculation of adjustments to pro forma
Funds from Operations is being made solely for the purpose of setting the
initial distribution amount and is not intended to be a projection or
prediction of the Company's actual results of operations nor is the
methodology upon which such adjustments are made intended to be a basis for
determining future distributions. Management considers Funds from Operations
an appropriate measure of performance of an equity REIT because industry
analysts have accepted it as such. The Company computes Funds from Operations
in accordance with standards established by the Board of Governors of NAREIT
in its March 1995 White Paper, which may differ from the methodology for
calculating Funds from Operations utilized by other equity REITs and,
accordingly, may not be comparable to such other REITs. Further, Funds from
Operations does not represent amounts available for management's discretionary
use because of needed capital replacement or expansion, debt service
obligations, or other commitments and uncertainties. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations--
Funds from Operations."
The Company intends to provide its stockholders with annual reports
containing audited financial statements with a report thereon by the Company's
independent auditors, together with management's discussion and analysis, as
required under applicable Commission rules and regulations.
57
<PAGE>
CAPITALIZATION
The following table sets forth the capitalization of the Company (based on
the Combined Financial Statements of the Kilroy Group) as of September 30,
1996 on an historical basis, and on a pro forma basis as adjusted to give
effect to the Formation Transactions, the Offering, the Financing and the
application of the net proceeds therefrom as described under the caption "Use
of Proceeds." The information set forth in the following table should be read
in conjunction with the Combined Financial Statements of the Kilroy Group and
notes thereto, the pro forma financial information of the Company and the
notes thereto and "Management's Discussion and Analysis of Financial Condition
and Results of Operations--Liquidity and Capital Resources" included elsewhere
in this Prospectus.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1996
------------------------
HISTORICAL PRO FORMA
----------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Debt:
Mortgage Loans(1).................................... $ 224,046 $ 96,000
Borrowings under Credit Facility(2).................. -- --
----------- ----------
Total debt............................................. 224,046 96,000
----------- ----------
Minority interest in the Operating Partnership(3)...... -- 26,285
----------- ----------
Stockholders' equity (deficit):
Preferred Stock, $.01 par value, 30,000,000 shares
authorized, none issued or outstanding..............
Common Stock, $.01 par value, 150,000,000 shares
authorized, 12,600,000 shares issued and
outstanding(3)(4)................................... -- 126
Capital in excess of par value....................... -- 124,653
Accumulated deficit.................................. (113,223) --
----------- ----------
Total stockholders' equity (deficit)................... (113,223) 124,779
----------- ----------
Total capitalization................................... $ 110,823 $ 247,064
=========== ==========
</TABLE>
- --------
(1) The Company, on behalf of the Operating Partnership, has obtained written
commitments for the Mortgage Loans, the closing of which is a condition to
the consummation of the Offering. See "The Financing--The Mortgage Loans."
(2) The Company, on behalf of the Operating Partnership, currently is
negotiating a $100.0 million Credit Facility, which the Company expects to
enter into shortly after the consummation of the Offering. See "The
Financing--The Credit Facility."
(3) Assumes no exchange of the Units to be issued to the Continuing Investors
in connection with the Formation Transactions. If all of the Units were
exchanged, 15,252,374 shares of Common Stock would be outstanding.
(4) Excludes 1,400,000 shares of the 1,500,000 shares of Common Stock reserved
for issuance pursuant to the Stock Incentive Plan. See "Management--Stock
Incentive Plan." Includes 100,000 restricted shares of Common Stock to be
issued to an officer of the Company who is not a Continuing Investor.
58
<PAGE>
DILUTION
Purchasers of the Common Stock offered hereby will experience an immediate
and substantial dilution of the net tangible book value of their Common Stock
from the assumed initial public offering price. At September 30, 1996, the
Company had a negative combined net tangible book value of approximately
$113.2 million, or negative $42.69 per share of Common Stock (assuming the
exchange of Units issued to Continuing Investors in connection with the
Formation Transactions into shares of Common Stock on a one-for-one basis).
After giving effect to the sale of the shares of Common Stock offered hereby
at an assumed initial public offering price of $22.50 per share of Common
Stock, the deduction of underwriting discounts and commissions and estimated
Offering expenses and the receipt by the Company of approximately
$257.0 million in net proceeds from the Offering, the pro forma net tangible
book value at September 30, 1996 would have been $124.8 million, or $9.90 per
share of Common Stock. This amount represents an immediate increase in net
tangible book value of $52.59 per Unit to Continuing Investors and an
immediate dilution in pro forma net tangible book value of $12.60 per share of
Common Stock to new public investors. The following table illustrates this per
share dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share............ $22.50
Pro forma net tangible book value before the
Offering(1)............................................. $(42.69)
Increase in pro forma net tangible book value
attributable to the Offering and Formation
Transactions............................................ 52.59
-------
Pro forma net tangible book value after the Offering(2).... 9.90
------
Dilution in pro forma net tangible book value to new
investors(3).............................................. $12.60
======
</TABLE>
- -------
(1) Net tangible book value per share of Common Stock before the Offering is
determined by dividing net tangible book value (total tangible assets less
total liabilities) of the Company by the number of shares of Common Stock
of the Company representing the exchange in full of the Units to be issued
to the Continuing Investors.
(2) Based on pro forma net tangible book value of approximately $124.8 million
divided by 12,600,000 shares of Common Stock outstanding. There is no
impact on dilution attributable to the exchange of Units to be issued to
the Continuing Investors due to the effect of minority interest.
(3) Dilution is determined by subtracting pro forma net tangible book value
per share of Common Stock after giving effect to the Formation
Transactions and the Offering from the assumed initial public offering
price paid by a new investor for a share of Common Stock.
The following table sets forth, on a pro forma basis giving effect to the
Offering and the Formation Transactions: (i) the number of shares of Common
Stock to be sold by the Company in the Offering and the number of Units issued
to the Continuing Investors in connection with the Formation Transactions;
(ii) the net tangible book value as of September 30, 1996 of the assets
contributed to the Operating Partnership in the Formation Transactions; and
(iii) the net tangible book value of the average contribution per share/Unit
based on total contributions. See "Risk Factors--Immediate and Substantial
Dilution."
<TABLE>
<CAPTION>
SHARES/UNITS BOOK VALUE OR CASH
ISSUED(1)(2) CONTRIBUTIONS AVERAGE PRICE
------------------ ------------------------ PER
NUMBER PERCENT AMOUNT PERCENT SHARE/UNIT
---------- ------- ---------- --------- -------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
New investors(2)........ 12,600,000 82.6% $ 281,250 (3) 195.6 % $ 22.50
Units issued to
Continuing Investors in
connection with the
Formation
Transactions........... 2,652,374 17.4% (137,451)(4) (95.6)% $(51.82)
---------- ----- ---------- -------
Total............... 15,252,374 100.0% $143,799 100.0 %
========== ===== ========== =======
</TABLE>
- -------
(1) Reflects the shares of Common Stock offered hereby and the Units to be
issued to the Continuing Investors in exchange for assets contributed in
connection with the Formation Transactions at the initial exchange ratio
of one share of Common Stock for each Unit. There are, however, certain
restrictions on the exchange of Units. See "Partnership Agreement of the
Operating Partnership--Redemption/Exchange Rights."
(2) Includes 100,000 restricted shares of Common Stock that will be purchased
by an officer of the Company, who is not a Continuing Investor, for $.01
per share ($1,000 in the aggregate) in connection with a grant pursuant to
the Company's Stock Incentive Plan.
(3) This amount is based on the assumed initial public offering price of
$22.50.
(4) Based on the September 30, 1996 pro forma book value of the assets to be
contributed to the Operating Partnership in connection with the Formation
Transactions less $24.23 million attributable to underwriting discounts
and commissions and estimated expenses of the Offering.
59
<PAGE>
SELECTED FINANCIAL DATA
The following table sets forth certain financial data on a pro forma basis
for the Company, and on an historical basis for the Kilroy Group, which
consist of the Combined Financial Statements of the Kilroy Group whose
financial results will be consolidated in the historical and pro forma
financial statements of the Company. The financial data should be read in
conjunction with the historical and pro forma financial statements and notes
thereto included in this Prospectus. The combined historical summary financial
data as of December 31, 1994, 1995 and September 30, 1996 and for each of the
three years in the period ended December 31, 1995 and the nine months ended
September 30, 1995 and 1996 have been derived from the Combined Financial
Statements of the Kilroy Group audited by Deloitte & Touche LLP, independent
public accountants, whose report with respect thereto is included elsewhere in
this Prospectus. The selected combined historical financial and operating
information as of December 31, 1993, 1992 and 1991 and for the years ended
December 31, 1992 and 1991 have been derived from the unaudited Combined
Financial Statements of the Kilroy Group and, in the opinion of management,
include all adjustments, consisting only of normal recurring adjustments,
necessary for a fair statement of the operating information for the unaudited
periods. The pro forma data assume the completion of the Formation
Transactions, including acquisition of the Acquisition Properties and the
consummation of the Offering (based upon the midpoint of the range of the
initial public offering price set forth on the cover page of this Prospectus)
and the Financing and use of the aggregate net proceeds therefrom as described
under "Use of Proceeds" as of the beginning of the periods presented for the
operating data and as of the balance sheet date for the balance sheet data.
The pro forma financial data do not give effect to the recent extension of the
tenant lease with Hughes Space & Communications with respect to space leased
in the Office Property located at 2250 E. Imperial Highway, El Segundo,
California and a portion of the space leased in the Office Property located at
2240 E. Imperial Highway, El Segundo, California. The pro forma financial data
are not necessarily indicative of what the actual financial position or
results of operations of the Company would have been as of and for the periods
indicated, nor does it purport to represent the future financial position and
results of operations.
60
<PAGE>
THE COMPANY (PRO FORMA) AND KILROY GROUP (HISTORICAL)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
-------------------------------- --------------------------------------------------------------
COMBINED HISTORICAL COMBINED HISTORICAL
PRO FORMA --------------------- PRO FORMA ----------------------------------------------------
1996 1996 1995 1995 1995 1994 1993 1992 1991
--------- ------------ -------- --------- --------- --------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA:
Rental income.......... $ 30,635 $ 25,156 $ 24,056 $39,141 $ 32,314 $ 31,220 $ 34,239 $ 32,988 $ 29,300
Tenant reimbursements.. 3,326 2,583 2,377 3,886 3,002 1,643 4,916 5,076 5,416
Parking income......... 1,317 1,317 1,193 1,582 1,582 1,357 1,360 1,286 1,358
Development and
management fees....... -- 580 926 -- 1,156 919 751 882 779
Sale of air rights..... -- -- 4,456 4,456 4,456 -- -- -- --
Lease termination
fees.................. -- -- -- 100 100 300 5,190 48 --
Other income........... 364 65 211 705 298 784 188 221 206
-------- ---------- -------- ------- --------- --------- --------- --------- --------
Total revenues......... 35,642 29,701 33,219 49,870 42,908 36,223 46,644 40,501 37,059
-------- ---------- -------- ------- --------- --------- --------- --------- --------
Property expenses...... 6,411 5,042 5,045 8,668 6,834 6,000 6,391 6,384 6,971
Real estate taxes
(refunds)............. 1,457 970 1,088 2,002 1,416 (448) 2,984 3,781 2,377
General and
administrative
expense............... 3,100 1,607 1,554 4,133 2,152 2,467 1,113 1,115 841
Ground lease........... 832 579 542 1,127 789 913 941 854 726
Development expenses... -- 584 564 -- 737 468 581 429 255
Option buy-out cost.... 3,150 3,150 -- -- -- -- -- -- --
Interest expense....... 5,937 16,234 18,660 7,916 24,159 25,376 25,805 26,293 26,174
Depreciation and
amortization.......... 7,668 6,838 7,171 10,580 9,474 9,962 10,905 10,325 9,116
-------- ---------- -------- ------- --------- --------- --------- --------- --------
Total expenses......... 28,555 35,004 34,624 34,426 45,561 44,738 48,720 49,181 46,460
-------- ---------- -------- ------- --------- --------- --------- --------- --------
Income (loss) before
equity in income of
subsidiary, minority
interest and
extraordinary item.... 7,087 (5,303) (1,405) 15,444 (2,653) (8,515) (2,076) (8,680) (9,401)
Equity in income (loss)
of subsidiary......... (58) -- 136 -- -- -- -- --
Minority interest...... (1,223) -- (2,711) -- -- -- -- --
Extinguishment of
debt.................. -- 20,095 15,267 -- 15,267 1,847 -- -- --
-------- ---------- -------- ------- --------- --------- --------- --------- --------
Net income (loss)...... $ 5,806 $ 14,792 $ 13,862 $12,869 $ 12,614 $ (6,668) $ (2,076) $ (8,680) $ (9,401)
======== ========== ======== ======= ========= ========= ========= ========= ========
Pro forma net income
per share(1).......... $ 0.46 $ 1.02
======== =======
<CAPTION>
DECEMBER 31,
----------------------------------------------------
SEPTEMBER 30, 1996 COMBINED HISTORICAL
----------------------- ----------------------------------------------------
COMBINED
PRO FORMA HISTORICAL 1995 1994 1993 1992 1991
--------- ------------ --------- --------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Real estate assets,
before accumu-
lated depreciation and
amortization.......... $285,150 $ 227,127 $ 224,983 $ 223,821 $ 222,056 $ 221,423 $220,363
Total assets........... 261,045 131,062 132,857 143,251 148,386 161,008 169,147
Mortgages and loans.... 96,000 224,046 233,857 250,059 248,043 250,792 245,645
Total liabilities...... 109,981 244,285 254,683 273,585 263,346 263,156 254,786
Minority interest...... 26,285
Stockholders' equity
(deficit)............. 124,779 (113,223) (121,826) (130,334) (114,960) (102,148) (85,639)
</TABLE>
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31,
----------------------------------- ------------------------------------------
COMBINED HISTORICAL COMBINED HISTORICAL
PRO FORMA ---------------------- PRO FORMA -------------------------------
1996 1996 1995 1995 1995 1994 1993
----------------------- ---------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
OTHER DATA:
Funds from
Operations(2)......... $18,243 $4,685 $1,310 $22,018 $2,365 $1,447 $3,639
Cash flows from:
Operating activities... -- 5,528 9,270 -- 10,071 6,607 11,457
Investing activities... -- (2,140) (446) -- (1,162) (1,765) 2,028
Financing activities... -- (3,388) (8,824) -- (8,909) (4,842) (13,485)
Office Properties:
Square footage......... 2,037,414 1,688,383 1,688,383 2,037,414 1,688,383 1,688,383 1,688,383
Occupancy.............. 79.8% 76.3% 72.8% 77.0% 72.8% 73.3% 81.0%
Industrial Properties:
Square footage......... 1,337,697 916,570 916,570 1,337,697 916,570 916,570 916,570
Occupancy.............. 93.7% 90.8% 98.4% 92.2% 98.4% 79.7% 77.6%
</TABLE>
- -------
(1) Pro forma net income per share equals pro forma net income divided by the
12,600,000 shares of Common Stock outstanding after the Offering.
(2) As defined by the National Association of Real Estate Investment Trusts
("NAREIT"), Funds from Operations represents net income (loss) before
minority interest of unit holders (computed in accordance with GAAP),
excluding gains (or losses) from debt restructuring and sales of property,
plus real estate related depreciation and amortization (excluding
amortization of deferred financing costs) and after adjustments for
unconsolidated partnerships and joint ventures. Non- cash adjustments to
Funds from Operations were as follows: in all periods, depreciation and
amortization; in 1996, 1995 and 1994, gains on extinguishment of debt; and
in pro forma 1996 and 1995, non-cash compensation. Further, in 1996 and
1995 non-recurring items (sale of air rights and option buy-out cost) were
excluded. Management considers Funds from Operations an appropriate
measure of performance of an equity REIT because industry analysts have
accepted it as such. The Company computes Funds from Operations in
accordance with standards established by the Board of Governors of NAREIT
in its March 1995 White Paper, which may differ from the methodology for
calculating Funds from Operations utilized by other equity REITs and,
accordingly, may not be comparable to such other REITs. Further, Funds
from Operations does not represent amounts available for management's
discretionary use because of needed capital replacement or expansion, debt
service obligations, or other commitments and uncertainties. See notes
(9), (10) and (11) under the caption "Distribution Policy" and the notes
to the historical financial statements of the Kilroy Group. Funds from
Operations should not be considered as an alternative for net income as a
measure of profitability nor is it comparable to cash flows provided by
operating activities determined in accordance with GAAP.
61
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the "Selected
Financial Data" and the Combined Financial Statements for the Kilroy Group and
notes thereto appearing elsewhere in this Prospectus. The Combined Financial
Statements of the Kilroy Group are comprised of the operations, assets and
liabilities of the Properties other than the Acquisition Properties. As part
of the Formation Transactions, the Properties will be contributed to the
Operating Partnership, of which the Company will be the sole general partner
and the beneficial owner of an approximately 82.6% interest. As a result, for
accounting purposes, the financial information of the Operating Partnership
and the Company will be consolidated.
RESULTS OF OPERATIONS
Nine Months Ended September 30, 1996 Compared to Nine Months Ended September
30, 1995
Total revenues decreased $3.5 million, or 10.6%, for the nine months ended
September 30, 1996 compared to the same period for 1995. Revenues from base
rents increased $1.1 million, or 4.6%, to $25.2 million in the 1996 period
compared to $24.1 million in the 1995 period. Rents from Office Properties
increased $0.8 million during the nine months ended September 30, 1996 from
the comparable period in 1995. Such increase was due to office space under
lease increasing from 1,229,000 square feet at September 30, 1995 to 1,288,000
square feet at September 30, 1996. The majority of this increase relates to
leasing at Kilroy Airport Center Long Beach. There was no significant change
in rent per square foot during the 1996 period compared to the 1995 period.
Rents from Industrial Properties increased a net $0.3 million during the nine
months ended September 30, 1996 compared to the same period in 1995. The net
increase was due to a lease with a Consumer Price Index ("CPI") increase and
the effect of the 2260 E. El Segundo Boulevard Building being leased for the
entire nine months ended September 30, 1996. Tenant reimbursements and parking
revenues increased to $2.6 million and $1.3 million, respectively, in the 1996
period compared to $2.4 million and $1.2 million for the same period in 1995.
The overall $0.3 million increase is primarily due to increased billable
operating expenses resulting from new leases and parking income. Revenues for
1995 include a gain on the sale of air rights of $4.5 million at Kilroy
Airport Center at El Segundo. See Note 2 to the Combined Financial Statements.
Expenses in the nine months ended September 30, 1996 increased by $0.4
million, or 1.1%, to $35.0 million compared to $34.6 million in the 1995
period. During the nine months ended September 30, 1996, the Company accrued
the costs of an option buy-out of $3.15 million for the cancellation of an
option to purchase a 50% equity interest in Kilroy Airport Center at El
Segundo. Interest expense decreased $2.5 million, or 13.4%, to $16.2 million
in 1996 from $18.7 million in 1995, primarily as a result of the forgiveness
and restructuring of certain debt in 1995 and 1996 (see Note 4 to the Combined
Financial Statements).
Net income was $14.8 million for the nine months ended September 30, 1996
compared to $13.9 million for the same period in 1995. The increase of $0.9
million is due primarily to a decrease in interest expense of $2.5 million, an
increase in extraordinary gains of $4.8 million less the nonrecurring option
buy-out cost of $3.15 million for the 1996 period and the sale of air rights
of $4.5 million in 1995.
Year Ended December 31, 1995 Compared to Year Ended December 31, 1994
Total revenues increased $6.7 million, or 18.5%, for the year ended December
31, 1995 compared to the year ended December 31, 1994. Revenues from base
rents increased $1.1 million, or 3.5%, to $32.3 million in 1995 from $31.2
million in 1994. In 1995, rents from Industrial Properties increased $0.8
million from the year ended December 31, 1994, primarily due to the effect of
12-months' rental for the Property located at 2265 E. El Segundo Boulevard
compared to four-months' rental in 1994. Office square footage and average
rent per net rentable square foot remained relatively unchanged for the year
ended December 31, 1995 compared to the year ended December 31, 1994.
Industrial square footage under lease increased to 902,000 at December 31,
1995 as compared to 730,000 a year earlier. The 2260 E. El Segundo Boulevard
building was leased in April 1995 after being vacant during 1994. The Company
also leased the 1230 S. Lewis St. property in February 1995
62
<PAGE>
at a rate of $6.11 per net rentable square foot, down from the rate of $6.43
in effect for the prior year. Tenant reimbursements increased to $3.0 million
in 1995 from $1.6 million in 1994 due principally to the 1994 $1.5 million
refund to tenants for property tax refunds. Parking revenues increased to
$1.6 million in 1995 from $1.4 million in 1994 due to recognition of 12-
months' parking income for Kilroy Airport Center Long Beach in 1995 compared
to two months in 1994, together with increased tenant parking revenues at
Kilroy Airport Center at El Segundo. Revenues for 1995 include a gain on the
sale of air rights of $4.5 million referred to above. Other income decreased
$0.5 million to $0.3 million during 1995 compared to 1994, primarily as a
result of nonrecurring interest income of $0.4 million on the property tax
refunds referred to below.
Expenses in 1995 increased $0.8 million, or 1.8%, to $45.6 million. Property
operating expenses increased $0.8 million, or 13.9%, primarily due to
increased utility costs, increases in employee wages and benefits and a $0.3
million management fee paid to KI to cover costs of the loan renegotiation at
Kilroy Airport Center at El Segundo. Real estate taxes increased $1.9 million,
to $1.4 million in 1995 from a credit balance of $0.4 million in 1994,
primarily due to the $2.4 million property tax refund recorded by the Company
in 1994 and the effect of a reduction in aggregate assessed property values in
1995. General and administrative expenses decreased $0.3 million, or 12.0%, to
$2.2 million in 1995 from $2.5 million in the 1994 period, primarily due to a
$0.3 million penalty for late payment of property taxes in 1994. Interest
expense decreased $1.2 million to $24.2 million in 1995 from $25.4 million in
1994 due to the September 1995 extension of the mortgage on Kilroy Airport
Center at El Segundo at a lower interest rate and the forgiveness of certain
debt, offset in part by the effect of higher interest rates on the variable
rate mortgage secured by Kilroy Airport Center Long Beach. See Note 4 to the
Combined Financial Statements. Ground lease expense decreased $0.1 million to
$0.8 million in 1995, reflecting the effect of 12 months' reduction of ground
rent for Phase III of Kilroy Airport Center Long Beach compared to six months
in 1994. The $0.5 million decrease in depreciation and amortization to
$9.5 million in 1995 results from certain assets becoming fully amortized.
Net income increased $19.3 million to $12.6 million in 1995 compared to a
net loss of $6.7 million in 1994, primarily due to the sale of air rights
discussed above and a $13.4 million increase in gains on extinguishment of
debt to $15.3 million in 1995 compared to $1.8 million in 1994.
Year Ended December 31, 1994 Compared to Year Ended December 31, 1993
Total revenues decreased $10.4 million, or 22.3%, for the year ended
December 31, 1994 compared to the year ended December 31, 1993. The primary
reason for the decrease in revenue was the receipt of lease termination fees
in 1993 of $5.2 million, of which $5.0 million related to a lease termination
at the SeaTac Office Center and $0.2 million to the Kilroy Airport Center Long
Beach. Revenues from base rents decreased $3.0 million, or 8.8%, to $31.2
million for the year ended December 31, 1994 compared to $34.2 million for the
year ended December 31, 1993, due to the lease termination at the SeaTac
Office Center referred to above (with $2.0 million in rental revenue in 1993),
a lease renegotiation resulting in a lower rent rate effective June 1, 1994
for a lease on office space in the parking structure at Kilroy Airport Center
at El Segundo, partially offset by continuing leasing activity at Kilroy
Airport Center Long Beach. Office square footage under lease decreased to
1,239,000 at December 31, 1994 from 1,360,000 at December 31, 1993. The
decrease is due primarily to the termination of the lease at the SeaTac Office
Center (211,000 square feet) offset by 30,000 square feet of new leases
elsewhere in the project and a 55,000 increase in square footage leased at
Kilroy Airport Center Long Beach. Average office rent per square foot declined
$2.33 per square foot in 1994 from 1993 due to the lease renegotiation
referred to above and a softness in the Southern California rental market in
1994. Industrial rents decreased $0.2 million in 1994 primarily due to an
extension of a lease at a reduced rate.
Tenant reimbursements decreased to $1.6 million in 1994 from $4.9 million in
1993, due to a $1.5 million refund to tenants in 1994 for property tax refunds
(for the tax years 1990 through 1994) and an approximate $1.5 million decrease
due to the termination of the SeaTac Office Center lease referred to above.
Tenant reimbursements consist of additional rental revenue from tenants
covering operating expenses, such as utilities and property taxes, and are
recorded as revenue in accordance with the lease terms. Other income increased
$0.6 million, to $0.8 million in 1994 from $0.2 million in 1993, primarily as
a result of interest income of $0.4 million on the property tax refunds
referred to above.
63
<PAGE>
Expenses in 1994 decreased $4.0 million, or 8.2%, to $44.7 million compared
to $48.7 million in 1993. Property expenses decreased $0.4 million, or 6.1%,
due to the vacancy at SeaTac Office Center referred to above and the related
reduction in expenses. Real estate taxes decreased $3.4 million to a credit
balance of $0.4 million in 1994 from taxes of $3.0 million in 1993, primarily
due to property tax refunds of $2.4 million (for the tax years 1990 through
1994) recorded by the Company in 1994 together with an approximate $1.0
million decrease resulting from a reduction in aggregate assessed value of the
Properties during the year ended December 31, 1994. General and administrative
expenses increased $1.4 million, to $2.5 million in 1994 from $1.1 million in
1993, principally due to a $0.6 million increase in the allowance for
uncollectible rent attributable to a single tenant, a $0.3 million penalty in
1994 for late payment of property taxes and $0.2 million of expenses relating
to a financing arrangement which was not consummated. Interest expense
decreased $0.4 million, to $25.4 million in 1994 due to a decrease in the
interest rate on the variable rate mortgage secured by Kilroy Airport Center
Long Beach. Depreciation and amortization decreased $0.9 million to $10.0
million in 1994 as a result of certain assets becoming fully amortized.
The net loss increased $4.6 million to $6.7 million in 1994 compared to a
net loss of $2.1 million in 1993, due to lease termination fees of $5.2
million received in 1993 and the net effect of the items discussed above.
DEVELOPMENT AND MANAGEMENT FEES
The Kilroy Group's third-party development activities are summarized below:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED
SEPTEMBER 30, DECEMBER 31,
-------------- ----------------
1996 1995 1995 1994 1993
------ ------ ------ ---- ----
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Revenues..................................... $580 $926 $1,156 $919 $751
Expenses..................................... 584 564 737 468 581
------ ------ ------ ---- ----
Excess of revenues over expenses............. $ (4) $362 $ 419 $451 $170
====== ====== ====== ==== ====
</TABLE>
Subsequent to the Formation Transactions, the Company's and the Kilroy
Group's development activities will be conducted through Kilroy Services,
Inc., See "Formation and Structure of the Company--Formation Transactions" and
"Formation of Kilroy Services, Inc."
The increases in revenues in 1994, as compared with 1993, and in 1995, as
compared with 1994, was a result of the commencement of development services
for the Riverside Judicial Center (commencing in 1994) and the Northrop
Grumman Corporation's property located in Pico Rivera, California (the
agreement for which commenced in 1995 and expires in February 1997). The $0.3
million decrease in revenues during the nine months ended September 30, 1996
compared with the same period in 1995 was primarily the result of a decrease
in development services at the Calabasas Park Centre which was acquired by the
stockholders of KI in 1996. Revenues from Calabasas Park Centre were $0.1
million, $0.4 million, $0.5 million, $0.7 million and $0.7 million for the
nine months ended September 30, 1996 and 1995 and the years ended December 31,
1995, 1994 and 1993, respectively. The remainder of the decrease was due to
the substantial completion of development services for the Riverside Judicial
Center. A portion of the related expenses of development and management
services are fixed in nature and have not fluctuated significantly, while the
majority of the related expenses are variable in nature and fluctuate with the
level of development and management activities. With the acquisition of
Calabasas Park Centre by the Kilroy Group in 1996, and completion of the fee
activities pursuant to the agreement with Northrop Grumman in February 1997,
the Company does not expect significant fee activity from these sources.
ADOPTION OF SFAS NO. 121
During 1995, the Company adopted Statement of Financial Accounting Standards
("SFAS") No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed of." No impairments have been determined and,
therefore, no real estate carrying amounts have been adjusted.
64
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
Upon the consummation of the Offering and the Formation Transactions and the
use of proceeds therefrom, the Company will have (i) acquired the Acquisition
Properties, (ii) reduced its total indebtedness by approximately $128.0
million and (iii) established working capital cash reserves of approximately
$70 million and capital expenditure cash reserves of approximately $2.7
million. The Company is currently negotiating a $100.0 million Credit
Facility, which the Company expects to enter into shortly after consummation
of the Offering. The Credit Facility is expected to be used primarily to
finance acquisitions of additional properties. The availability of funds under
the Credit Facility is expected to be subject to, among other things, the
value of the underlying collateral securing it. The Company expects that,
initially, it will have approximately $50.0 million in availability under the
Credit Facility. In connection with certain leases signed after September 30,
1996, the Company is obligated to fund approximately $2.0 million in tenant
improvements and leasing commissions. This obligation will be assumed by the
principals of KI. The Company presently expects to finance development
activities from working capital and from funds from operations. See "The
Financing--The Credit Facility." In addition, if the Offering is consummated
on or before June 30, 1997, the Company will pay to Richard E. Moran Jr., the
Company's Executive Vice President, Chief Financial Officer and Secretary, a
bonus of $200,000, pursuant to the terms of his employment agreement. This
obligation also will be assumed by the principals of KI. See "Management--
Executive Compensation."
The Company anticipates that distributions will be paid from cash available
for distribution, which is expected to exceed cash historically available for
distribution as a result of the reduction in debt service anticipated to
result from the repayment of indebtedness. The Company presently intends to
make distributions quarterly, subject to the discretion of the Board of
Directors. Amounts accumulated for distribution will be invested by the
Company primarily in interest-bearing accounts and short-term, interest-
bearing securities, which are consistent with the Company's intention to
qualify for taxation as a REIT. Such investments may include, for example,
obligations of the Government National Mortgage Association, other
governmental agency securities, certificates of deposit and interest-bearing
bank deposits.
The Company believes the Offering and the Formation Transactions will
improve its financial performance through changes to its capital structure,
principally the substantial reduction in its overall debt and its debt to
equity ratio. Through the Formation Transactions, the Company will repay all
of its existing mortgage debt of $224.0 million secured by the Properties
(other than the Acquisition Properties) and will have debt outstanding of
$96.0 million comprised of the $84.0 Million Loan and the $12.0 million SeaTac
Loan. The $84.0 Million Loan will bear interest at 8.2%, amortize over 25
years and mature in 2005. The SeaTac Loan will bear interest at a variable
rate and mature in July 1997. Thus, total secured debt after the Formation
Transactions (assuming no advances under the Credit Facility) will be reduced
by approximately $128.0 million. This will result in a significant reduction
in annual mortgage interest expense as a percentage of total revenue (15.9% on
a pro forma basis as compared to 56.3% for the historical year ended December
31, 1995). Cash from operations required to fund interest expense will
decrease substantially, although this reduction will be offset by the use of
cash from operations to meet annual REIT distribution requirements. The market
capitalization of the Company, based on the assumed initial public offering
price of $22.50 per share and the debt outstanding at the completion of the
Offering, is expected to be approximately $439.2 million with total debt of
approximately $96.0 million. As a result, the Company's debt to total market
capitalization ratio will be approximately 21.9%.
The Company was adversely impacted in 1993 and 1994 by the decline in market
rental rates, higher vacancies and its higher leverage which prevented it from
meeting certain of its financial obligations. Bank notes relating to
properties other than the SeaTac Office Center aggregating $9.7 million and
$23.7 million were in default as of December 31, 1995 and 1994, respectively.
Past due interest relating to the notes was $2.9 million and $5.7 million as
of December 31, 1995 and 1994, respectively. In addition, property taxes of
$0.2 million, $0.5 million and $0.6 million were past due as of September 30,
1996, and December 31, 1995 and 1994, respectively. In June 1996, the Company
repaid the principal of the bank notes relating to such properties, and the
applicable accrued interest, and all but $40,000 of the property taxes, with
the proceeds of a financing secured by certain of the Industrial Properties.
With respect to the SeaTac Office Center, a high vacancy rate in 1993 resulted
in insufficient cash flow to service the underlying debt on this property. The
high vacancy rate has
65
<PAGE>
continued and a note payable to an insurance company having a principal
balance of $20.2 million and accrued interest of $1.9 million, as of September
30, 1996, has been in default since October 1995. In October 1996, the Company
successfully negotiated a discounted payoff with the lender and the ground
lessor which provides for a payoff or purchase of the lender's note at a
discount on or before February 10, 1997. The Company believes it will be able
to meet this commitment irrespective of the consummation of the Offering based
upon discussions with other sources of financing. Bank notes relating to the
SeaTac Office Center aggregating $6.8 million were in default as of December
31, 1995 and 1994. Past due interest relating to these notes was $2.1 million
and $1.4 million as of December 31, 1995 and 1994, respectively. In June 1996,
the Company repaid the principal of the bank notes and the applicable accrued
interest relating to the SeaTac Office Center with the proceeds of a financing
secured by certain of the Industrial Properties.
The Company expects to meet its short-term liquidity requirements generally
through its initial working capital, net cash provided by operations and
additional debt or equity financings. The Company estimates that for the 12
months ending September 30, 1997 it will incur approximately $1.1 million of
expenses attributable to non-incremental revenue generating tenant
improvements and leasing commissions and $310,000 of capital expenditures not
reimbursed by tenants. The Company expects that it will incur tenant
improvement and leasing commission costs in connection with the leasing-up of
available space at the SeaTac Office Center. Based upon current market
conditions, the Company estimates that such tenant improvements will be
approximately $15.00 to $20.00 per net rentable square foot and leasing
commissions will be approximately 6.0% to 7.0% of total lease payments made
during the first four years of the lease term, and approximately 3.0% to 4.0%
of total lease payments thereafter. As of December 31, 1996, approximately
330,000 net rentable square feet were available for lease at the SeaTac Office
Center. In addition, the Company will set aside approximately $2.7 million of
the net proceeds of the Offering for certain nonrecurring capital
expenditures. See "Distribution Policy." From such $2.7 million capital
expenditure cash reserves, the Company will pay to Hughes Space &
Communications, in connection with Formation Transactions, the remaining
balance of approximately $1.4 million in connection with the amendment and/or
extension of leases of office space at the Office Properties located at Kilroy
Airport Center, including $500,000 in connection with a tenant improvement
allowance for the properties located at 2240 and 2250 E. Imperial Highway and
the balance in connection with the cancellation of an option to purchase an
equity interest in the Office Properties located at Kilroy Airport Center at
El Segundo. In November 1996, $2.26 million of the option buy-out liability
was paid by KI and its stockholders. Also from such $2.7 million capital
expenditure cash reserves, in connection with the Financing, the Company will
make earthquake-related improvements to certain of the Properties in an
aggregate amount of approximately $500,000. The Company presently has no
financial commitments in its capacity as a developer of real estate projects
and believes that it will have sufficient capital resources to satisfy its
obligations during the 12-month period following completion of the Offering,
and that its net cash provided by operations will be adequate to meet both
operating requirements and expected distributions by the Company in accordance
with REIT requirements.
The Company expects to meet certain of its long-term liquidity requirements,
including the repayment of long-term debt of $84.0 million (less scheduled
principal repayments) in 2005, the repayment of debt of $12.0 million in July
1997 and possible property acquisitions and development, through long-term
secured and unsecured borrowings, including the Credit Facility, and the
issuance of debt securities or additional equity securities of the Company or,
possibly in connection with acquisitions of land or improved properties, the
issuance of Units of the Operating Partnership.
The Phase I environmental assessments of the Properties have not revealed
any environmental liability that the Company believes would have a material
adverse effect on the Company's financial condition or results of operations
taken as a whole, nor is the Company aware of any such material environmental
liability. See "Risk Factors--Government Regulations--Environmental Matters"
and "Business and Properties--Government Regulations--Environmental Matters."
HISTORICAL CASH FLOWS
Historically, the Kilroy Group's principal sources of funding for operations
and capital expenditures were cash flow from operating activities and secured
debt financings. The Kilroy Group incurred net losses before extraordinary
items in each of the last five years and for the nine-month period ended
September 30, 1996.
66
<PAGE>
However, after adding back depreciation and amortization, the Properties have
generated positive net operating cash flows for the last four years.
The Company's net cash provided by operating activities decreased to $6.6
million for the year ended December 31, 1994 from $11.5 million for the same
period in 1993 primarily as a result of lease termination fees of $5.2
received in 1993. The Company's net cash from operating activities increased
$3.5 million from the year ended December 31, 1994 compared to the same period
in 1995, or from $6.6 million in 1994 to $10.1 million in 1995. The increase
was primarily due to the sale of air rights in 1995 of $4.5 million. The
Company's net cash from operating activities decreased $3.8 million to $5.5
million during the nine months ended September 30, 1996 compared with $9.3
million in the comparable 1995 period. The decrease was a result of the sale
of air rights of $4.5 million in 1995, the option buy-out cost of $3.15
million in 1996, offset by an increase in total rent of $1.3 million in 1996
and a decrease in interest expense of $2.5 million in 1996.
Net cash received from investing activities of $2.0 million for the year
ended December 31, 1993 decreased to net cash used in investing activities of
$1.8 million for the same period in 1994 due to the receipt in the 1993 period
of a $2.7 million reimbursement of tenant improvements. Net cash used in
investing activities decreased $0.6 million to $1.2 million for the year ended
December 31, 1995 from $1.8 million for 1994 due to a decrease in the number
of new lease transactions and the resulting decrease in the level of tenant
improvements. Net cash used in investing activities increased $1.7 million to
$2.1 million in the nine months ended September 30, 1996 from $0.4 million in
the 1995 period primarily due to an increase in the number of new lease
transactions and the resulting increase in the level of tenant improvements.
The Company's cash flows used in financing activities decreased $8.7 million
to $4.8 million from $13.5 million for the year ended December 31, 1993 as a
result of net borrowings of $3.9 million during the year ended December 31,
1994 compared to a net repayment of $2.7 million of debt in the 1993 period,
together with an decrease in deemed distributions to partners to $8.7 million
during the year ended December 31, 1994 compared to $10.7 million in the 1993
period. Cash flows used in financing activities increased $4.1 million to $8.9
million for the year ended December 31, 1995 compared to net cash used in
financing activities of $4.8 million for the same period in 1994 as result of
net repayments of debt in the 1995 period compared to net borrowings in the
1994 period and a $4.6 million decrease in deemed distributions to partners.
Cash flows used in financing activities was $3.4 million for the nine months
ended September 30, 1996 consisting of net proceeds from issuance of debt of
$2.8 million, less $6.2 million in distributions to partners.
FUNDS FROM OPERATIONS
Industry analysts generally consider Funds from Operations, as defined by
NAREIT, an alternative measure of performance of an equity REIT. Funds from
Operations is defined by NAREIT to mean net income (loss) determined in
accordance with GAAP, excluding gains (or losses) from debt restructuring and
sales of property, plus depreciation and amortization (other than amortization
of deferred financing costs and depreciation of non-real estate assets), and
after adjustment for unconsolidated partnerships and joint ventures. The
Company believes that in order to facilitate a clear understanding of the
combined historical operating results of the Company, Funds from Operations
should be examined in conjunction with net income (loss) as presented in the
audited Combined Financial Statements and selected financial data included
elsewhere in this Prospectus. The Company computes Funds from Operations in
accordance with standards established by the Board of Governors of NAREIT in
its March 1995 White Paper, which may differ from the methodology for
calculating Funds from Operations utilized by other equity REITs and,
accordingly, may not be comparable to such other REITs. Funds from Operations
should not be considered as an alternative to net income (loss), as an
indication of the Company's performance or to cash flows as a measure of
liquidity or the ability to pay dividends or make distributions.
INFLATION
The Company's leases with the majority of its tenants require the tenants to
pay most operating expenses, including real estate taxes and insurance, and
increases in common area maintenance expenses, which reduce the Company's
exposure to increases in costs and operating expenses resulting from
inflation.
67
<PAGE>
BUSINESS AND PROPERTIES
GENERAL
Upon the consummation of the Offering and the Formation Transactions, the
Company (through the Operating Partnership) will own 14 Office Properties
encompassing an aggregate of approximately 2.0 million rentable square feet
and 12 Industrial Properties encompassing an aggregate of approximately
1.3 million rentable square feet. Eleven of the 14 of the Office Properties as
well as 11 of the 12 Industrial Properties are located in prime Southern
California suburban submarkets (including a complex of three Office Properties
located adjacent to the Los Angeles International Airport, presently the
nation's second largest air cargo port, and a complex of five Office
Properties located adjacent to the Long Beach Municipal Airport). The Company
also will own three Office Properties located adjacent to the Seattle-Tacoma
International Airport in the State of Washington, and one Industrial Property
located in Phoenix, Arizona. As of September 30, 1996, the Office Properties
were approximately 79.8% leased to 130 tenants and the Industrial Properties
were approximately 93.7% leased to 20 tenants. The Company has developed,
managed and leased all but two of the 14 Office Properties and all but five of
the 12 Industrial Properties. The Company believes that all of its Properties
are well-maintained and, based on recent engineering reports, do not require
significant capital improvements.
In addition to the Office and Industrial Properties, the Company has
development rights with respect to approximately 24 acres of developable land
(net of acreage required for streets), located in Southern California. See "--
Development, Leasing and Management Activities." Upon consummation of the
Offering, the Company also will have the option to purchase three office
properties and 18 acres of undeveloped land currently beneficially owned and
controlled by John B. Kilroy, Sr. and John B. Kilroy, Jr. which will not be
contributed to the Operating Partnership immediately upon consummation of the
Offering. The Company will have the right to acquire the option properties
under the terms and conditions described below. All of these properties will
be managed by the Company. See "--Excluded Properties."
In general, the Office Properties are leased to tenants on a full service
basis, with the landlord obligated to pay the tenant's proportionate share of
taxes, insurance and operating expenses up to the amount incurred during the
tenant's first year of occupancy ("Base Year") or a negotiated amount
approximating the tenant's pro rata share of real estate taxes, insurance and
operating expenses ("Expense Stop"). The tenant pays its pro rata share of
increases in expenses above the Base Year or Expense Stop. All leases for the
Industrial Properties are written on a triple net basis, with tenants paying
their proportionate share of real estate taxes, operating costs and utility
costs.
68
<PAGE>
The following table sets forth certain information (on a per net rentable
square foot basis) regarding leasing activity at the Office Properties managed
by the Company (i.e., all of the Office Properties other than the Thousand
Oaks Office Property and the La Palma Business Center Office Property which
are being acquired concurrently upon consummation of the Offering) since
January 1, 1992 (based upon an average of all lease transactions during the
respective periods):
OFFICE PROPERTIES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, NINE-MONTH
---------------------------------- PERIOD ENDED
1992 1993 1994 1995 SEPTEMBER 30, 1996
------- ------- ------- ------- ------------------
<S> <C> <C> <C> <C> <C>
Number of lease
transactions during
period(1).............. 27 19 36 27 31
Rentable square feet
during period(1)....... 221,946 127,126 354,018 105,544 341,940
Base rent ($)(1)(2)..... 21.41 19.32 18.89 19.31 19.52
Tenant improvements
($)(3)................. 9.04 6.82 15.01 7.30 8.99
Leasing commissions
($)(4)................. 1.37 2.18 2.66 3.03 2.87
Other concessions
($)(5)................. -- -- -- -- --
Effective rent ($)(6)... 18.65 17.72 16.97 17.30 17.73
Expense Stop ($)(7)..... 6.05 6.15 6.77 6.77 6.70
Effective equivalent
triple net rent
($)(8)................. 12.43 11.57 10.20 10.53 11.03
Occupancy rate at end of
period (%)............. 74.8% 76.1% 75.8% 75.6% 78.7%
- --------
(1) Includes only office tenants with lease terms of 12 months or longer.
Excludes leases for amenity, parking, retail and month-to-month office
tenants.
(2) Equals aggregate base rent received over their respective terms from all
lease transactions during the period, divided by the terms in months for
such leases, multiplied by 12, divided by the total net rentable square
feet leased under all lease transactions during the period.
(3) Equals work letter costs net of estimated profit and overhead. Actual
tenant improvements may differ from estimated work letter costs.
(4) Equals the aggregate of leasing commissions payable to employees and third
parties based on standard commission rates and excludes negotiated
commission discounts obtained from time to time.
(5) Includes moving expenses, furniture allowances and other concessions.
(6) Equals aggregate base rent received over their respective terms from all
lease transactions during the period minus all tenant improvements,
leasing commissions and other concessions from all lease transactions
during the period, divided by the terms in months from such leases,
multiplied by 12, divided by the total net rentable square feet leased
under all lease transactions during the period.
(7) Equals the amount of real estate taxes, operating costs and utility costs
which the landlord is obligated to pay on an annual basis. The tenant is
required to pay any increases above such amount.
(8) Equals effective rent minus Expense Stop.
The following table sets forth certain information (on a per net rentable
square foot basis) regarding leasing activity at the Thousand Oaks Office
Property since January 1, 1992 (based upon an average of all lease
transactions during the respective periods):
<CAPTION>
YEAR ENDED DECEMBER 31, NINE-MONTH
---------------------------------- PERIOD ENDED
1992 1993 1994 1995 SEPTEMBER 30, 1996
------- ------- ------- ------- ------------------
<S> <C> <C> <C> <C> <C>
Number of lease
transactions during
period(1).............. -- 1 1 9 1
Rentable square feet
during period(1)....... -- 1,437 2,745 76,266 2,745
Base rent ($)(1)(2)..... -- 25.01 23.40 23.09 24.00
Tenant improvements
($)(3)................. -- 16.25 -- 5.04 --
Leasing commissions
($)(4)................. -- -- -- 4.90 --
Other concessions
($)(5)................. -- -- -- -- --
Effective rent ($)(6)... -- 22.73 23.40 21.42 24.00
Expense Stop ($)(7)..... -- 6.45 6.16 6.49 6.16
Effective equivalent
triple net rent
($)(8)................. -- 16.28 17.24 14.93 17.84
Occupancy rate at end of
period (%)(9).......... NA NA NA 100.0% 100.0%
</TABLE>
(footnotes on next page)
69
<PAGE>
- --------
(1) Includes only office tenants with lease terms of 12 months or longer.
Excludes leases for amenity, parking, retail and month-to-month office
tenants.
(2) Equals aggregate base rent received over their respective terms from all
lease transactions during the period, divided by the terms in months for
such leases, multiplied by 12, divided by the total net rentable square
feet leased under all lease transactions during the period.
(3) Equals work letter costs net of estimated profit and overhead. Actual
tenant improvements may differ from estimated work letter costs.
(4) Equals the aggregate of leasing commissions payable to employees and third
parties based on standard commission rates and excludes negotiated
commission discounts obtained from time to time.
(5) Includes moving expenses, furniture allowances and other concessions.
(6) Equals aggregate base rent received over their respective terms from all
lease transactions during the period minus all tenant improvements,
leasing commissions and other concessions from all lease transactions
during the period, divided by the terms in months from such leases,
multiplied by 12, divided by the total net rentable square feet leased
under all lease transactions during the period.
(7) Equals the amount of real estate taxes, operating costs and utility costs
which the landlord is obligated to pay on an annual basis. The tenant is
required to pay any increases above such amount. Expense Stop for 1996 is
estimated.
(8) Equals effective rent minus Expense Stop.
(9) Occupancy data is not available for the years ended December 31, 1992,
1993 and 1994.
The following table sets forth certain information (on a per net rentable
square foot basis) regarding leasing activity at 4175 E. La Palma Avenue,
Building A, La Palma Business Center since January 1, 1992 (based upon an
average of all lease transactions during the respective periods):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, NINE-MONTH
---------------------------- PERIOD ENDED
1992 1993 1994 1995 SEPTEMBER 30, 1996(1)
------ ------ ------ ------ ---------------------
<S> <C> <C> <C> <C> <C>
Number of lease
transactions during
period(2)................ NA -- 1 1 0
Rentable square feet
during period(2)......... NA -- 3,348 2,038 --
Base rent ($)(2)(3)....... NA -- 19.36 16.48 --
Tenant improvements
($)(4)................... NA -- -- 9.69 --
Leasing commissions
($)(5)................... NA -- -- 2.06 --
Other concessions ($)(6).. NA -- -- -- --
Effective rent ($)(7)..... NA -- 19.36 14.17 --
Expense Stop ($)(8)....... NA -- 5.45 5.45 --
Effective equivalent tri-
ple net rent ($)(9)...... NA -- 13.91 8.72 --
Occupancy rate at end of
period (%)(2)(10)........ NA NA 92.6% 93.2% 91.6%
</TABLE>
- --------
(1) No leasing activity occurred during the nine-month period ended
September 30, 1996.
(2) Includes only office tenants with lease terms of 12 months or longer.
Excludes leases for amenity, parking, retail and month-to-month office
tenants.
(3) Equals aggregate base rent received over their respective terms from all
lease transactions during the period, divided by the terms in months for
such leases, multiplied by 12, divided by the total net rentable square
feet leased under all lease transactions during the period.
(4) Equals work letter costs net of estimated profit and overhead. Actual
tenant improvements may differ from estimated work letter costs.
(5) Equals the aggregate of leasing commissions payable to employees and
third parties based on standard commission rates and excludes negotiated
commission discounts obtained from time to time.
(6) Includes moving expenses, furniture allowances and other concessions.
(7) Equals aggregate base rent received over their respective terms from all
lease transactions during the period minus all tenant improvements,
leasing commissions and other concessions from all lease transactions
during the period, divided by the terms in months from such leases,
multiplied by 12, divided by the total net rentable square feet leased
under all lease transactions during the period.
(8) Equals the amount of real estate taxes, operating costs and utility costs
which the landlord is obligated to pay on an annual basis. The tenant is
required to pay any increases above such amount.
(9) Equals effective rent minus Expense Stop.
(10) Occupancy data is not available for the years ended December 31, 1992 and
1993.
70
<PAGE>
The following table sets forth certain information (on a per net rentable
square foot basis) regarding leasing activity at the Industrial Properties
(other than the Industrial Properties at the La Palma Business Center which
are being acquired upon consummation of the Offering and the Industrial
Property located at 12752-12822 Monarch Street, Garden Grove, California,
which was acquired by KI on behalf of the Company prior to consummation of the
Offering) since January 1, 1992 (based upon an average of all lease
transactions during the respective periods):
INDUSTRIAL PROPERTIES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, NINE-MONTH
---------------------------------- PERIOD ENDED
1992 1993 1994 1995 SEPTEMBER 30, 1996(1)
------- ------- ------- ------- ---------------------
<S> <C> <C> <C> <C> <C>
Number of lease
transactions during
period................. 1 1 1 2 0
Net rentable square feet
leased during period... 100,000 70,000 76,570 171,550 --
Base rent ($)(2)........ 6.39 6.81 7.23 4.99 --
Tenant improvements
($)(3)................. 5.87 0.14 4.49 2.00 --
Leasing commissions
($)(4)................. 1.37 1.49 3.49 1.84 --
Other concessions
($)(5)................. -- -- -- -- --
Effective rent ($)(6)... 5.19 6.48 6.44 4.63 --
Expense stop ($)(7)..... -- -- -- -- --
Effective equivalent
triple net rent
($)(8)................. 5.19 6.48 6.44 4.63
Occupancy rate at end of
period (%)............. 86.0% 77.6% 79.7% 98.4% 90.8%
</TABLE>
- --------
(1) No leasing activity occurred during the nine-month period ended September
30, 1996.
(2) Equals aggregate base rent received over their respective terms from all
lease transactions during the period, divided by the terms in months for
such leases, multiplied by 12, divided by the total rentable square feet
leased under all lease transactions during the period.
(3) Equals work letter costs net of estimated profit and overhead. Actual
tenant improvements may differ from estimated work letter costs.
(4) Equals the aggregate of leasing commissions payable to employees and third
parties based on standard commission rates and excludes negotiated
commission discounts obtained from time to time.
(5) Includes moving expenses, furniture allowances and other concessions.
(6) Equals aggregate base rent received over their respective terms from all
lease transactions during the period minus all tenant improvements,
leasing commissions and other concessions from all lease transactions
during the period, divided by the terms in months from such leases,
multiplied by 12, divided by the total net rentable square feet leased
under all lease transactions during the period.
(7) Leases for all Industrial Properties are written on a triple net basis,
providing for each tenant to be responsible, in addition to base rent, for
its proportionate share of real estate taxes, operating costs, utility
costs and other expenses without regard to a base year.
(8) Equals effective rent minus Expense Stop.
71
<PAGE>
The following table sets forth certain information (on a per net rentable
square foot basis) regarding leasing activity at the La Palma Business Center
and Monarch Street Industrial Properties since January 1, 1992 (based upon an
average of all lease transactions during the respective periods):
INDUSTRIAL PROPERTIES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, NINE-MONTH
------------------------------ PERIOD ENDED
1992 1993 1994 1995 SEPTEMBER 30, 1996
----- ------ ------ ------- ------------------
<S> <C> <C> <C> <C> <C>
Number of lease
transactions during
period(1)................. NA 2 -- 4 5
Rentable square feet during
period(2)................. NA 63,094 -- 229,952 107,381
Base rent ($)(2)........... NA 7.37 -- 3.66 4.72
Tenant improvements
($)(3).................... NA 2.65 -- 0.61 0.75
Leasing commissions
($)(4).................... NA 3.61 -- 0.55 1.25
Other concessions ($)(5)... NA -- -- -- --
Effective rent ($)(6)...... NA 7.37 -- 3.48 4.34
Expense stop ($)(7)........ NA -- -- -- --
Effective equivalent triple
net rent ($)(8)........... NA 7.37 -- 3.48 4.34
Occupancy rate at end of
period (%)(9)............. NA NA 51.2% 78.7% 100.0%
</TABLE>
- --------
(1) Includes only industrial tenants with lease terms of 12 months or longer.
(2) Equals aggregate base rent received over their respective terms from all
lease transactions during the period, divided by the terms in months for
such leases, multiplied by 12, divided by the total rentable square feet
leased under all lease transactions during the period.
(3) Equals work letter costs net of estimated profit and overhead. Actual
tenant improvements may differ from estimated work letter costs.
(4) Equals the aggregate of leasing commissions payable to employees and third
parties based on standard commission rates and excludes negotiated
commission discounts obtained from time to time.
(5) Includes moving expenses, furniture allowances and other concessions.
(6) Equals aggregate base rent received over their respective terms from all
lease transactions during the period minus all tenant improvements,
leasing commissions and other concessions from all lease transactions
during the period, divided by the terms in months from such leases,
multiplied by 12, divided by the total net rentable square feet leased
under all lease transactions during the period.
(7) Leases for all Industrial Properties are written on a triple net basis,
providing for each tenant to be responsible, in addition to base rent, for
its proportionate share of real estate taxes, operating costs, utility
costs and other expenses without regard to a base year.
(8) Equals effective rent minus Expense Stop.
(9) Occupancy data is not available for the years ending December 31, 1992 and
1993.
72
<PAGE>
THE OFFICE AND INDUSTRIAL PROPERTIES
The following table sets forth certain information relating to each of the
Properties as of December 31, 1995, unless indicated otherwise. This table
gives pro forma effect to a recent extension of one of the leases with Hughes
Space & Communications with respect to two of the Office Properties located at
Kilroy Airport Center at El Segundo as if such lease renewal had occurred on
January 1, 1995. After completion of the Formation Transactions, the Company
(through the Operating Partnership) will own a 100% interest in all of the
Office and Industrial Properties other than the five Office Properties located
at Kilroy Airport Center Long Beach and the three Office Properties located at
the SeaTac Office Center, each of which are held subject to ground leases
expiring in 2035 and 2064 (assuming the exercise of the Company's options to
extend such lease), respectively.
<TABLE>
<CAPTION>
AVERAGE
PERCENTAGE PERCENTAGE BASE
NET LEASED 1995 OF 1995 RENT
RENTABLE AS OF BASE 1995 TOTAL PER EFFECTIVE
SQUARE 12/31/95 RENT EFFECTIVE BASE SQ. FT. RENT PER
PROPERTY LOCATION YEAR BUILT FEET (%)(1) ($000)(2) RENT($000)(3) RENT (%) ($)(4) SQ. FT. ($)(5)
----------------- ---------- --------- ---------- --------- ------------- ---------- ------- --------------
<C> <C> <C> <C> <C> <C> <C> <C> <C>
Office Properties:
Kilroy Airport Center at El
Segundo
2250 E. Imperial Highway(8).... 1983 291,187 80.9 4,316 4,042 11.5 18.32 17.16
2260 E. Imperial Highway)(9)... 1983 291,187 100.0 7,160 6,545 19.1 24.59 22.48
2240 E. Imperial Highway
El Segundo, California(10)..... 1983 118,933 100.0 1,130 1,121 3.0 9.50 9.43
Kilroy Airport Center Long Beach
3900 Kilroy Airport Way(11).... 1987 126,840 94.0 2,282 2,092 6.1 19.14 17.55
3880 Kilroy Airport Way(11).... 1987 98,243 100.0 1,296 1,022 3.5 13.19 10.40
3760 Kilroy Airport Way........ 1989 165,278 92.1 3,372 2,807 9.0 22.16 18.45
3780 Kilroy Airport Way........ 1989 219,745 63.6 3,465 3,005 9.2 24.79 21.50
3750 Kilroy Airport Way
Long Beach, California......... 1989 10,457 100.0 75 28 0.2 7.21 2.66
SeaTac Office Center
18000 Pacific Highway.......... 1974 207,092 58.7 1,799 1,510 4.8 14.80 12.42
17930 Pacific Highway.......... 1980 210,899 -- -- -- -- -- --
17900 Pacific Highway
Seattle, Washington........... 1980 113,605 87.7 1,896 1,820 5.0 19.02 18.26
La Palma Business Center
4175 E. La Palma Avenue
Anaheim, California(11)....... 1985 42,790 93.2 493 475 1.3 12.37 11.92
2829 Townsgate Road
Thousand Oaks, California(11).. 1990 81,158 100.0 1,888 1,760 5.0 23.26 21.69
185 S. Douglas Street
El Segundo, California(12)..... 1978 60,000 100.0 1,313 898 3.5 21.89 14.96
--------- ----- ------ ------ ---- ----- -----
Subtotal/Weighted Average 2,037,414 77.0 30,485 27,125 81.2 19.44 17.30
--------- ----- ------ ------ ---- ----- -----
Industrial Properties:
2031 E. Mariposa Avenue
El Segundo, California......... 1954 192,053 100.0 1,556 1,296 4.1 8.10 6.75
3340 E. La Palma Avenue
Anaheim, California............ 1966 153,320 100.0 881 790 2.3 5.74 5.16
2260 E. El Segundo Boulevard
El Segundo, California(13)..... 1979 113,820 100.0 553 510 1.5 4.86 4.48
2265 E. El Segundo Boulevard
El Segundo, California......... 1978 76,570 100.0 554 493 1.5 7.23 6.44
1000 E. Ball Road
Anaheim, California(14)........ 1956 100,000 100.0 639 519 1.7 6.39 5.19
1230 S. Lewis Street
Anaheim, California............ 1982 57,730 100.0 303 284 0.8 5.25 4.92
12681/12691 Pala Drive
Garden Grove, California ...... 1970 84,700 82.6 476 454 1.3 6.81 6.48
<CAPTION>
TENANTS LEASING
PERCENTAGE 10% OR MORE OF
LEASED NET RENTABLE
AS OF SQUARE FEET PER
9/30/96 PROPERTY
(%)(6) AS OF 9/30/96(7)
---------- ----------------
<C> <S>
83.9 Hughes Space &
Communications
(33.0%)
100.0 Hughes Space &
Communications
(100.0%)
100.0 Hughes Space &
Communications
(94.6%)
94.0 McDonnell
Douglas
Corporation
(50.9%), Olympus
America, Inc.
(18.6%)
100.0 Devry, Inc.
(100.0%)
82.6 R.L. Polk & Co.
(9.8%)
92.2 SCAN Health Plan
(20.4%), Zelda
Fay Walls (12.7%)
100.0 Oasis Cafe
(37.1%),
Keywanfar &
Baroukhim
(16.1%),
SR Impressions
(15.0%)
60.0 Principal Mutual
(8.8%),
Lynden (8.8%),
Rayonier (8.0%)
-- --
87.7 Key Bank
(41.9%)(15),
Northwest
Airlines
(24.9%),
City of Sea Tac
(17.2%)
91.6 Peryam & Kroll
(26.7%),
DMV/VPI
Insurance Group
(26.5%),
Midcom
Corporation
(15.5%)
100.0 Worldcom, Inc.
(34.2%), Data
Select Systems,
Inc. (13.0%),
Pepperdine
University
(12.7%),
Anheuser Busch,
Inc. (12.0%)
100.0 Northwest
Airlines, Inc.
(100%)
------
79.8
------
Mattel, Inc.
100.0 (100%)
Furon Co., Inc.
59.2 (59.2%)
Ace Medical Co.
100.0 (100%)
100.0 MSAS Cargo
Intl., Inc.
(100%)
100.0 Allen-Bradley
Company (100%)
100.0 Extron
Electronics (100%)
82.6 Rank Video Services America, Inc.
(82.6%)
</TABLE>
(footnotes on next page)
73
<PAGE>
<TABLE>
<CAPTION>
AVERAGE
PERCENTAGE PERCENTAGE BASE PERCENTAGE
NET LEASED 1995 OF 1995 RENT LEASED
RENTABLE AS OF BASE 1995 TOTAL PER EFFECTIVE AS OF
SQUARE 12/31/95 RENT EFFECTIVE BASE SQ. FT. RENT PER 9/30/96
PROPERTY LOCATION YEAR BUILT FEET (%)(1) ($000)(2) RENT($000)(3) RENT (%) ($)(4) SQ. FT. ($)(5) (%)(6)
----------------- ---------- --------- ---------- --------- ------------- ---------- ------- -------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
2270 E. El
Segundo
Boulevard
El Segundo,
California..... 1975 7,500 100.0 129 129 0.3 17.17 17.17 --
5115 N. 27th
Avenue
Phoenix,
Arizona(16).... 1962 130,877 100.0 640 612 1.7 4.89 4.68 100.0
12752-12822
Monarch Street
Garden Grove,
CA(17)......... 1970 277,037 76.4 727 715 1.9 3.43 3.38 100.0
4155 E. La Palma
Avenue
Anaheim,
CA(11)(17)..... 1985 74,618 100.0 325 237 0.9 4.36 3.18 100.0
4125 La Palma
Avenue
Anaheim,
CA(11)(17)..... 1985 69,472 65.6 319 302 0 .8 7.00 6.63 100.0
--------- ----- ------ ------ ----- ----- ----- -----
Subtotal/Weighted
Average 1,337,697 92.2 7,102 6,341 18.8 5.76 5.14 93.7
--------- ----- ------ ------ ----- ----- ----- -----
Office & 3,375,111 83.0 37,587 33,466 100.0 13.42 11.95 85.3
Industrial--All
Properties
--------- ----- ------ ------ ----- ----- ----- -----
<CAPTION>
TENANTS LEASING
10% OR MORE OF
NET RENTABLE
SQUARE FEET PER PROPERTY
PROPERTY LOCATION AS OF 9/30/96(7)
----------------- ------------------------
<S> <C>
2270 E. El
Segundo
Boulevard
El Segundo,
California..... --
5115 N. 27th
Avenue
Phoenix,
Arizona(16).... Festival Markets, Inc. (100%)
12752-12822
Monarch Street
Garden Grove,
CA(17)......... Cannon Equipment (60%),
Vanco (16.4%)
4155 E. La Palma
Avenue
Anaheim,
CA(11)(17)..... Bond Technologies (29.6%),
NovaCare Orthotics (24.0%),
Specialty Restaurants Corp.
(21.7%)
4125 La Palma
Avenue
Anaheim,
CA(11)(17)..... Household Finance
Corporation (59%), CSTS (34%)
Subtotal/Weighted
Average
Office &
Industrial--All
Properties
</TABLE>
- -------
(1) Based on all leases at the respective Properties in effect as of December
31, 1995.
(2) Total base rent for the year ended December 31, 1995, determined in
accordance with generally accepted accounting principles ("GAAP"). All
leases at the Industrial Properties are written on a triple net basis.
Unless otherwise indicated, all leases at the Office Properties are
written on a full service gross basis, with the landlord obligated to pay
the tenant's proportionate share of taxes, insurance and operating
expenses up to the amount incurred during the tenant's first year of
occupancy ("Base Year") or a negotiated amount approximating the tenant's
pro rata share of real estate taxes, insurance and operating expenses
("Expense Stop"). Each tenant pays its pro rata share of increases in
expenses above the Base Year or Expense Stop.
(3) Aggregate base rent received over their respective terms from all leases
in effect at December 31, 1995 minus all tenant improvements, leasing
commissions and other concessions for all such leases, divided by the
terms in months for such leases, multiplied by 12. Tenant improvements,
leasing commissions and other concessions are estimated using the same
methodology used to calculate effective rent for the Properties as a
whole in the charts set forth under the caption "Business and
Properties--General."
(4) Base rent for the year ended December 31, 1995 divided by net rentable
square feet leased at December 31, 1995.
(5) Effective rent at December 31, 1995 divided by net rentable square feet
leased at December 31, 1995.
(6) Based on all leases at the respective Properties dated on or before
September 30, 1996. Occupancy for all Properties at December 31, 1996 was
approximately 88.2%.
(7) Excludes office space leased by the Company.
(8) For this Property, a lease with Hughes Space & Communications, for
approximately 96,000 rentable square feet, and with SDRC Software
Products Marketing Division, Inc., for approximately 6,800 rentable
square feet, are written on a full service gross basis except that there
is no Expense Stop.
(9) For this Property, the lease with Hughes Space & Communications is
written on a modified full service gross basis under which Hughes Space &
Communications pays for all utilities and other internal maintenance
costs with respect to the leased space and, in addition, pays its pro
rata share of real estate taxes, insurance, and certain other expenses
including common area expenses.
(10) For this Property, leases with Hughes Space & Communications for
approximately 101,000 rentable square feet are written on a full service
gross basis except that there is no Expense Stop.
(11) This Property is an Acquisition Property.
(12) For this Property, the lease is written on a triple net basis.
(13) This Industrial Property was vacant until April 1995. The tenant began
paying rent in mid-October 1995 at an annual rate of $4.40 per rentable
square foot.
(14) The tenant subleased this Industrial Property on May 15, 1996 to RGB
Systems, Inc. (doing business as Extron Electronics), the tenant of the
Property located at 1230 S. Lewis Street, Anaheim, California, which is
adjacent to this Property. The sublease is at an amount less than the
current lease rate, and the tenant is paying the difference between the
current lease rate and the sublease rate. The lease and the sublease
terminate in April 1998. Extron Electronics has executed a lease for this
space from May 1998 through April 2005 at the current lease rate. Extron
Electronics continues to occupy the space located at 1230 S. Lewis
Street.
(15) This lease terminates on December 31, 1996.
(16) This Industrial Property was originally designed for multi-tenant use and
currently is leased to a single tenant and utilized as an indoor multi-
vendor retail marketplace.
(17) The leases for this Industrial Property are written on a modified triple
net basis, with the tenants responsible for estimated allocated common
area expenses.
74
<PAGE>
OCCUPANCY AND RENTAL INFORMATION
The following table sets forth the average percentage leased and average
annual base rent per leased square foot for the Properties for the past three
years:
<TABLE>
<CAPTION>
AVERAGE
ANNUAL
BASE RENT
AVERAGE PER RENTABLE
PERCENTAGE SQUARE
YEAR LEASED (%)(1) FOOT($)(2)
---- ------------- ------------
<S> <C> <C>
OFFICE:
1995............................................ 77.0 19.42
1994............................................ 70.9(3) 20.35(3)
1993............................................ 76.1(3) 21.87(3)
INDUSTRIAL:
1995............................................ 81.5 6.52
1994............................................ 78.7(3) 6.71(3)
1993............................................ 81.8(3) 6.73(3)
</TABLE>
- --------
(1) Average of beginning and end-of-year aggregate percentage leased.
(2) Total base rent for the year, determined in accordance with GAAP, divided
by the average of the beginning and end-of-year aggregate rentable square
feet leased.
(3) Excludes data from the Thousands Oaks Office Property and the La Palma
Business Center which are being acquired in connection with the Offering
and the Industrial Property located at 12752-12822 Monarch Street, Garden
Grove, California which was acquired by KI on behalf of the Company prior
to consummation of the Offering.
LEASE EXPIRATIONS
The following table sets out a schedule of the lease expirations for the
Office Properties for each of the ten years beginning with 1996, assuming that
none of the tenants exercises renewal options or termination rights:
<TABLE>
<CAPTION>
NET PERCENTAGE OF ANNUAL AVERAGE ANNUAL
RENTABLE TOTAL LEASED BASE RENT PER NET
AREA SUBJECT SQUARE FEET RENT UNDER RENTABLE SQUARE FOOT
NUMBER OF TO EXPIRING REPRESENTED BY EXPIRING REPRESENTED BY
YEAR OF LEASE EXPIRING LEASES EXPIRING LEASES EXPIRING
EXPIRATION LEASES(1) (SQ. FT.) LEASES(%)(2) ($000)(3) LEASES($)(4)
------------- --------- ------------ -------------- ---------- --------------------
<S> <C> <C> <C> <C> <C>
10/01/96-12/31/1996..... 7 83,080 5.26 $ 1,340 $16.13
1997..... 16 61,854 3.92 1,226 19.82
1998..... 20 85,138 5.39 1,942 22.80
1999..... 29 261,082 16.53 4,507 17.26
2000..... 24 149,969 9.50 3,300 22.00
2001(4).. 20 289,383 18.32 5,105 17.64
2002..... 2 83,047 5.26 1,606 19.34
2003..... 3 17,574 1.11 346 19.72
2004..... 4 311,491 19.72 7,731 24.82
2005 and
beyond................. 10 236,731 14.99 4,174 17.63
--- --------- ------ ------- ------
Totals................ 135 1,579,349 100.00 $31,278 $19.80
=== ========= ====== ======= ======
</TABLE>
- --------
(1) Includes office tenants only. Excludes leases for amenity, retail, parking
and month-to-month office tenants. Some tenants have multiple leases.
(2) Excludes all space vacant as of December 31, 1995 unless a lease for a
replacement tenant has been dated on or before September 30, 1996.
(3) Determined based upon aggregate base rent to be received over the term
divided by the term in months multiplied by 12, including all leases dated
on or before September 30, 1996. Certain leases became effective
subsequent to September 30, 1996.
(4) Includes Hughes Space & Communications leases of 96,133 and 11,556 net
rentable square feet at Kilroy Airport Center at El Segundo. These leases
expire in October 2001 and are at a triple net base rental rate of $14.04
per square foot.
75
<PAGE>
The following table sets out a schedule of the lease expirations for the
Industrial Properties for each of the ten years beginning with 1996, assuming
that none of the tenants exercises renewal options or termination rights:
<TABLE>
<CAPTION>
NET PERCENTAGE OF ANNUAL AVERAGE ANNUAL
RENTABLE TOTAL LEASED BASE RENT PER NET
AREA SUBJECT SQUARE FEET RENT UNDER RENTABLE SQUARE FOOT
NUMBER OF TO EXPIRING REPRESENTED BY EXPIRING REPRESENTED BY
YEAR OF LEASE EXPIRING LEASES EXPIRING LEASES EXPIRING
EXPIRATION LEASES (SQ. FT.) LEASES(%)(1) ($000)(2) LEASES($)
------------- --------- ------------ -------------- ---------- --------------------
<S> <C> <C> <C> <C> <C>
10/01/96-12/31/1996..... 0 -- -- -- --
1997.................... 0 -- -- -- --
1998.................... 1 70,000 5.61 476 6.81
1999.................... 1 22,888 1.83 78 3.41
2000.................... 3 210,464 16.86 1,594 7.58
2001.................... 4 189,667 15.19 918 4.84
2002.................... 0 -- -- -- --
2003.................... 4 252,966 20.26 1,204 4.76
2004.................... 1 76,570 6.13 554 7.23
2005 and beyond......... 6 425,787 34.12 2,317 5.44
--- --------- ------ ------ -----
Totals.............. 20 1,248,342 100.00 $7,141 $5.72
=== ========= ====== ====== =====
</TABLE>
- --------
(1) Excludes all space vacant as of December 31, 1995 unless a lease for a
replacement tenant has been dated on or before September 30, 1996.
(2) Determined based upon aggregate base rent to be received over the term
divided by the term in months multiplied by 12, including all leases dated
on or before September 30, 1996.
76
<PAGE>
The following table sets forth detailed lease expiration information for
each of the Properties for leases in place as of September 30, 1996, assuming
that none of the tenants exercise renewal options or terminations rights, if
any, at or prior to the scheduled expirations:
OFFICE PROPERTIES
<TABLE>
<CAPTION>
YEAR OF LEASE EXPIRATION
----------------------------------------------------------------------------------------------
1996(1) 1997 1998 1999 2000 2001 2002 2003
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
2250 E. Imperial
Highway
El Segundo, CA
Square Footage
of Expiring
Leases.......... 1,317 4,385 23,033 29,148 18,201 112,715 18,517
Percentage of
Total Leased Sq.
Ft.............. 0.58% 1.92% 10.07% 12.74% 7.96% 49.28% 8.10%
Annualized Base
Rent of Expiring
Leases.......... $ 24,496 $ 83,025 $ 464,705 $ 695,821 $ 302,853 $1,653,035 $ 456,220
Percentage of
Total Annualized
Base Rent....... 0.59% 1.99% 11.16% 16.70% 7.27% 39.68% 10.95%
Number of Leases
Expiring........ 1 3 6 4 2 3 1
2260 E. Imperial
Highway
El Segundo, CA
Square Footage
of Expiring
Leases..........
Percentage of
Total Leased Sq.
Ft..............
Annualized Base
Rent of Expiring
Leases..........
Percentage of
Total Annualized
Base Rent.......
Number of Leases
Expiring........
2240 E. Imperial
Highway
El Segundo, CA
Square Footage
of Expiring
Leases.......... 100,978 15,898
Percentage of
Total Leased Sq.
Ft.............. 86.40% 13.60%
Annualized Base
Rent of Expiring
Leases.......... $1,085,716 $ 196,670
Percentage of
Total Annualized
Base Rent....... 84.66% 15.34%
Number of Leases
Expiring........ 1 2
3900 Kilroy
Airport Way
Long Beach, CA
Square Footage
of Expiring
Leases.......... 26,356 12,406 6,811 64,530
Percentage of
Total Leased Sq.
Ft.............. 22.10% 10.41% 5.71% 54.12%
Annualized Base
Rent of Expiring
Leases.......... $ 516,551 $ 221,992 $ 124,105 $1,149,922
Percentage of
Total Annualized
Base Rent....... 22.63% 9.73% 5.44% 50.39%
Number of Leases
Expiring........ 2 2 1 1
3880 Kilroy
Airport Way
Long Beach, CA
Square Footage
of Expiring
Leases..........
Percentage of
Total Leased Sq.
Ft..............
Annualized Base
Rent of Expiring
Leases..........
Percentage of
Total Annualized
Base Rent.......
Number of Leases
Expiring........
<CAPTION>
----------------------------------------------------------
2004 2005 2006 2009 TOTAL
---------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C>
2250 E. Imperial
Highway
El Segundo, CA
Square Footage
of Expiring
Leases.......... 21,418 228,734
Percentage of
Total Leased Sq.
Ft.............. 9.35% 100%
Annualized Base
Rent of Expiring
Leases.......... $ 485,244 $ 4,165,399
Percentage of
Total Annualized
Base Rent....... 11.66% 100%
Number of Leases
Expiring........ 2 22
2260 E. Imperial
Highway
El Segundo, CA
Square Footage
of Expiring
Leases.......... 286,151 286,151
Percentage of
Total Leased Sq.
Ft.............. 100.00% 100%
Annualized Base
Rent of Expiring
Leases.......... $7,160,207 $ 7,160,207
Percentage of
Total Annualized
Base Rent....... 100.00% 100%
Number of Leases
Expiring........ 1 1
2240 E. Imperial
Highway
El Segundo, CA
Square Footage
of Expiring
Leases.......... 116,876
Percentage of
Total Leased Sq.
Ft.............. 100%
Annualized Base
Rent of Expiring
Leases.......... $ 1,282,386
Percentage of
Total Annualized
Base Rent....... 100%
Number of Leases
Expiring........ 3
3900 Kilroy
Airport Way
Long Beach, CA
Square Footage
of Expiring
Leases.......... 9,128 119,231
Percentage of
Total Leased Sq.
Ft.............. 7.66% 100%
Annualized Base
Rent of Expiring
Leases.......... $ 269,532 $ 2,282,102
Percentage of
Total Annualized
Base Rent....... 11.81% 100%
Number of Leases
Expiring........ 1 7
3880 Kilroy
Airport Way
Long Beach, CA
Square Footage
of Expiring
Leases.......... 98,243 98,243
Percentage of
Total Leased Sq.
Ft.............. 100.00% 100%
Annualized Base
Rent of Expiring
Leases.......... $1,296,270 $ 1,296,270
Percentage of
Total Annualized
Base Rent....... 100.00% 100%
Number of Leases
Expiring........ 1 1
</TABLE>
- ----
(1) Represents lease expirations data from October 1, 1996 to December 31,
1996.
77
<PAGE>
<TABLE>
<CAPTION>
YEAR OF LEASE EXPIRATION
----------------------------------------------------------------------------------------------
1996(1) 1997 1998 1999 2000 2001 2002 2003
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
3760 Kilroy
Airport Way
Long Beach, CA
Square Footage
of Expiring
Leases......... 12,545 8,698 23,598 46,675 19,385 27,470 4,892
Percentage of
Total Leased
Sq. Ft......... 8.76% 6.07% 16.47% 32.58% 13.53% 19.17% 3.41%
Annualized Base
Rent of Expiring
Leases.......... $ 334,440 $ 194,155 $ 529,690 $ 947,293 $ 412,749 $ 560,406 $ 100,330
Percentage of
Total Annualized
Base Rent....... 10.86% 6.31% 17.20% 30.77% 13.41% 18.20% 3.26%
Number of Leases
Expiring........ 2 1 4 9 3 3 1
3780 Kilroy
Airport Way
Long Beach, CA
Square Footage
of Expiring
Leases.......... 22,469 2,088 4,339 74,093 28,251 9,439
Percentage of
Total Leased Sq.
Ft.............. 11.47% 1.07% 2.22% 37.82% 14.42% 4.82%
Annualized Base
Rent of Expiring
Leases.......... $ 532,872 $ 47,606 $ 89,709 $1,816,896 $ 638,222 $ 209,299
Percentage of
Total Annualized
Base Rent....... 11.85% 1.06% 1.99% 40.40% 14.19% 4.65%
Number of Leases
Expiring........ 4 1 2 7 5 1
3750 Kilroy
Airport Way
Long Beach, CA
Square Footage
of Expiring
Leases.......... 1,570 1,685
Percentage of
Total Leased Sq.
Ft.............. 22.01% 23.62%
Annualized Base
Rent of Expiring
Leases.......... $ 37,155 $ 11,400
Percentage of
Total Annualized
Base Rent....... 49.28% 15.12%
Number of Leases
Expiring........ 1 1
18000 Pacific
Highway
Seattle, WA
Square Footage
of Expiring
Leases.......... 21,669 14,633 5,171 8,941 8,678 20,974 3,243
Percentage of
Total Leased Sq.
Ft. ............ 19.99% 13.50% 4.77% 8.25% 8.01% 19.35% 2.99%
Annualized Base
Rent of Expiring
Leases.......... $ 313,357 $ 209,460 $ 81,505 $ 119,698 $ 132,601 $ 383,924 $ 36,845
Percentage of
Total Annualized
Base Rent....... 18.33% 12.25% 4.77% 7.00% 7.76% 22.46% 2.16%
Number of Leases
Expiring........ 3 3 4 6 4 2 1
17930 Pacific
Highway
Seattle, WA
Square Footage
of Expiring
Leases..........
Percentage of
Total Leased Sq.
Ft. ............
Annualized Base
Rent of Expiring
Leases..........
Percentage of
Total Annualized
Base Rent.......
Number of Leases
Expiring........
<CAPTION>
----------------------------------------------------------
2004 2005 2006 2009 TOTAL
---------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C>
3760 Kilroy
Airport Way
Long Beach, CA
Square Footage
of Expiring
Leases......... 143,263
Percentage of
Total Leased
Sq. Ft......... 100%
Annualized Base
Rent of Expiring
Leases.......... $ 3,079,063
Percentage of
Total Annualized
Base Rent....... 100%
Number of Leases
Expiring........ 23
3780 Kilroy
Airport Way
Long Beach, CA
Square Footage
of Expiring
Leases.......... 3,922 51,290 195,891
Percentage of
Total Leased Sq.
Ft.............. 2.00% 26.18% 100%
Annualized Base
Rent of Expiring
Leases.......... $ 85,656 $1,077,090 $ 4,497,350
Percentage of
Total Annualized
Base Rent....... 1.90% 23.95% 100%
Number of Leases
Expiring........ 1 2 23
3750 Kilroy
Airport Way
Long Beach, CA
Square Footage
of Expiring
Leases.......... 3,878 7,133
Percentage of
Total Leased Sq.
Ft.............. 54.37% 100%
Annualized Base
Rent of Expiring
Leases.......... $ 26,839 $ 75,394
Percentage of
Total Annualized
Base Rent....... 35.60% 100%
Number of Leases
Expiring........ 1 3
18000 Pacific
Highway
Seattle, WA
Square Footage
of Expiring
Leases.......... 25,087 108,396
Percentage of
Total Leased Sq.
Ft. ............ 23.14% 100%
Annualized Base
Rent of Expiring
Leases.......... $ 432,104 $ 1,709,494
Percentage of
Total Annualized
Base Rent....... 25.28% 100%
Number of Leases
Expiring........ 2 25
17930 Pacific
Highway
Seattle, WA
Square Footage
of Expiring
Leases.......... --
Percentage of
Total Leased Sq.
Ft. ............ --
Annualized Base
Rent of Expiring
Leases.......... --
Percentage of
Total Annualized
Base Rent....... --
Number of Leases
Expiring........ --
</TABLE>
- ------
(1) Represents lease expirations data from October 1, 1996 to December 31,
1996.
78
<PAGE>
<TABLE>
<CAPTION>
YEAR OF LEASE EXPIRATION
----------------------------------------------------------------------------------------------
1996(1) 1997 1998 1999 2000 2001 2002 2003
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
17900 Pacific
Highway
Seattle, WA
Square Footage
of Expiring
Leases......... 47,549 23,772
Percentage of
Total Leased
Sq. Ft. ....... 47.73% 23.86%
Annualized Base
Rent of
Expiring
Leases......... $ 667,587 $ 512,695
Percentage of
Total
Annualized Base
Rent........... 37.03% 28.44%
Number of Leases
Expiring....... 1 3
4175 E. La Palma
Avenue
Anaheim, CA
Square Footage
of Expiring
Leases......... 8,924 1,300 2,038 22,390
Percentage of
Total Leased
Sq. Ft. ....... 25.75% 3.75 5.88% 64.61%
Annualized Base
Rent of
Expiring
Leases......... $ 141,093 $ 48,113 $ 19,595 $ 348,230
Percentage of
Total
Annualized Base
Rent........... 25.33% 8.64 3.52% 62.52%
Number of Leases
Expiring....... 4 1 1 3
2829 Townsgate
Road
Thousand Oaks, CA
Square Footage
of Expiring
Leases......... 2,745 3,592 34,823 19,193
Percentage of
Total Leased
Sq. Ft. ....... 3.38% 4.43% 42.91% 23.65%
Annualized Base
Rent of
Expiring
Leases......... $ 65,064 $ 84,384 $ 834,132 $ 454,075
Percentage of
Total
Annualized Base
Rent........... 3.45% 4.47% 44.18% 24.05%
Number of Leases
Expiring....... 1 1 2 5
185 S. Douglas
Street
El Segundo, CA
Square Footage
of Expiring
Leases......... 60,000
Percentage of
Total Leased
Sq. Ft. ....... 100.00%
Annualized Base
Rent of
Expiring
Leases......... $1,313,418
Percentage of
Total
Annualized Base
Rent........... 100.00%
Number of Leases
Expiring....... 1
OFFICE SUBTOTALS
Square Footage
of Expiring
Leases......... 83,080 61,854 85,138 261,082 149,969 289,383 83,047 17,574
Percentage of
Aggregate
Leased
Sq. Ft. ....... 5.26% 3.92% 5.39% 16.53% 9.50% 18.32% 5.26% 1.11%
Annualized Base
Rent of
Expiring
Leases......... $1,339,880 $1,225,669 $1,772,554 $4,507,056 $3,300,029 $5,105,305 $1,606,142 $ 346,474
Percentage of
Aggregate
Annualized Base
Rent........... 4.31% 3.94% 5.70% 14.49% 10.61% 16.41% 5.16% 1.11%
Number of Leases
Expiring....... 7 16 19 29 24 20 2 3
<CAPTION>
-----------------------------------------------------------
2004 2005 2006 2009 TOTAL
---------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C>
17900 Pacific
Highway
Seattle, WA
Square Footage
of Expiring
Leases......... 28,300 99,621
Percentage of
Total Leased
Sq. Ft. ....... 28.41% 100%
Annualized Base
Rent of
Expiring
Leases......... $ 622,317 $ 1,802,599
Percentage of
Total
Annualized Base
Rent........... 34.52% 100%
Number of Leases
Expiring....... 1 5
4175 E. La Palma
Avenue
Anaheim, CA
Square Footage
of Expiring
Leases......... 34,652
Percentage of
Total Leased
Sq. Ft. ....... 100%
Annualized Base
Rent of
Expiring
Leases......... $ 557,031
Percentage of
Total
Annualized Base
Rent........... 100%
Number of Leases
Expiring....... 9
2829 Townsgate
Road
Thousand Oaks, CA
Square Footage
of Expiring
Leases......... 20,805 81,158
Percentage of
Total Leased
Sq. Ft. ....... 25.64% 100%
Annualized Base
Rent of
Expiring
Leases......... $ 450,288 $ 1,887,943
Percentage of
Total
Annualized Base
Rent........... 23.85% 100%
Number of Leases
Expiring....... 2 11
185 S. Douglas
Street
El Segundo, CA
Square Footage
of Expiring
Leases......... 60,000
Percentage of
Total Leased
Sq. Ft. ....... 100%
Annualized Base
Rent of
Expiring
Leases......... $ 1,313,418
Percentage of
Total
Annualized Base
Rent........... 100%
Number of Leases
Expiring....... 1
OFFICE SUBTOTALS
Square Footage
of Expiring
Leases......... 311,491 52,983 85,505 98,243 1,579,349
Percentage of
Aggregate
Leased
Sq. Ft. ....... 19.72% 3.35% 5.41% 6.22% 100%
Annualized Base
Rent of
Expiring
Leases......... $7,731,107 $1,099,444 $1,778,726 $1,296,270 $31,108,655
Percentage of
Aggregate
Annualized Base
Rent........... 24.85% 3.53% 5.72% 4.17% 100%
Number of Leases
Expiring....... 4 4 5 1 134
</TABLE>
- ------
(1) Represents lease expirations data from October 1, 1996 to December 31,
1996.
79
<PAGE>
INDUSTRIAL PROPERTIES
<TABLE>
<CAPTION>
YEAR OF LEASE EXPIRATION
----------------------------------------------------------------------------------------
1996(1) 1997 1998 1999 2000 2001 2002 2003
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
2031 E. Mariposa
Avenue
El Segundo, CA
Square Footage
of Expiring
Leases......... 192,053
Percentage of
Total Leased
Sq. Ft. ....... 100.00%
Annualized Base
Rent of
Expiring
Leases......... $1,556,321
Percentage of
Total
Annualized Base
Rent........... 100.00%
Number of Leases
Expiring....... 1
3332 E. La Palma
Avenue
Anaheim, CA
Square Footage
of Expiring
Leases.........
Percentage of
Total Leased
Sq. Ft. .......
Annualized Base
Rent of
Expiring
Leases.........
Percentage of
Total
Annualized Base
Rent...........
Number of Leases
Expiring.......
2260 E. El
Segundo
Boulevard
El Segundo, CA
Square Footage
of Expiring
Leases.........
Percentage of
Total Leased
Sq. Ft. .......
Annualized Base
Rent of
Expiring
Leases.........
Percentage of
Total
Annualized Base
Rent...........
Number of Leases
Expiring.......
2265 E. El
Segundo
Boulevard
El Segundo, CA
Square Footage
of Expiring
Leases.........
Percentage of
Total Leased
Sq. Ft. .......
Annualized Base
Rent of
Expiring
Leases.........
Percentage of
Total
Annualized Base
Rent...........
Number of Leases
Expiring.......
1000 E. Ball Road
Anaheim, CA
Square Footage
of Expiring
Leases.........
Percentage of
Total Leased
Sq. Ft. .......
Annualized Base
Rent of
Expiring
Leases.........
Percentage of
Total
Annualized Base
Rent...........
Number of Leases
Expiring.......
<CAPTION>
----------------------------------------------------------
2004 2005 2006 2009 TOTAL
---------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C>
2031 E. Mariposa
Avenue
El Segundo, CA
Square Footage
of Expiring
Leases......... 192,053
Percentage of
Total Leased
Sq. Ft. ....... 100%
Annualized Base
Rent of
Expiring
Leases......... $ 1,556,321
Percentage of
Total
Annualized Base
Rent........... 100%
Number of Leases
Expiring....... 1
3332 E. La Palma
Avenue
Anaheim, CA
Square Footage
of Expiring
Leases......... 90,746 90,746
Percentage of
Total Leased
Sq. Ft. ....... 100.00% 100%
Annualized Base
Rent of
Expiring
Leases......... $ 543,180 $ 543,180
Percentage of
Total
Annualized Base
Rent........... 100.00% 100%
Number of Leases
Expiring....... 1 1
2260 E. El
Segundo
Boulevard
El Segundo, CA
Square Footage
of Expiring
Leases......... 113,820 113,820
Percentage of
Total Leased
Sq. Ft. ....... 100.00% 100%
Annualized Base
Rent of
Expiring
Leases......... $ 553,300 $ 553,300
Percentage of
Total
Annualized Base
Rent........... 100.00% 100%
Number of Leases
Expiring....... 1 1
2265 E. El
Segundo
Boulevard
El Segundo, CA
Square Footage
of Expiring
Leases......... 76,570 76,570
Percentage of
Total Leased
Sq. Ft. ....... 100.00% 100%
Annualized Base
Rent of
Expiring
Leases......... $ 553,934 $ 553,934
Percentage of
Total
Annualized Base
Rent........... 100.00% 100%
Number of Leases
Expiring....... 1 1
1000 E. Ball Road
Anaheim, CA
Square Footage
of Expiring
Leases......... 100,000 100,000
Percentage of
Total Leased
Sq. Ft. ....... 100.00% 100%
Annualized Base
Rent of
Expiring
Leases......... $ 639,432 $ 639,432
Percentage of
Total
Annualized Base
Rent........... 100.00% 100%
Number of Leases
Expiring....... 1 1
</TABLE>
- ------
(1) Represents lease expirations data from October 1, 1996 to December 31,
1996.
80
<PAGE>
<TABLE>
<CAPTION>
YEAR OF LEASE EXPIRATION
------------------------------------------------------------------------------------------
1996(1) 1997 1998 1999 2000 2001 2002 2003
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1230 S. Lewis
Street
Anaheim, CA
Square Footage
of Expiring
Leases.........
Percentage of
Total Leased
Sq. Ft. .......
Annualized Base
Rent of
Expiring
Leases.........
Percentage of
Total
Annualized Base
Rent...........
Number of Leases
Expiring.......
12681/12691 Pala
Drive
Garden Grove, CA
Square Footage
of Expiring
Leases......... 70,000
Percentage of
Total Leased
Sq. Ft. ....... 100.00%
Annualized Base
Rent of
Expiring
Leases......... $ 476,358
Percentage of
Total
Annualized Base
Rent........... 100.00%
Number of Leases
Expiring....... 1
2270 E. El
Segundo
Boulevard
El Segundo, CA
Square Footage
of Expiring
Leases.........
Percentage of
Total Leased
Sq. Ft. .......
Annualized Base
Rent of
Expiring
Leases.........
Percentage of
Total
Annualized Base
Rent...........
Number of Leases
Expiring.......
5115 N. 27th
Avenue
Phoenix, AZ
Square Footage
of Expiring
Leases......... 130,877
Percentage of
Total Leased
Sq. Ft. ....... 100.00%
Annualized Base
Rent of
Expiring
Leases......... $ 640,348
Percentage of
Total
Annualized Base
Rent........... 100.00%
Number of Leases
Expiring....... 1
12752-12822
Monarch Street
Garden Grove, CA
Square Footage
of Expiring
Leases......... 22,888 42,608 165,981
Percentage of
Total Leased
Sq. Ft......... 8.26% 15.38% 59.91%
Annualized Base
Rent of
Expiring
Leases......... $ 78,060 $ 136,171 $ 592,548
Percentage of
Total
Annualized Base
Rent........... 8.28% 14.45% 62.89%
Number of Leases
Expiring....... 1 2 1
<CAPTION>
---------------------------------------------------------
2004 2005 2006 2009 TOTAL
---------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C>
1230 S. Lewis
Street
Anaheim, CA
Square Footage
of Expiring
Leases......... 57,730 57,730
Percentage of
Total Leased
Sq. Ft. ....... 100.00% 100%
Annualized Base
Rent of
Expiring
Leases......... $ 302,930 $ 302,930
Percentage of
Total
Annualized Base
Rent........... 100.00% 100%
Number of Leases
Expiring....... 1 1
12681/12691 Pala
Drive
Garden Grove, CA
Square Footage
of Expiring
Leases......... 70,000
Percentage of
Total Leased
Sq. Ft. ....... 100%
Annualized Base
Rent of
Expiring
Leases......... $ 476,358
Percentage of
Total
Annualized Base
Rent........... 100%
Number of Leases
Expiring....... 1
2270 E. El
Segundo
Boulevard
El Segundo, CA
Square Footage
of Expiring
Leases......... --
Percentage of
Total Leased
Sq. Ft. ....... --
Annualized Base
Rent of
Expiring
Leases......... --
Percentage of
Total
Annualized Base
Rent........... --
Number of Leases
Expiring....... --
5115 N. 27th
Avenue
Phoenix, AZ
Square Footage
of Expiring
Leases......... 130,877
Percentage of
Total Leased
Sq. Ft. ....... 100%
Annualized Base
Rent of
Expiring
Leases......... $ 640,348
Percentage of
Total
Annualized Base
Rent........... 100%
Number of Leases
Expiring....... 1
12752-12822
Monarch Street
Garden Grove, CA
Square Footage
of Expiring
Leases......... 45,560 277,037
Percentage of
Total Leased
Sq. Ft......... 16.45% 100%
Annualized Base
Rent of
Expiring
Leases......... $ 135,432 $ 942,211
Percentage of
Total
Annualized Base
Rent........... 14.37% 100%
Number of Leases
Expiring....... 1 5
</TABLE>
- ------
(1) Represents lease expirations data from October 1, 1996 to December 31,
1996.
81
<PAGE>
<TABLE>
<CAPTION>
YEAR OF LEASE EXPIRATION
----------------------------------------------------------------------------------------------
1996(1) 1997 1998 1999 2000 2001 2002 2003
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
4155 E. La Palma
Avenue
Anaheim, CA
Square Footage
of Expiring
Leases......... 18,411 16,182 22,094
Percentage of
Total Leased
Sq. Ft......... 24.67% 21.69% 29.61%
Annualized Base
Rent of
Expiring
Leases......... $ 37,970 $ 141,574 $ 145,820
Percentage of
Total
Annualized Base
Rent........... 8.12% 30.29% 31.20%
Number of Leases
Expiring....... 2 1 1
4125 E. La Palma
Avenue
Anaheim, CA
Square Footage
of Expiring
Leases......... 64,891
Percentage of
Total Leased
Sq. Ft......... 100.00%
Annualized Base
Rent of
Expiring
Leases......... $ 465,407
Percentage of
Total
Annualized Base
Rent........... 100.00%
Number of Leases
Expiring....... 2
INDUSTRIAL
SUBTOTALS
Square Footage
of Expiring
Leases......... 70,000 22,888 210,464 189,667 252,966
Percentage of
Aggregate
Leased
Sq. Ft. ....... 5.61% 1.83% 16.86% 15.19% 20.26%
Annualized Base
Rent of
Expiring
Leases......... $ 476,358 $ 78,060 $1,594,291 $ 918,093 $1,203,775
Percentage of
Aggregate
Annualized Base
Rent........... 6.67% 1.09% 22.33% 12.86% 16.86%
Number of Leases
Expiring....... 1 1 3 4 4
PORTFOLIO TOTALS
Square Footage
of Expiring
Leases......... 83,080 61,854 155,138 283,970 360,433 479,050 83,047 270,540
Percentage of
Aggregate
Leased
Sq. Ft. ....... 2.94% 2.19% 5.49% 10.04% 12.75% 16.94% 2.94% 9.57%
Annualized Base
Rent of
Expiring
Leases......... $1,339,880 $1,225,669 $2,248,912 $4,585,116 $4,894,320 $6,023,398 $1,606,142 $1,550,249
Percentage of
Aggregate
Annualized Base
Rent........... 3.50% 3.20% 5.88% 11.99% 12.80% 15.75% 4.20% 4.05%
Number of Leases
Expiring....... 7 16 20 30 27 24 2 7
<CAPTION>
-----------------------------------------------------------
2004 2005 2006 2009 TOTAL
---------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C>
4155 E. La Palma
Avenue
Anaheim, CA
Square Footage
of Expiring
Leases......... 17,931 74,618
Percentage of
Total Leased
Sq. Ft......... 24.03% 100%
Annualized Base
Rent of
Expiring
Leases......... $ 142,080 $ 467,444
Percentage of
Total
Annualized Base
Rent........... 30.40% 100%
Number of Leases
Expiring....... 1 5
4125 E. La Palma
Avenue
Anaheim, CA
Square Footage
of Expiring
Leases......... 64,891
Percentage of
Total Leased
Sq. Ft......... 100%
Annualized Base
Rent of
Expiring
Leases......... $ 465,407
Percentage of
Total
Annualized Base
Rent........... 100%
Number of Leases
Expiring....... 2
INDUSTRIAL
SUBTOTALS
Square Footage
of Expiring
Leases......... 76,570 248,476 177,311 1,248,342
Percentage of
Aggregate
Leased
Sq. Ft. ....... 6.13% 19.90% 14.22% 100%
Annualized Base
Rent of
Expiring
Leases......... $ 553,934 $1,485,542 $ 830,812 $ 7,140,865
Percentage of
Aggregate
Annualized Base
Rent........... 7.76% 20.80% 11.63% 100%
Number of Leases
Expiring....... 1 3 3 20
PORTFOLIO TOTALS
Square Footage
of Expiring
Leases......... 388,061 301,459 262,816 98,243 2,827,691
Percentage of
Aggregate
Leased
Sq. Ft. ....... 13.72% 10.66% 9.29% 3.47% 100%
Annualized Base
Rent of
Expiring
Leases......... $8,285,041 $2,584,986 $2,609,538 $1,296,270 $38,249,521
Percentage of
Aggregate
Annualized Base
Rent........... 21.66% 6.76% 6.82% 3.39% 100%
Number of Leases
Expiring....... 5 7 8 1 154
</TABLE>
- ------
(1) Represents lease expirations data from October 1, 1996 to December 31,
1996.
82
<PAGE>
TENANT INFORMATION
The Company's tenants include significant corporate and other commercial
enterprises representing a range of industries including, among others,
satellite communications, manufacturing, entertainment, banking, insurance,
telecommunications, health care, computer software, finance, engineering,
technology, legal and accounting. The following table sets forth information
as to the Company's largest tenants based upon annualized rental revenues for
the year ended December 31, 1995:
<TABLE>
<CAPTION>
PERCENTAGE OF
TENANT COMPANY'S
ANNUAL TOTAL LEASE
BASE RENTAL BASE RENTAL INITIAL LEASE EXPIRATION
REVENUE($)(2) REVENUES(%) DATE(3) DATE
------------- ------------- -------------- --------------
<S> <C> <C> <C> <C>
Office Tenants(1):
Hughes Aircraft
Corporation's Space &
Communications
Company(4)........... $ 9,757,877(5) 25.32 August 1984 January 1999
Northwest Airlines:
El Segundo.......... 1,313,418 3.41 August 1978 February 2001
Seattle............. 622,317 1.62 May 1980 April 2005
Devry, Inc............ 1,296,270 3.36 November 1994 October 2009
McDonnell Douglas
Corporation.......... 1,149,922 2.98 February 1992 January 2002
SCAN(6)............... 941,325 2.44 February 1996 May 2006
Zelda Fay Walls(7).... 823,896 2.14 August 1989 August 2000
Worldcom, Inc......... 674,592 1.75 January 1995 December 1999
The Walls Group....... 456,220 1.18 October 1991 September 2002
Olympus America,
Inc.................. 443,375 1.15 September 1993 December 1998
SITA.................. 378,359 0.98 June 1984 May 1999
----------- -----
Total............... $17,857,571 46.33
=========== =====
<CAPTION>
PERCENTAGE OF
TENANT COMPANY'S
ANNUAL TOTAL LEASE
BASE RENTAL BASE RENTAL INITIAL LEASE EXPIRATION
REVENUE($)(2) REVENUES(%) DATE(3) DATE
------------- ------------- -------------- --------------
<S> <C> <C> <C> <C>
Industrial Tenants(1):
Mattel, Inc........... $ 1,556,321 4.04 May 1990 October 2000
Festival Markets...... 640,348 1.66 May 1991 May 2001
Allen-
Bradley/Rockwell..... 639,432 1.66 May 1992 April 1998
Cannon Equipment...... 592,548 1.54 August 1995 July 2003
MSAS Cargo
International Inc.... 553,934 1.44 September 1994 August 2004
Ace Medical........... 553,300 1.44 April 1995 April 2006
Furon, Inc. .......... 543,180 1.41 February 1990 July 2005
Rank Video Services... 476,358 1.24 October 1984 May 1998
Household Finance
Corporation.......... 319,199 0.83 June 1993 November 2003
Extron................ 302,930 0.79 February 1995 January 2005
----------- -----
Total............... $ 6,177,550 16.05
=========== =====
</TABLE>
- --------
(1) Table excludes the lease with LACTC (total annual base rent of $449,935)
which expired on April 30, 1996, the lease with Cerplex Group, Inc./Incert
(total annual base rent of $337,530) which expired on June 30, 1996 and
the lease with Key Bank of Washington (total annual base rent of $667,587)
which expired on December 31, 1996.
(2) Determined in accordance with GAAP.
(3) Represents date of first relationship between tenant and the Kilroy Group.
(4) Includes Hughes Space & Communication's leases at Kilroy Airport Center at
El Segundo of (i) 96,133 and 11,556 net rentable square feet which expire
in October 2001, (ii) 286,151 net rentable square feet which expires in
July 2004 and (iii) 100,978 net rentable square feet which expires in
January 1999.
(footnotes continued on next page)
83
<PAGE>
(5) Tenant annual base rental revenue for Hughes Space & Communications gives
pro forma effect to the recent extension of the tenant lease with respect
to 96,133 rentable square feet of office space located at 2250 E. Imperial
Highway (along with 11,556 rentable square feet located at 2240 E.
Imperial Highway) as if such lease renewal had occurred on January 1,
1995. See "Business and Properties--Kilroy LAX."
(6) Tenant executed leases during 1995 representing approximately 44,825
square feet effective on February 15, 1996. Base rental revenue figure
included on a contract basis.
(7) The term of this lease has been extended to 2007 and, effective February
1, 1997, annual base rent under this lease will be $672,000.
OFFICE PROPERTIES
All but two of the Office Properties are Class A office buildings. Each of
the Kilroy LAX, Kilroy Long Beach and SeaTac (each as defined) Office
Properties was designed and developed to above-standard specifications to
accommodate the long-term needs of tenants and include features such as extra-
floor loading capacity and extra-high ceilings. Each of the Kilroy LAX, Kilroy
Long Beach and SeaTac Office Properties also was designed with an emphasis on
long-term operating efficiency and tenant comfort and includes above-standard
climate controls, on-site management and security, covered parking, heliports
and retail services, all in professionally landscaped environments. In
addition, each of the Kilroy LAX and Kilroy Long Beach Office Properties
offers tenants redundant telecommunications capability and utility leads. The
Office Properties range in size from two to 12 stories and are easily
accessible from major highways and all but two (Westlake Plaza and the Office
Property located at the La Palma Business Center) are easily accessible from
major airports. Management believes that as a result of these factors the
Office Properties in the Southern California Area achieve among the highest
rent, occupancy and tenant retention rates when compared to other properties
within their respective submarkets and in neighboring submarkets. Management
believes that the location, quality of construction and amenities at the
complexes as well as the Company's reputation for providing a high level of
tenant service have enabled the Company to attract and retain a national
tenant base.
Kilroy LAX. The Company developed, owns, leases and manages three Office
Properties at Kilroy Airport Center at El Segundo ("Kilroy LAX"), a Class A
high-rise, multi-tenant corporate office complex situated in what the Company
considers to be the premier location in El Segundo immediately adjacent to Los
Angeles International Airport ("LAX"), the new light rail system servicing Los
Angeles County and the new I-105 Freeway with a freeway off-ramp and freeway
on-ramp providing immediate access to and from the project's parking
facilities. Kilroy LAX was built in 1983 to high quality specifications to
address the anticipated demands of the submarket's aerospace and high
technology tenants. The Company believes Kilroy LAX has the premier location
in the El Segundo office submarket for a number of reasons, including:
(i) unobstructed views of LAX, West Los Angeles and Downtown Los Angeles; (ii)
excellent access to LAX, the new I-105 Freeway and the new light rail system;
(iii) close proximity to corporate office users including Hughes Space &
Communications and its satellite manufacturing facility, and other related
enterprises such as DirectTV; and (iv) for tenants with their names on the
Property, visibility to freeway and airline travelers.
The complex is comprised of two 12-story towers and a 13-level parking
structure with two floors of office space on top, encompassing an aggregate of
approximately 701,000 rentable square feet, of which 93.3% was leased as of
September 30, 1996. Kilroy LAX features fiber optic/telecommunications dual
redundancy (one of the few properties in Southern California so equipped) and
multiple lead-lines for both water and power, thereby mitigating the risk of
temporary loss of such services to the facility. The Property was designed and
constructed with above-standard floor loadings and floor-to-ceiling heights to
accommodate the weight and raised floors requirements of computer and other
equipment. The facility is climate controlled in smaller areas which, while
increasing tenant comfort, allows for separate thermostat controls for areas
housing temperature sensitive equipment and reduces costs for after-hour
operations. The facility was designed toward tenant efficiency and convenience
and features an above-standard ratio of elevators to rentable square feet and
provides 24-hour on-site security and management, private dual heliports,
shuttle service to LAX and on-site retail, banking and dining facilities. In
addition, the two 12-story towers are joined by an atrium and are
professionally landscaped creating a pleasant environment. In addition, the
facility has been recognized by the local utility for its energy efficient
heating, ventilating and air conditioning systems which reduce operating costs
for both the Company and its
84
<PAGE>
tenants. Management believes because of these and other high quality features,
Kilroy LAX continues to attract long-term major corporate tenants at rates
above those offered by other facilities in the El Segundo and neighboring
submarkets. The occupancy rates for Kilroy LAX as of the years ended December
31, 1993 through 1995, and the nine-month period ended September 30, 1996,
were 90.8%, 91.6%, 92.1% and 93.3%, respectively.
Major tenants of the facility include Hughes Space & Communications (the
Company's largest tenant), the Federal Aviation Administration and Realtime
Associates. Hughes Space & Communications has been a tenant at Kilroy LAX
since its opening and, over the past five years, has consolidated operations
into its owned facilities in El Segundo (which includes its satellite
manufacturing facility) and into leased facilities at Kilroy LAX which also
serves as its headquarters. In addition, Hughes Space & Communications has
invested substantial amounts in tenant improvements, including approximately
$3.3 million during the year ended December 31, 1994 and $23.5 million since
1984, and repeatedly has renewed leases at the facilities, including one lease
for approximately 101,000 rentable square feet which has been renewed twice.
Hughes Space and Communications is a major employer and owner of technical
facilities in El Segundo, including facilities for the development of
satellite technology and its applications, such as DirecTV.
Because the book value of the Office Property located at 2240 E. Imperial
Highway will be in excess of 10% of the Company's total assets, additional
information regarding this Property is presented below. The information
presented below gives pro forma effect to the recent extension of the tenant
lease with Hughes Space & Communications with respect to this Office Property
as if such lease renewal had occurred on January 1, 1995.
The Office Property located at 2240 E. Imperial Highway had an occupancy
rate of 100.0% for each of the years ended December 31, 1991 through 1995. As
of September 30, 1996, Hughes Space & Communications occupied approximately
94.6% of the Property's net rentable square feet under two leases. Under the
principal lease for this space, Hughes Space & Communications commenced
occupancy of 101,000 square feet on August 11, 1986 and renewed the lease on
February 1, 1989 and again on June 1, 1994. In connection with the latter
renewal, Hughes made a one time payment of $4,000,000 to the Company in
consideration of a lease amendment to relieve Hughes Space & Communications of
the obligation to remove certain tenant improvements upon termination of the
lease. The current lease term under this lease expires on January 31, 1999,
subject to a five-year option to renew at fair market value, but not less than
$15.84 per annum per net rentable square foot, on a triple net basis. Hughes
Space & Communications also leases 11,556 rentable square feet (along with the
96,133 rentable square feet located at 2250 E. Imperial Highway) under a
second lease which expires October 31, 2001, at an annualized triple net base
rental rate of $14.04 and, for the first year of the lease term, the tenant's
allocable share of operating costs shall not exceed $7.32 per rentable square
foot. The lease also is subject to a five-year option to renew at fair market
value, adjusted bi-annually for CPI adjusted increases in base rent. The total
annual rental income per net rentable square foot for the years ended
December 31, 1991 through December 31, 1995 was $23.17, $24.42, $25.22, $17.15
and $11.83, respectively.
85
<PAGE>
The following table sets forth for such Property for each of the ten years
following the date of Offering (i) the number of tenants whose leases will
expire, (ii) the total net rentable square feet covered by such leases,
(iii) the percentage of total leased net rentable square feet represented by
such leases, (iv) the annual base rent represented by such leases and (v) the
average annual rent per net rentable square foot represented by such leases.
<TABLE>
<CAPTION>
PERCENTAGE OF
TOTAL LEASED AVERAGE ANNUAL
NET RENTABLE RENT PER
NET RENTABLE SQUARE FEET NET RENTABLE
YEAR OF NUMBER OF SQUARE FOOTAGE REPRESENTED SQUARE FOOT
LEASE LEASES SUBJECT TO BY EXPIRING ANNUAL BASE RENT UNDER REPRESENTED BY
EXPIRATION EXPIRING EXPIRING LEASES LEASES(%) EXPIRING LEASES ($)(1) EXPIRING LEASES($)
---------- --------- --------------- ------------- ---------------------- ------------------
<S> <C> <C> <C> <C> <C>
10/31/96-12/31/96....... 0 -- -- -- --
1997.................... 0 -- -- -- --
1998.................... 0 -- -- -- --
1999.................... 1(2) 100,978 86.4 $1,085,716 $10.75
2000.................... 0 --
2001.................... 2(3) 15,898 13.6 196,670 12.37
2002.................... 0 -- -- -- --
2003.................... 0 -- -- -- --
2004.................... 0 -- -- -- --
2005.................... 0 -- -- -- --
--- ------- ----- ----------
Totals.............. 3 116,876(4) 100.0 $1,282,386 $10.97
=== ======= ===== ==========
</TABLE>
- --------
(1) Determined based upon aggregate base rent to be received over the term
divided by the term in months multiplied by 12, including all leases dated
on or before September 30, 1996.
(2) The terms of this lease are described in the text preceding this table.
(3) The terms of a lease representing 11,556 rentable square feet are
described in the text preceding this table.
(4) The aggregate square footage reflected in each of the respective leases
differs from the actual aggregate square footage for this Property of
118,933 as shown on the table under the caption "The Office and Industrial
Properties." Subsequent to the execution of the leases, the Property was
remeasured at a larger aggregate number of square feet than is reflected
in the executed leases.
The Company's tax basis in the Property for federal income tax purposes as
of December 31, 1995 was approximately $4.1 million (net of accumulated
depreciation and reductions in depreciable basis). The Property is depreciated
using the modified accelerated cost recovery system straight-line method,
based on an estimated useful life ranging from 31 1/2 years to 39 years,
depending upon the date of certain capitalized improvements to the Property.
For the year ended December 31, 1995, the estimated average depreciation rate
for this Property under the modified accelerated cost recovery system was
4.3%. For the 12-month period ending September 30, 1996, the Company was
assessed property taxes on this Property at an effective annual rate of
approximately 1.0%. Property taxes on this Property for the 12-month period
ending September 30, 1996 totaled approximately $130,000. Management does not
believe that any capital improvements made during the 12-month period
immediately following the Offering should result in an increase in annual
property taxes.
Because the gross revenues for the Office Property located at 2250 E.
Imperial Highway for the year ended December 31, 1995 were in excess of 10% of
the aggregate gross revenues for all of the Properties, additional information
regarding this Property is presented below. The information presented below
gives pro forma effect to the recent extension of the tenant lease with Hughes
Space & Communications with respect to this Office Property as if such lease
renewal had occurred on January 1, 1995.
The Office Property located at 2250 E. Imperial Highway had an occupancy
rate of 84.0%, 82.5%, 77.8%, 79.8% and 80.9% as of the years ended December
31, 1991 through 1995, respectively. As of September 30, 1996, Hughes Space &
Communications occupied 33% of the Property's net rentable square feet. The
Property's other tenants include companies engaged in the communications,
technology, transportation and healthcare industries. Hughes Space &
Communications commenced occupancy of 96,133 rentable square feet on
86
<PAGE>
November 1, 1986 and has entered into an agreement to renew this space (along
with the 11,556 square feet located at 2240 E. Imperial Highway) through
October 31, 2001, at a triple net annual base rental rate of $14.04 per square
foot and, for the first year of the lease term, the tenant's allocable share
of operating costs shall not exceed $7.32 per rentable square foot. The lease
also is subject to a five-year option to renew at fair market value, adjusted
bi-annually for CPI increases in base rent. The total annual rental income per
net rentable square foot for the years ended December 31, 1991 through
December 31, 1995 was $17.82, $18.73, $19.62, $18.89 and $18.86, respectively.
The following table sets forth for such Property for each of the ten years
following the date of the Offering (i) the number of tenants whose leases will
expire, (ii) the total net rentable square feet covered by such leases, (iii)
the percentage of total leased net rentable square feet represented by such
leases, (iv) the annual base rent represented by such leases and (v) the
average annual rent per net rentable square foot represented by such leases.
<TABLE>
<CAPTION>
PERCENTAGE OF
TOTAL LEASED AVERAGE ANNUAL
NET RENTABLE RENT PER
NET RENTABLE SQUARE FEET NET RENTABLE
NUMBER OF SQUARE FOOTAGE REPRESENTED ANNUAL BASE SQUARE FOOT
LEASES SUBJECT TO BY EXPIRING RENT UNDER REPRESENTED BY
YEAR OF LEASE EXPIRATION EXPIRING EXPIRING LEASES LEASES(%)(1) EXPIRING LEASES($)(2) EXPIRING LEASES($)
- ------------------------ --------- --------------- ------------- --------------------- ------------------
<S> <C> <C> <C> <C> <C>
10/1/96-12/31/96........ 1 1,317 0.6 $ 24,496 $18.60
1997.................... 3 4,385 1.9 83,025 18.93
1998.................... 6 23,033 10.1 464,705 20.18
1999.................... 4 29,148 12.7 695,821 23.87
2000.................... 2 18,201 8.0 302,853 16.64
2001.................... 3 112,715 49.3 1,653,035 14.67
2002.................... 1 18,517 8.1 456,220 24.64
2003.................... 0 -- -- -- --
2004.................... 2 21,418 9.3 485,244 22.66
2005.................... 0 -- -- -- --
--- ------- ----- ----------
Totals.............. 22 228,734 100.0 $4,165,399 $18.21
=== ======= ===== ==========
</TABLE>
- --------
(1) Excludes all space vacant as of December 31, 1995 unless a lease for a
replacement tenant has been dated on or before September 30, 1996.
(2) Determined based upon aggregate base rent to be received over the term
divided by the term in months multiplied by 12, including all leases dated
on or before September 30, 1996. Certain leases became effective
subsequent to September 30, 1996.
The Company's tax basis in the Property for federal income tax purposes as
of December 31, 1995 was approximately $2.0 million (net of accumulated
depreciation and reductions in depreciable basis), and was fully depreciated
for federal tax purposes. For the 12-month period ending September 30, 1996,
the Company was assessed property taxes on this Property at an effective
annual rate of approximately 1.0%. Property taxes on this Property for the 12-
month period ending September 30, 1996 totaled approximately $240,000.
Management does not believe that any capital improvements made during the 12-
month period immediately following the Offering should result in an increase
in annual property taxes.
Because the 1995 gross revenues for the Office Property located at 2260 E.
Imperial Highway were in excess of 10% of the aggregate gross revenues for all
of the Properties, additional information regarding this Property is presented
below.
The Office Property located at 2260 E. Imperial Highway had an occupancy
rate of 100.0% for the years ended December 31, 1991 through 1995. As of
September 30, 1996, Hughes Space & Communications occupied 100.0% of the
Property's net rentable square feet. Hughes Space & Communications commenced
occupancy of the entire building on August 1, 1984. This lease runs through
July 31, 2004 with CPI adjusted increases in base rent every two years. The
next CPI adjustment is scheduled to occur on August 1, 1998 and provides for
an increase in base rent to the extent that such CPI adjustment exceeds a
minimum floor of 1.86% compounded
87
<PAGE>
annually. The remaining CPI adjustments scheduled for August 1, 2000 and
August 1, 2002, respectively, provide for similar increases to the extent that
the CPI adjustment exceeds a minimum floor of 3% compounded annually. The
total annual rental income per net rentable square foot was $25.35, $26.16,
$26.66, $24.59 and $24.59 for the years ended December 31, 1991 through
December 31, 1995, respectively. The following table sets forth for such
Property for each of the ten years following the date of Offering (i) the
number of tenants whose leases will expire, (ii) the total net rentable square
feet covered by such leases, (iii) the percentage of total leased net rentable
square feet represented by such leases, (iv) the annual base rent represented
by such leases and (v) the average annual rent per net rentable square foot
represented by such leases.
<TABLE>
<CAPTION>
PERCENTAGE OF
TOTAL LEASED AVERAGE ANNUAL
NET RENTABLE RENT PER
NET RENTABLE SQUARE FEET NET RENTABLE
NUMBER OF SQUARE FOOTAGE REPRESENTED ANNUAL BASE SQUARE FOOT
LEASES SUBJECT TO BY EXPIRING RENT UNDER REPRESENTED BY
YEAR OF LEASE EXPIRATION EXPIRING EXPIRING LEASES LEASES(%) EXPIRING LEASES($)(1) EXPIRING LEASES($)
- ------------------------ --------- --------------- ------------- --------------------- ------------------
<S> <C> <C> <C> <C> <C>
10/01/96-12/31/96....... 0 -- -- $ -- $ --
1997.................... 0 -- -- -- --
1998.................... 0 -- -- -- --
1999.................... 0 -- -- -- --
2000.................... 0 -- -- -- --
2001.................... 0 -- -- -- --
2002.................... 0 -- -- -- --
2003.................... 0 -- -- -- --
2004.................... 1(2) 286,151 100.0 $7,160,207 $25.02
2005.................... 0 -- -- -- --
--- ------- ----- ----------
Totals.............. 1 286,151(3) 100.0 $7,160,207 $25.02
=== ======= ===== ==========
</TABLE>
- --------
(1) Determined based upon aggregate base rent to be received over the term
divided by the term in months multiplied by 12, including all leases dated
on or before September 30, 1996.
(2) The terms of this lease are described in the text preceding this table.
(3) The square footage reflected in the lease differs from the actual square
footage for this Property of 291,187 as shown on the table under the
caption "The Office and Industrial Properties." Subsequent to the
execution of the lease, the Property was remeasured at a larger aggregate
number of square feet than is reflected in the executed lease.
The Company's tax basis in the Property for federal income tax purposes as
of December 31, 1995 was approximately $2.0 million (net of accumulated
depreciation and reductions in depreciable basis), and was fully depreciated
for federal tax purposes. For the 12-month period ending September 30, 1996,
the Company was assessed property taxes on this Property at an effective
annual rate of approximately 1.0%. Property taxes on this Property for the 12-
month period ending September 30, 1996 totaled approximately $275,000.
Management does not believe that any capital improvements made during the 12-
month period immediately following the Offering should result in an increase
in annual property taxes.
Kilroy Long Beach. The Company developed, owns, leases and manages the three
Office Properties which comprise Phase II of Kilroy Airport Center Long Beach
("Kilroy Long Beach Phase II"), part of a planned four-phase, 53-acre Class A
corporate office headquarters, business park and retail and entertainment
center strategically located adjacent to the San Diego freeway (Interstate
405, the major coastal north-south highway in Southern California between Los
Angeles and Orange Counties) (the "I-405 Freeway") and immediately adjacent to
the Long Beach Airport. The Company has sole development rights for the
remaining 24 developable acres. Upon consummation of the Offering, the Company
also will own the two office buildings comprising Kilroy Long Beach Phase I
("Kilroy Long Beach Phase I") which were developed by the Company and which
have been leased and managed by the Company since their inception. See "--
Acquisition Properties--Kilroy Long Beach Phase I." Kilroy Long Beach Phase II
includes an eight-story and a six-story office building, and a multi-level
parking structure with retail facilities on the ground floor, encompassing an
aggregate of approximately 395,000 net rentable square feet, of which 88.4%
was leased as of September 30, 1996. The
88
<PAGE>
facility is the only GTE SmartPark in Los Angeles County and offers tenants an
array of advanced telecommunications functions through a pre-laid fiber optic
network, emergency backup loop and ISDN interfaces. The facility also includes
state-of-the-art mechanical and electrical systems designed to accommodate the
highest tenant demands including above-standard floor-to-ceiling heights and
floor loading and four high-speed passenger elevators. Each of the office
structures offers efficient 28,000 square foot floors. Other amenities include
a spacious lobby with an atrium, and a central courtyard with a fountain and
pedestrian arcade. The facility also features 24-hour on-site security and
management, a fitness center, group conference facilities, helipad facilities,
and various retail and business services including banking facilities, dining
facilities and printer services. The occupancy rates for Kilroy Long Beach
Phase II as of the years ended December 31, 1993 through 1995, and the nine
month period ended September 30, 1996, were 64.8%, 78.7%, 76.5% and 88.3%,
respectively. Major tenants include AIG Claim Services, Inc., Assistance in
Marketing, Inc., CompuServe, Inc., Employer's Health Insurance, Co., GTE
Directories Sales Corporation, Great Northern Insured Annuities Corp., Great
Western Bank, HealthNet, Mutual of America Life Insurance Company, North
American Title Company, The Prudential Insurance Company of America, R.L. Polk
& Company, SCAN Health Plan, Senn-Delaney Leadership Consulting Group, Inc.,
20th Century Industries, UniCare Financial Corporation, Unihealth and Zelda
Fay Walls.
Kilroy Airport Center Long Beach was developed in response to a desire by
the City of Long Beach to promote development in the airport area. Phase I of
the project, two office buildings encompassing approximately 225,000 rentable
square feet, was developed by the Company in 1987 and was sold in 1993. The
Company has entered into an agreement to reacquire the Phase I Office
Properties. As of September 30, 1996 the Phase I Office Properties were 96.6%
leased to eight tenants with total annual rental income per leased net
rentable square foot of $15.67 (calculated on the basis of base rent of signed
leases at September 30, 1996, adjusted for contractual increases in base rent
in effect during the 12-month period ending September 30, 1996). Major tenants
include McDonnell Douglas Corporation, Olympus America, Inc. and Devry, Inc.
See "--Acquisition Properties--Kilroy Long Beach Phase I." The Company has
overseen and continues to oversee all leasing and management of Phase I.
Kilroy Long Beach Phase II was developed by the Company in 1989/1990 and
encompasses an aggregate of approximately 395,000 net rentable square feet.
Phases III and IV are planned for future development. See "--Development,
Leasing and Management Activities--Kilroy Airport Center Long Beach."
Kilroy Airport Center Long Beach is subject to three long-term ground leases
under which the Company is ground lessee (assuming the assignment to the
Company of the approximately 14-acre parcel in connection with the acquisition
of Kilroy Long Beach Phase I). The City of Long Beach is the ground lessor
with respect to Kilroy Long Beach Phases I through III and the Board of Water
Commissioners of the City of Long Beach, acting on behalf of the City of Long
Beach, is the ground lessor with respect to Kilroy Long Beach Phase IV. The
basic term under each of the ground leases expires on July 17, 2035. Primary
rent under the leases for Kilroy Long Beach Phases I, II, III and IV is
currently approximately $338,000 per year, $295,000 per year, $75,000 per year
and $77,000 per year, respectively, with such amounts adjusted periodically to
take account of changes in the fair market rental value of the land underlying
each lease.
Because the book value of the Office Property located at 3780 Kilroy Airport
Way will be in excess of 10% of the Company's total assets, additional
information regarding this Property is presented below.
The Office Property located at 3780 Kilroy Airport Way had an occupancy rate
of 70.2%, 70.5%, 69.1%, 78.6% and 63.6% as of the years ended December 31,
1991 through 1995, respectively. As of September 30, 1996, SCAN Health Plan, a
group health insurer, and Zelda Fay Walls, an operator of executive office
suites, occupied approximately 20.4% and 12.7%, respectively, of the
Property's net rentable square feet. The Property's other tenants include
companies engaged in the insurance, healthcare, finance, high technology, law
and accounting industries. Base rent under the SCAN Health Plan lease is
$941,325 per year. The lease expires on August 31, 2000, subject to two
successive five-year options to renew. Base rent under the Zelda Fay Walls
lease
89
<PAGE>
is currently $823,896 per year although the tenant has been paying only
approximately $640,200 since August 1993 and the balance is expensed quarterly
by the Company as an increase to its bad debt reserve. Effective February 1,
1997, annual base rent under the lease will be $672,000, and the term of the
lease has been extended to 2007, subject to a five-year option to renew. The
total annual rental income per net rentable square foot for the years ended
December 31, 1991 through 1995 was $13.02, $17.53, $19.76, $20.54 and $18.55,
respectively. The following table sets forth for such Property for each of the
ten years following the date of Offering (i) the number of tenants whose
leases will expire, (ii) the total net rentable square feet covered by such
leases, (iii) the percentage of total leased net rentable square feet
represented by such leases, (iv) the annual base rent represented by such
leases and (v) the average annual rent per net rentable square foot
represented by such leases.
<TABLE>
<CAPTION>
PERCENTAGE OF
TOTAL LEASED AVERAGE ANNUAL
NET RENTABLE RENT PER
NET RENTABLE SQUARE FEET NET RENTABLE
NUMBER OF SQUARE FOOTAGE REPRESENTED ANNUAL BASE SQUARE FOOT
LEASES SUBJECT TO BY EXPIRING RENT UNDER REPRESENTED BY
YEAR OF LEASE EXPIRATION EXPIRING EXPIRING LEASES LEASES(%)(1) EXPIRING LEASES($)(2) EXPIRING LEASES($)
- ------------------------ --------- --------------- ------------- --------------------- ------------------
<S> <C> <C> <C> <C> <C>
10/1/96-12/31/96........ -- -- -- $ -- $ --
1997.................... 4 22,469 11.5 532,872 23.72
1998.................... 1 2,088 1.1 47,606 22.80
1999.................... 2 4,339 2.2 89,709 20,68
2000.................... 7 74,093 37.8 1,816,896 24.52
2001.................... 5 28,251 14.4 638,222 22.59
2002.................... -- -- -- -- --
2003.................... 1 9,439 4.8 209,299 22.17
2004.................... 1 3,922 2.0 85,656 21.84
2005 and beyond......... 2 51,290 26.2 1,077,090 21.00
--- ------- ------ ----------
Totals.............. 23 195,891 100.00 $4,497,350 $22.96
=== ======= ====== ==========
</TABLE>
- --------
(1) Excludes all space vacant as of December 31, 1995 unless a lease for a
replacement tenant has been dated on or before September 30, 1996.
(2) Determined based upon aggregate base rent to be received over the term
divided by the term in months multiplied by 12, including all leases dated
on or before September 30, 1996. Certain leases became effective
subsequent to September 30, 1996.
The Company's tax basis in the Property for federal income tax purposes was
$11.4 million (net of accumulated depreciation) as of December 31, 1995. The
Property is depreciated using the modified accelerated cost recovery system
straight-line method, based on an estimated useful life ranging from 31 1/2
years to 39 years, depending upon the date of certain capitalized improvements
to the Property. For the year ended December 31, 1995, the estimated average
depreciation rate for this Property under the modified accelerated cost
recovery system was 3.4%. For the 12-month period ending September 30, 1996,
the Company was assessed property taxes on this Property at an effective
annual rate of approximately 1.2%. Property taxes on this Property for the
12-month period year ending September 30, 1996 totaled $162,000. Management
does not believe that any capital improvements made during the 12-month period
immediately following the Offering should result in an increase in annual
property taxes.
SeaTac Office Center at Seattle-Tacoma International Airport. The Kilroy
Group developed and operates the SeaTac Office Center ("SeaTac"), south of
Seattle in SeaTac, Washington, a Class A office development in the Southend
submarket of the Puget Sound region. SeaTac is comprised of two 12-story
towers (constructed in 1977 and 1980, respectively) and a 4-level office and
garage structure with two floors of office space on top (constructed in 1980),
all with views of the Olympic and Coastal mountain ranges. The site is located
directly across from the Seattle-Tacoma International Airport. The facility
currently contains an aggregate of approximately 530,000 square feet of office
space. Current zoning permits up to an additional 500,000 square feet of
development. The facility features 24-hour on-site security and management,
parking for over 1,900 vehicles, computer training and consultation, travel
agencies and a 24-hour restaurant. As of September 30, 1996, SeaTac had
approximately 308,000 rentable square feet of available office space. Major
tenants include First
90
<PAGE>
Nationwide Mortgage Corporation, Lynden, Inc., National Chemsearch, Northwest
Airlines, Inc., Rayonier, Inc., Seattle-First National Bank and Transamerica
Financial Services, Inc.
SeaTac is situated on an approximately 17-acre site subject to two long-term
ground leases and an airspace lease. The initial term of the ground leases
runs through December 31, 2032, and may be extended for an additional period
of thirty years. Payments under the ground leases are subject to adjustment
for increases in the CPI every five years. Payments under the airspace lease
are made monthly. Aggregate payments under the two ground leases and the
airspace lease for the year ended December 31, 1995 totaled approximately
$285,000. As of September 30, 1996, the SeaTac Properties were encumbered by a
first mortgage loan having an outstanding principal balance of $20,162,000.
The loan bears interest at a rate of 9.75% per year and is scheduled to mature
on May 15, 2001. See "Note 4. Debt" to the Combined Financial Statements of
the Kilroy Group.
INDUSTRIAL PROPERTIES
Like the Office Properties, the Industrial Properties developed by the
Company (the Industrial Properties other than the Acquisition Properties) were
designed and developed to provide above-standard quality and meet the long-
term needs of tenants. The Company was among the first Southern California
developers to air-condition its Industrial Properties, increasing each
facility's multidimensional use while providing environments for increased
tenant operating efficiency and comfort. While most of the buildings are
occupied by a single tenant, the Industrial Properties developed by the
Company were designed for multi-tenant operations and can be reconfigured for
such use. The Industrial Properties, all but one of which are located in
Southern California, are primarily comprised of single-story, tilt-up concrete
buildings ranging in size from approximately 57,000 to 277,000 square feet.
The Industrial Properties feature high-tech assembly areas and supporting
office space for management and administrative functions.
The Industrial Property leases are written on a triple net basis with
initial terms of three to eleven years and options to renew for up to an
additional five years at the then current fair market value. The leases
generally provide for rent increases based on the applicable regional CPI or
contain specific contractual increases. The leases do not contain purchase
options.
Certain of the Industrial Properties can support additional development and
the Company presently is planning to develop in the next two years, subject to
substantial pre-leasing, approximately 105,000 square feet of additional
leasable area. The Company anticipates that any such development would be
funded with amounts available under the Credit Facility. There can be no
assurance, however, that the Company will be able to successfully develop any
of the Industrial Properties, or obtain financing for any such development on
terms favorable to the Company. See "Risk Factors--Real Estate Financing
Risks" and "--No Limitation on Debt."
DEVELOPMENT, LEASING AND MANAGEMENT ACTIVITIES
Since 1947, the Company and its affiliates have developed millions of square
feet of office and industrial space, including high technology facilities,
primarily located in Southern California, for its own portfolio and for third
parties. Development activities include site selection, land entitlement,
project design and construction, build-to-suit activities and tenant
renovations. The Company has successfully developed numerous sophisticated
development projects for some of the nation's most prominent corporations both
in Southern California and around the country. The Company's extensive
experience has enabled it to form key alliances with major corporate tenants,
municipalities and landowners in Southern California. The Company's
relationships with tenants and users has enabled it to receive fees in
connection with its role as developer of various projects, or, in the case of
Kilroy Long Beach, to develop the land for its own account where such
development will result in a favorable risk-adjusted return on investment. In
connection with the Formation Transactions, the Company will succeed to the
Kilroy Group's rights in and to the Development Properties.
The Company or the Operating Partnership will be the manager of the
Properties and may provide building management services for independent
building owners for terms that vary in length but which generally provide
91
<PAGE>
for management fees of 4% to 5% of collected revenue and may also provide for
reimbursement of expenses. The Services Company will provide development
services for the Company and the Operating Partnership, as well as for third
parties, at market rates.
The following is a description of the Development Properties as presently
contemplated.
Kilroy Airport Center Long Beach. In conjunction with the Company's role as
master ground lessee of Kilroy Long Beach, the Company manages all ongoing
leasing and development activities for the four-phase, approximately 53-acre
office and retail development project, including sole development rights to
the approximately 24 remaining developable acres. To date the Company has
developed Phases I and II. See "--Office Properties--Kilroy Airport Center
Long Beach" and "Acquisition Properties." Current development activities are
focused on Phase III of the project ("Kilroy Long Beach Phase III") which will
be developed and owned by the Company. Kilroy Long Beach Phase III presently
is contemplated to initially include a seven-story office building with
approximately 186,000 rentable square feet and a five-story office building
with approximately 132,000 rentable square feet. In addition, Kilroy Long
Beach Phase III may be developed, subject to site plan approval by the City of
Long Beach, to include an additional office building with up to 150,000
rentable square feet of space. The Company is currently in discussions with
several prospective tenants for office space presently planned to be included
in Kilroy Long Beach Phase III. Development of Kilroy Long Beach Phase III is
subject to substantial predevelopment leasing activity and, therefore, the
timing for the commencement of development is uncertain.
Kilroy Long Beach also is planned to include Phase IV ("Kilroy Long Beach
Phase IV"), which will be developed and owned by the Company. Kilroy Long
Beach Phase IV presently is contemplated to include an aggregate of up to
550,000 rentable square feet of office and retail space including high quality
retail and specialty shops, sit-down and convenience restaurants and, subject
to site-plan approval by the City of Long Beach, a multitheater and virtual
reality entertainment center. Development of Kilroy Long Beach Phase IV is
subject to substantial predevelopment leasing activity and, therefore, the
timing for the commencement of development is uncertain.
To date the Company has invested approximately $8.8 million in
infrastructure improvements which are in place for Kilroy Long Beach Phases
III and IV and has available an additional approximately $2.6 million of
revenue bond proceeds held by the City of Long Beach which the Company
believes is sufficient to provide for further traffic mitigation improvements,
if any, which may be required by the City in connection with the future
development. Because of the over 900,000 aggregate rentable square feet
entitled at Kilroy Long Beach Phases III and IV, and the significant
infrastructure improvements already in place, the Company believes that Kilroy
Long Beach offers substantial opportunity for tenant expansion from a location
servicing both Los Angeles and Orange Counties. See "--Office Properties--
Kilroy Long Beach."
Kilroy Long Beach Phase III and Phase IV will be developed by the Company or
the Services Company for the benefit of the Company. Prior to the Formation
Transactions, the Kilroy Group and its affiliates acquired construction
materials at a cost of approximately $6.5 million in connection with the
development of Kilroy Long Beach Phase III. These construction materials will
not be contributed to the Company and the Company will have no obligation to
purchase the materials from the Kilroy Group or to in any way use the
materials in the development and completion of the project. Any decision on
the part of the Company to purchase the materials from the Kilroy Group in the
future will be determined by a majority of the Independent Directors.
Kilroy Airport Center Long Beach is subject to three long-term ground leases
under which the Company is ground lessee. The City of Long Beach is the ground
lessor with respect to Kilroy Long Beach Phase III and the Board of Water
Commissioners of the City of Long Beach, acting on behalf of the City of Long
Beach, is the ground lessor with respect to Kilroy Long Beach Phase IV. The
basic term under each of the ground leases expires on July 17, 2035. Primary
rent under the leases for Kilroy Long Beach Phases III and IV is currently
approximately $75,000 per year and $76,764 per year, respectively, with such
amounts adjusted periodically to take account of changes in the fair market
rental value of the land underlying each lease.
92
<PAGE>
Riverside Judicial Center. In a unique "public-private partnership" with the
City of Riverside Redevelopment Agency and the County of Riverside, the
Company has substantially completed for a fee a comprehensive master planning,
design, entitlement and development effort for the initial phase of a multi-
jurisdictional judicial center complex (the "Riverside Judicial Center") in
downtown Riverside that is expected to serve the entire greater Riverside and
San Bernardino area. Riverside is located approximately 56 miles east of Los
Angeles. The project currently includes a United States Bankruptcy Court and
administrative complexes. In addition, future development at the site may also
include a United States District Court. Construction of the Riverside Judicial
Center began in February 1996. Upon consummation of the Formation
Transactions, the Services Company will be assigned the Development Management
Agreement in connection with the project.
Northrop Grumman. The Company has been retained on a fee basis by Northrop
Grumman Corporation ("Northrop Grumman") to undertake a comprehensive, multi-
phased effort to analyze, entitle and manage the future reuse, planning,
entitlement, marketing and disposition of the approximately 200-acre property
located in the City of Pico Rivera, located approximately 13 miles east of Los
Angeles, which currently serves as Northrop Grumman's headquarters for
activities related to the U.S Air Force's B-2 "Stealth" Bomber Program. Early
stages of the project are underway, including the execution of a Memorandum of
Understanding with the City of Pico Rivera and a community outreach program
and submission of a conceptual reuse plan to the City of Pico Rivera. The
agreement runs through February 15, 1997.
ACQUISITION PROPERTIES
The Company has entered into agreements to acquire from non-affiliated third
parties four office properties and two industrial properties upon consummation
of the Offering, and will acquire one Industrial Property which was purchased
from a non-affiliated third party by KI on behalf of the Company prior to
consummation of the Offering and will be assigned to the Company upon
consummation of the Offering (collectively, the "Acquisition Properties"). In
the event one or more of the Acquisition Properties are purchased, the Company
expects to finance the acquisition cost (approximately $49.0 million in the
aggregate) with long-term borrowings under the $84.0 Million Loan, new
mortgage financing and/or the proceeds of the Offering. Acquisition of each of
these properties is subject to the satisfactory completion of certain closing
conditions. Although each of the acquisitions is expected to be completed
prior to or concurrent with consummation of the Offering there is no assurance
that any of the Acquisition Properties will be acquired. In addition,
concurrent with the Offering the Company will assume and repay out of the
Offering proceeds the indebtedness incurred by KI (on behalf of the Company)
to acquire the Industrial Property located at 12752-12822 Monarch Street,
Garden Grove, California (including expenses at closing). Unless otherwise
indicated, all calculations and information contained in this Prospectus give
pro forma effect to the acquisition of the Acquisition Properties.
Kilroy Long Beach Phase I. Two of the Acquisition Properties comprise Kilroy
Long Beach Phase I, a Class A office complex which includes a two-story office
building and a combination two/three-story office building encompassing an
aggregate of 225,000 rentable square feet. The Company has entered into an
agreement for the purchase of these Office Properties for an aggregate
purchase price of $23.5 million. Kilroy Long Beach Phase I was developed by
the Company in 1987 and sold by the Company to the current owner, a non-
affiliated third party, in 1993. The Company has overseen all leasing and
management activity at the property since its development. As of September 30,
1996, the properties were 96.6% leased to eight tenants at an average annual
base rent per net rentable square foot of $15.90. See "--Office Properties--
Kilroy Long Beach."
Thousand Oaks Office Property. Another Acquisition Property is a stand-alone
three-story Class A office property located in Thousand Oaks, California,
which encompasses approximately 81,100 rentable square feet and, as of
September 30, 1996, was 100.0% leased to eleven tenants at an average annual
base rent per net rentable square foot of $23.26. The Company has entered into
an agreement with a non-affiliated third party for the purchase of this Office
Property for a purchase price of $13.2 million.
93
<PAGE>
Anaheim Office and Industrial Properties. The Company also has entered into
an agreement to purchase one office and two industrial properties located at
4123-4175 East La Palma Avenue, Anaheim, California. The Office Property
consists of approximately 42,800 rentable square feet. At September 30, 1996,
the Office Property was 91.6% leased to 11 tenants at an average annual base
rent per net rentable square foot of $12.37. The Industrial Properties
comprise an aggregate of approximately 144,000 rentable square feet. At
September 30, 1996, each of the Industrial Properties was 100% leased with an
aggregate annual base rent per net rentable square foot of $3.74. Pursuant to
the terms of the purchase agreement, the Company will acquire all of these
properties for an aggregate purchase price of $12.2 million in cash.
12752-12822 Monarch Street, Garden Grove, California. On behalf of the
Company, in December 1996 KI purchased an industrial building located at
12752-12822 Monarch Street, Garden Grove, California. The building contains an
aggregate of approximately 277,000 rentable square feet. As of September 30,
1996, the property was 100% leased to five tenants at an average annual base
rent per net rentable square foot of $3.38. Pursuant to the terms of the
purchase agreement, the Property was acquired on behalf of the Company for a
purchase price of $9.1 million in cash and will be transferred to the Company
concurrent with the Offering. The Company will assume and repay out of the net
proceeds of the Offering the debt and expenses incurred by KI in connection
with the acquisition. The purchase was completed on behalf of the Company in
December 1996 because of the closing schedule required by the seller.
THE COMPANY'S SOUTHERN CALIFORNIA SUBMARKETS*
The Company believes that Los Angeles, Orange and Ventura Counties have been
and will continue to be excellent markets in which to own and operate Class A
office, industrial and retail property over the long term. The Company
believes that these counties are attractive for a number of reasons:
. These counties, together with Riverside and San Bernardino Counties,
comprise the second largest Consolidated Metropolitan Statistical Area
in the United States (the "Southern California Area") and rank as the
world's 12th largest economy;
. The continuing expansion of the service-producing sector of the economy;
. Employment sectors using Class A office and industrial properties
continue to expand with the Southern California Area's continuing growth
in foreign trade and diversification of industries;
. Since 1992 there has been virtually no increase in the Southern
California Area's inventory of office space; and
. The Southern California Area's demand for quality industrial space has
spurred new construction of industrial properties.
- --------
* The Company retained Robert Charles Lesser & Co. ("Lesser"), nationally
recognized experts in real estate consulting and urban economics, to study
the Company's Southern California submarkets, and the discussion of such
submarkets below and under the caption "Prospectus Summary--The Company's
Southern California Submarkets" is based upon Lesser's findings. While the
Company believes that these estimates of economic trends are reasonable,
there can be no assurance that these trends will in fact continue.
94
<PAGE>
As of December 31, 1995, the Southern California Area had a total population
of approximately 15.6 million people which accounted for approximately 5.9% of
the total U.S. population. Annual population growth in the Southern California
Area since 1990 has averaged approximately 217,000 persons. Of the
approximately 15.6 million people in the Southern California Area,
approximately 9.2 million persons lived in Los Angeles
County and approximately 2.6 million persons lived in Orange County. Annual
estimated growth in population in these counties over the next five years is
expected to be approximately 94,000 and 32,000 persons, respectively. The
following table presents the total population as a proportion of the United
States population for the Southern California Area and California for 1980,
1990 and 1995 and the estimated population for 2000 and 2010.
TOTAL POPULATION AS A PROPORTION OF THE UNITED STATES
SOUTHERN CALIFORNIA AREA AND CALIFORNIA
1980-2010
<TABLE>
<CAPTION>
1980 1990 1995 2000 2010
<S> <C> <C> <C> <C> <C>
California 10.50% 12.00% 12.30% 12.70% 13.50%
Southern California Area 3.65% 5.80% 5.90% 6.10% 6.30%
</TABLE>
Increasing Employment. The Southern California Area economy experienced
significant recessionary conditions during the 1990-1993 period. While the
Southern California Area lagged behind the rest of the country in entering the
recession, it also lagged in the economic recovery, in part due to the
cutbacks in the aerospace and defense industries. Employment growth recovered
in 1995. The passage of the North American Free Trade Agreement (NAFTA) in the
first quarter of 1995 and the General Agreement on Tariffs and Trade (GATT) in
the fourth quarter of 1994 provide optimism for new jobs and economic growth
for California. In 1995, the Southern California Area experienced a net
increase in employment with the addition of approximately 113,000 jobs,
representing an approximately 1.9% increase over the prior year. Of the total,
approximately 61,000 jobs (approximately 53.9% of the total) were created in
Los Angeles County. Employment in the Southern California Area is expected to
increase during 1996 through 1998, with an expected average increase of
approximately 125,000 to 135,000 jobs annually, representing an annual growth
rate of approximately 2.1%
95
<PAGE>
to 2.2%, nearly twice the expected national growth rate of 1.2%. The following
table shows the annual non-agricultural change in jobs for the Southern
California Area for the period from 1980 through 1995, and the expected change
in jobs for the period from 1996 through 1998.
ANNUAL NON-AGRICULTURAL EMPLOYMENT CHANGE
SOUTHERN CALIFORNIA AREA
1980-1998
ANNUAL CHANGE IN JOBS
Southern California Area
1980 -0-
1981 67,900
1982 (127,300)
1983 42,100
1984 222,700
1985 190,800
1986 188,500
1987 194,700
1988 189,300
1989 155,700
1990 90,600
1991 (173,000)
1992 (189,000)
1993 (102,500)
1994 29,200
1995 112,800
1996 124,448
1997 127,062
1998 135,907
Unemployment rate in the Southern California Area is moving downward from
its 1993 peak. For the U.S., the 1995 unemployment rate was approximately 6.2%
versus approximately 7.7% in California. By comparison, the 1993 unemployment
rates for the U.S. and California were approximately 6.9% and 9.2%,
respectively. While the unemployment rate in the Southern California Area has
been declining in the last couple of years, it probably will remain higher
than the unemployment rate for the nation as a whole. Within the Southern
California Area, the 1995 unemployment rates vary from a low of approximately
5.4% in Orange County to a high of approximately 8.7% in Riverside and San
Bernardino Counties. Los Angeles County's unemployment rate stood at
approximately 7.7%--the same as California's.
Diversification of Industries. Los Angeles and Orange Counties are widely
regarded as major centers for corporate and international business and the
growth of international trade through the Los Angeles-Long Beach port complex,
which presently ranks as the largest commercial port in the United States, is
driving the growth of business in the surrounding area. While the southern
coastal Los Angeles County market, including the El Segundo and Long Beach
submarkets, has historically been, and continues to be, associated with the
aerospace and defense industries, the downsizing of those industries has
resulted in the region becoming more diversified, with major corporations in
emerging industries such as telecommunications and healthcare. The Company
believes this diversity, which is reflected in the Company's tenant base, has
strengthened these submarkets in which the Properties are located.
Foreign Trade. The growth in the region's employment is attributable in part
to the increase in the volume of trade in the region's ports and airports,
which at the end of 1995 accounted for over 12.0% of the total trading volume
in the United States and which has grown at an average annual rate of
approximately 11.4% during the ten-year period ended in 1994 compared to an
approximately 8.0% growth rate nationally during the same period. In addition,
during 1995 the trading volume among the region's ports and airports increased
another approximately 16.0%, further securing the region's position as the
nation's leader in international trade activity.
96
<PAGE>
The following table shows the growth in the Los Angeles Customs District's
share of U.S. Trade for the period from 1972 through 1995.
LOS ANGELES CUSTOMS DISTRICT SHARE OF U.S. TRADE
1972-1995
1972 6%
1973 6%
1974 7%
1975 6%
1976 7%
1977 7%
1978 7%
1979 7%
1980 8%
1981 8%
1982 8%
1983 9%
1984 9%
1985 11%
1986 12%
1987 12%
1988 12%
1989 12%
1990 12%
1991 12%
1992 12%
1993 12%
1994 13%
1995 12%
Growing Service Economy. Over the last 15 years the composition of
employment in the Southern California Area has shifted, generally mirroring
national patterns. The goods-producing sector (mining, construction and
manufacturing) has declined from an approximately 28.7% share in 1980 to
approximately 20.1% in 1995. Within this sector, manufacturing accounted for
the entire decline. Correspondingly, the services-producing sector
(transportation, communications and utilities; wholesale and retail trade;
finance, insurance and real estate services; and government) has expanded from
approximately 71.3% of total employment in 1980 to approximately 79.9% in
1995. The following table presents the total employment growth from 1980 to
1995 for various employment sectors in the Southern California Area.
TOTAL NON-AGRICULTURAL EMPLOYMENT GROWTH BY INDUSTRY
SOUTHERN CALIFORNIA AREA
1980-1995
Mining -10.2
Construction 16.9
Manufacturing -260
Transportation and Public Utilities 38.2
Wholesale and Retail Trade 238.5
F.I.R.E. 32.9
Services 697.6
Government 138.5
Goods Producing Employment -253.3
Service Producing Employment 1145.7
97
<PAGE>
In particular, the entertainment industry now accounts for over 200,000 jobs
in the region. The following table shows the growth of tourism and
entertainment-related jobs for the period from 1972 through 1995.
GROWTH OF TOURISM AND ENTERTAINMENT-RELATED JOBS
SOUTHERN CALIFORNIA AREA
1972-1995
<TABLE>
<CAPTION>
YEAR Thousands of Jobs % Change
<S> <C> <C>
1972 110 ---
1973 120 9.1%
1974 120 0.0%
1975 123 2.5%
1976 130 5.7%
1977 140 7.7%
1978 145 3.6%
1979 150 3.4%
1980 148 -1.3%
1981 165 11.5%
1982 167 1.2%
1983 175 4.8%
1984 180 2.9%
1985 190 5.6%
1986 200 5.3%
1987 218 9.0%
1988 225 3.2%
1989 242 7.6%
1990 254 5.0%
1991 262 3.1%
1992 245 -6.5%
1993 251 2.4%
1994 263 4.8%
1995 297 12.9%
</TABLE>
In addition, recent developments in the Southern California Area aerospace
industry, such as additional orders for the McDonnell Douglas C-17 military
cargo jets and the announcements of new orders for McDonnell Douglas airliners
by commercial carriers and the hiring of up to 700 employees by TRW
Corporation, should help to stabilize related employment. The following table
shows the number of jobs in the aerospace/high technology industries in the
Southern California Area for the period from 1988 through 1995.
AEROSPACE/HIGH TECHNOLOGY EMPLOYMENT TRENDS
SOUTHERN CALIFORNIA AREA
1988-1995
<TABLE>
<CAPTION>
1988 1989 1990 1991 1992 1993 1994 1995
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Aerospace/High Technology 274.2 265.6 253.3 228.6 199 168.7 146.7 135
</TABLE>
98
<PAGE>
Office Submarkets. Total office space in the Southern California Area
amounts to approximately 229.2 million square feet. The Southern California
Area is the second largest office market in the country after the New York
City Metro Area (with over approximately 800 million square feet). Los Angeles
County comprises two-thirds of the metro office inventory, roughly 156.1
million square feet; Orange County accounts for approximately 54.2 million
square feet.
Vacancy rates in the office space market in the Southern California Area are
trending downward from a high in 1991 and 1992 of approximately 19.7% to a
level at the end of 1996 of approximately 16.7%. At September 30, 1996, the
vacancy rate for the Southern California Office Properties was approximately
6.9%. The following table shows the U.S. and Southern California Area office
vacancy rates for the period from 1988 through 1996.
OFFICE MARKET VACANCY TRENDS
SOUTHERN CALIFORNIA AREA VERSUS U.S.
1988-1996
VACANCY RATE
SOUTHERN
CALIFORNIA
U.S. AREA
------- ----------
1988 18.2% 0.0%
1989 18.6% 17.2%
1990 19.5% 0.0%
1991 19.4% 19.8%
1992 18.7% 19.7%
1993 17.0% 19.2%
1994 15.5% 18.3%
1995 14.1% 17.8%
1996 12.8% 16.7%
Net absorption in the Southern California Area in 1996 amounted to
approximately 3.1 million square feet, up from last year's total of 2.2
million and 1994's total of 2.7 million and nearly double 1993's total of
approximately 1.7 million square feet. By comparison, absorption in the
Southern California Area ranged from approximately 11.1 million to 11.7
million square feet during the mid- to late 1980s. Annual increases in
employment during the 1980s fluctuated between approximately 160,000 and
200,000 jobs per year, as opposed
99
<PAGE>
to job losses during 1991 to 1994. The following table shows the annual
absorption of office space in the Southern California Area for each of the
years from 1986 through 1996.
ANNUAL NET ABSORPTION OF OFFICE SPACE
SOUTHERN CALIFORNIA AREA
1986-1996
1986 11,116
1987 11,684
1988 11,687
1989 11,260
1990 7,635
1991 5,005
1992 3,301
1993 1,689
1994 2,657
1995 2,153
1996 3,140
No Additional Supply of Office Space. During the last five years new
construction of office space in the Southern California Area has decreased
substantially. The following table shows the additions in square footage to
the Southern California office market for each of the last eight years.
ADDITIONS TO THE SOUTHERN CALIFORNIA AREA'S OFFICE MARKET*
<TABLE>
<CAPTION>
Year Square Feet
<S> <C>
1989 21,097
1990 11,033
1991 9,384
1992 3,188
1993 720
1994 0
1995 0
1996 0
</TABLE>
- --------
* Square feet shown in thousands. The above table represents additions to the
Southern California Area's office market net of office space removed from
service. In 1994 and 1995, the total square footage in the market decreased
by approximately 2.0 million square feet and approximately 1.3 million
square feet, respectively.
100
<PAGE>
The addition in the near-term of any new speculative office space to the
market remains unlikely as effective rents for multi-tenant properties are
currently well below the level needed to make new construction economically
feasible.
El Segundo Office Submarket. In the El Segundo submarket the Company owns
and operates three Office Properties at Kilroy LAX, and one stand alone two-
story office building. The aggregate rentable square feet of the Office
Properties in the El Segundo submarket represent approximately 22% of the
approximately 3.4 million rentable square feet of all Class A office
properties located in this submarket as of December 31, 1996.
The El Segundo submarket is an approximately 5.4 square mile area in the
southwestern coastal section of Los Angeles County. The El Segundo submarket
has the advantages of proximity to LAX without the disadvantages of being
located within the City of Los Angeles, as is the case with the submarket
located on the northeast side of LAX (the "LAX/Century Boulevard submarket").
The El Segundo submarket has a highly qualified computer and technology-based
work force. El Segundo's tax structure is as much as $6.00 per square foot per
annum lower than neighboring Los Angeles, principally attributable to lower
gross receipts and utility taxes. As a result, the El Segundo submarket has
historically enjoyed higher rental occupancy and tenant retention rates than
neighboring submarkets, such as LAX/Century Boulevard, Torrance and Carson.
The El Segundo submarket tenant base has broadened from its historic
concentration of aerospace industry tenants. A number of major corporations
have a significant presence in the El Segundo submarket, including Xerox
Corporation, Mattel, Inc., Chevron USA, Inc., AT&T, TRW Corporation and Hughes
Space & Communications.
Management believes that because of the high quality and strategic location
of the four Office Properties located in the El Segundo submarket, the El
Segundo Office Properties have had higher occupancy and tenant retention than
other properties within this submarket and have achieved higher rental rates.
The vacancy rate of Class A office buildings in the El Segundo submarket was
approximately 19.8% as of September 30, 1996 as compared to approximately 7%
for the Company's El Segundo Office Properties as a whole as of September 30,
1996. The average asking annual rental rate in the El Segundo submarket as of
September 30, 1996 was approximately $22.00 per square foot for Class A office
buildings compared to an average asking annual rental rate of $24.00 per
square foot for the Company's El Segundo Office Properties as of September 30,
1996. No new office buildings are under construction and, to the Company's
knowledge, no new construction is presently
101
<PAGE>
projected in the near future in the El Segundo submarket. The following tables
show the comparative vacancy rates of Class A office space in the El Segundo
submarket and Kilroy LAX, and the comparative mean asking rents of Class A
office space in the El Segundo submarket and Kilroy LAX, respectively.
HISTORICAL CLASS A OFFICE VACANCY
KILROY PROPERTIES VERSUS EL SEGUNDO CLASS A
1990-1996 (1996 FIGURES AS OF SEPTEMBER 30)
<TABLE>
<CAPTION>
Year Kilroy Properties El Segundo Class A
<S> <C> <C>
1990 8.0% 8.3%
1991 6.9% 4.4%
1992 6.8% 8.5%
1993 5.5% 5.5%
1994 4.3% 19.5%
1995 4.3% 10.8%
1996 7.2% 19.8%
</TABLE>
HISTORICAL CLASS A OFFICE RENTS
KILROY PROPERTIES VERSUS EL SEGUNDO CLASS A
1990-1996 (1996 FIGURES AS OF SEPTEMBER 30)
<TABLE>
<CAPTION>
Kilroy Properties El Segundo Class A
Mean Asking Rents Mean Asking Rents
<S> <C> <C>
1990 $23.30 $22.30
1991 $23.85 $22.65
1992 $23.91 $22.55
1993 $23.70 $21.30
1994 $23.40 $21.80
1995 $23.40 $21.10
1996 $23.40 $22.00
</TABLE>
102
<PAGE>
Through September 30, 1996, net absorption of Class A office space in the El
Segundo submarket was a negative 357,000 square feet, principally the result
of the 500,000 net rentable square feet of office space owned by an
unaffiliated third-party located at 200 North Sepulveda Boulevard and vacated
by Hughes Electronics early in 1996. During the same period, Hughes Space &
Communications extended leases for office space located at Kilroy LAX covering
over 107,000 net rentable square feet. Local brokers indicate that the office
space located at 200 North Sepulveda Boulevard is among the lower quality
Class A buildings in the El Segundo submarket and is not conducive to most
tenants seeking a better quality Class A product as offered at Kilroy LAX.
During the year ended 1996, rents at Kilroy LAX remained relatively unaffected
by the addition of the lower quality space to the vacant inventory.
Management believes that the submarket's expanding economy, the availability
of large blocks of office space and lower rental rates than those offered in
the nearby West Los Angeles office submarket should apply some short-term
upward pressure on rents for quality Class A office space by as much as 5.0%
within the next year. Rental rates at lower quality (non-Class A) buildings
are expected to be flat until vacancies drop to a level of at least 15%.
Long Beach Airport Area Office Submarket. Upon consummation of the Offering
and the Formation Transactions, the Company will own five Office Properties at
Kilroy Long Beach Phases I and II which represent approximately 42% of the
total rentable square feet of all Class A office properties located in the
Long Beach Airport area submarket.
The Long Beach Airport area submarket is strategically located near the
border of Los Angeles and Orange Counties, adjacent to the I-405 Freeway and
is in close proximity to several other freeways which serve the area. The
submarket is also near the Long Beach Airport which, through AmericaWest
Airlines, provides commercial airline access to all regions of the country.
The Long Beach Airport area submarket provides tenants with the ability to
draw a workforce from and to provide services to clients in both Los Angeles
and Orange Counties, making it an ideal location for companies operating in
both counties to consolidate their operations to a convenient single location.
In addition, portions of the submarket, including the Properties located at
Kilroy Airport Center Long Beach, are located within a favorable tax zone
which permits qualifying tenants to receive a variety of tax credits and
deductions not available in neighboring submarkets. The submarket also offers
tenants a secure environment within a first class office park with the
potential for substantial expansion, whereas the Long Beach central business
district submarket is hampered by traffic congestion and limited opportunities
for tenant expansion.
As of September 30, 1996, the vacancy rate of Class A office buildings in
the Long Beach Airport area submarket was approximately 16.6% as compared to
approximately 8.6% for the Company's Long Beach Office Properties. For the
year ended December 31, 1996, the submarket experienced net absorption of
approximately 20,000 rentable square feet of office space, as compared to
approximately 458,000 rentable square feet for the year ended December 31,
1995, of which 275,000 rentable square feet was attributable to two leases
entered into by McDonnell Douglas at the Long Beach Airport Business Park. As
of December 31, 1996 and 1995, the mean asking annual rental rate in the Long
Beach Airport area submarket was approximately $22.00 and $24.40,
respectively, per rentable square foot for Class A office buildings compared
to the mean asking annual rental rate at Kilroy Long Beach of $24.00 and
$24.30, respectively, per rentable square foot.
The decrease in the submarket's vacancy rate, the indications of improvement
in the submarket's aerospace industry and the present difficulty in locating
large blocks of contiguous space should apply some short-term upward pressure
on rents for Class A office space within the next two years. Available space
for technology companies is particularly difficult to find and buildings which
offer current telephone communication capabilities and electrical support are
more likely to benefit earlier.
Thousand Oaks Submarket. Upon consummation of the Offering and the Formation
Transactions, the Company will own a stand-alone three-story office building
located in Thousand Oaks, California. The City of Thousand Oaks has
approximately 112,600 residents, and is located 40 miles northwest of Los
Angeles in
103
<PAGE>
Ventura County, which is located along the coast immediately north of Los
Angeles County. As of December 31, 1995, Ventura County had a population of
approximately 720,000 persons. The County is home to companies in various
industries including high technology, pharmaceuticals and finance. As of
December 31, 1996, the vacancy rate of office space in the Ventura County
office submarket was approximately 13.6%. During the years ended December 31,
1996 and 1995, there was net absorption in the Ventura County office submarket
of approximately 79,000 and 157,000 rentable square feet of office space,
respectively. The average annual effective gross rent for office space in the
Ventura County office submarket as of December 31, 1996 was $17.76 per square
foot, an increase of 17.5% over 1995.
Industrial Submarkets.
As of December 31, 1996, available industrial space in the Southern
California Area totaled approximately 1.2 billion square feet. Vacancy rates
in the industrial space market in the Southern California Area have declined
from a high of approximately 13.8% in 1992 to approximately 7.6% at December
31, 1996. At September 30, 1996, the vacancy rate for the Industrial
Properties was approximately 6.3%. The following table shows the U.S. and
Southern California Area industrial vacancy rates for the period from 1991
through 1996.
INDUSTRIAL MARKET VACANCY TRENDS
U.S. AND THE SOUTHERN CALIFORNIA AREA
1991-1996
<TABLE>
<CAPTION>
1991 1992 1993 1994 1995 1996
<S> <C> <C> <C> <C> <C> <C>
U.S. 7.9% 8.7% 8.3% 7.4% 6.9% 7.7%
Southern California Area 13.0% 13.8% 13.5% 12.6% 9.2% 7.6%
</TABLE>
Much of the existing space on the market in the Southern California Area is
considered to be functionally obsolete due to its age, services, and/or
configuration. As a result, the Southern California Area inventory for
industrial space is beginning to experience a modest growth in new
construction primarily of build-to-suit. In addition, speculative construction
also grew modestly in 1996 with approximately 7.0 million square feet of new
construction representing approximately 0.6% of the region's inventory.
However, this amount still is relatively modest when compared to 1989 levels
when new construction for the year reached approximately 34.0 million square
feet, and the existing building inventory was approximately 1.0 billion square
feet.
104
<PAGE>
El Segundo Industrial Submarket. The Company owns four Industrial Properties
located in the City of El Segundo, which contain an aggregate of approximately
390,000 rentable square feet. The El Segundo industrial submarket is part of
the South Bay industrial market which includes the cities of Torrance, Carson
and Long Beach. At September 30, 1996, the Company's El Segundo Industrial
Properties were 98.1% leased to three tenants. At December 31, 1996, the South
Bay industrial market contained approximately 185 million rentable square feet
of industrial space, with a vacancy rate of approximately 8.0%.
Orange County Industrial Submarket. Upon consummation of the Offering, the
Company will own seven Industrial Properties in Orange County, five of which
are in the City of Anaheim and two of which are in the City of Garden Grove.
The seven Industrial Properties located in Orange County contain an aggregate
of approximately 816,877 rentable square feet. At September 30, 1996, the
Company's Orange County Industrial Properties were 90.5% leased to 14 tenants.
At December 31, 1996, the Orange County industrial submarket contained
approximately 207 million rentable square feet, with a vacancy rate of
approximately 8.8%. The low current vacancy rate in the Southern California
industrial submarket as a whole is likely to put upward pressure on rents for
Southern California Class A buildings during 1996, with increases by as much
as 9% by the end of 1997.
SEATTLE MARKET
As of 1995, the population of the Seattle metropolitan statistical area
("Seattle MSA") was 2.2 million making it the 21st largest in the country. The
median per capita personal income in 1995 for the Seattle MSA was $28,329,
which is 22% above the national level.
The Seattle MSA has the 15th largest employment level in the nation. Since
1985, employment has grown at an average annual rate of 3.2%. Industries
concentrated in Seattle include aircraft manufacturing, aircraft parts,
computer and data processing and healthcare. The largest employers in the
greater Seattle area are Boeing Co., The University of Washington, Safeway
Inc., Microsoft Corp. and Group Health Cooperative of Puget Sound.
As of December 31, 1992, the vacancy rate for office space in the Seattle
MSA was 13.2%. Since then, this rate has steadily declined to a level of 12%
as of December 31, 1994 and 9.1% as of June 30, 1996. The Seattle MSA's
aggregate office space of 51.3 million square feet made it the 14th largest in
the nation and, as of June 30, 1996, it contained 35.2 million square feet of
Class A office space with a vacancy rate of 8.7%. Over the last three years
only 581,000 square feet of office space has been added to the Seattle MSA.
EXCLUDED PROPERTIES
The Company will hold options to acquire (i) parcels comprising an aggregate
of approximately 18 acres located at Calabasas Park Centre, in Calabasas,
California and (ii) a three-building office complex located on North Sepulveda
Boulevard in El Segundo, California at the respective purchase price for each
of the properties as discussed below. The office complex was developed and has
been leased and managed by the Kilroy Group and each option property is
currently owned by a partnership beneficially owned and controlled by John B.
Kilroy, Sr. and John B. Kilroy, Jr. The option for Calabasas Park Centre is
exercisable on or before the first anniversary of the Offering. The option for
the office complex located on North Sepulveda Boulevard in El Segundo is
exercisable on or before the seventh anniversary of the consummation of the
Offering. The purchase price for each of the properties will be payable in
cash, provided, however, that if the option for the office complex in El
Segundo is exercised after the first anniversary of the consummation of the
Offering, the purchase price will be payable in cash or Units at the election
of the seller. The Company intends to account for acquisitions of Excluded
Properties, if any, using the purchase accounting method.
In the event that the owner of a property receives an offer from a third
party for the master lease or purchase of such property, such owner may give
notice to the Company, which notice shall include the proposed purchase price,
leasing terms and/or other economic terms of the proposed transfer or lease of
such property. The Company shall then have 60 days to give notice of its
election to acquire or lease such property at the lower of
105
<PAGE>
the applicable option price or the proposed purchase price or lease terms. In
the event that the Company does not give such notice, the option to acquire
such property shall be suspended and the owner may proceed with the sale or
lease of such parcel pursuant to the terms of such offer, provided that the
economic terms may be up to 5% below that described in such notice; provided,
however, that with respect to any sale of the approximately 18 acres located
at Calabasas Park Centre discussed below, the Company shall have the right to
acquire at the option price the owners' rights and related monetary
obligations under the respective sales agreement. In the event the owners of
such property (i) have not entered into a letter of intent for the sale or
lease of such property within 180 days following the notice to the Company
referenced above, or (ii) have not completed the sale of the respective
property within 270 days following such notice, then the Company's option with
respect to such property shall be reinstated, up to the expiration date of the
option. The Company's options shall be subject to any arrangements entered
into by the Kilroy Group in connection with any financing, recapitalization or
leasing of the properties including, without limitation, any rights of the
lender(s) with respect to such properties with respect to a transfer pursuant
to the applicable option. In addition, the office complex will be managed by
the Operating Partnership pursuant to a management agreement on market terms.
Calabasas Park Centre. Kilroy Calabasas Associates, a limited partnership,
beneficially owned 49.0% by John B. Kilroy, Sr. and 51.0% by John B. Kilroy,
Jr., and controlled by both of them, owns Calabasas Park Centre, an
approximately 66-acre site (representing approximately 45 developable acres
net of acreage required for streets and contractually required open areas) in
the City of Calabasas located immediately west of the San Fernando Valley,
which is presently entitled for over one million rentable square feet of
office, retail and hotel development, and for which future entitlements are
expected to include residential development. The property has substantially
all significant infrastructure improvements in place. Kilroy Calabasas
Associates is actively marketing for sale various parcels totaling
approximately 27 acres for neighborhood retail, hotel and residential
development, of which approximately 1.7 acres is proposed to be dedicated to
the City of Calabasas for civic use. Because these 27 acres are not planned
for development for office or industrial use, management believes that such
parcels are not appropriate for inclusion in the Company's portfolio. Kilroy
Calabasas Associates has received offers with respect to certain parcels and
is pursuing such offers in the ordinary course of business, although there is
no assurance that any such transactions will be completed in the near term.
John B. Kilroy, Sr. and John B. Kilroy, Jr. each expect to spend an immaterial
amount of time in connection with any entitlement, marketing and sales of
parcels of Calabasas Park Centre. The remaining approximately 18 acres for
which the Company has been granted an option is entitled for over 500,000
rentable square feet for office, hotel and limited retail use. Because of the
uncertainty that such 18 acres will be used primarily as office space, this
property is not appropriate for inclusion in the Company's portfolio at this
time. In addition, both John B. Kilroy, Sr. and John B. Kilroy, Jr. have
agreed not to sell any of the parcels at Calabasas Park Centre to a real
estate investment trust with an existing portfolio of office or industrial
properties unless first offered to the Company on the same economic terms. See
"Policies with Respect to Certain Activities--Conflicts of Interest Policies--
Noncompetition Agreements."
Pursuant to the terms of the applicable option agreement, the purchase price
for the parcels located at Calabasas Park Centre will be equal to the total
accumulated costs, as of the date such option is exercised, in connection with
acquisition of rights with respect to, and the entitlement and development of
such property, including, without limitation, property taxes, predevelopment
and entitlement costs and fees, and related bond financing costs.
North Sepulveda Boulevard, El Segundo. The Kilroy Group developed and
operates a three-building office complex located on an over 3.5-acre parcel in
El Segundo, California, adjacent to LAX. The complex is comprised of an 11-
story office building (constructed in 1972), an eight-story office building
(constructed in 1962) and a seven-level parking structure with retail space on
the ground floor (constructed in 1972), encompassing an aggregate of
approximately 360,000 rentable square feet of office space and approximately
5,600 rentable square feet of retail space. The properties have convenient
access to LAX and the I-105 Freeway. As of September 30, 1996, the office
space was 100% leased to Hughes Space & Communications (of which approximately
60% is occupied) at an average annual triple net base rent per net rentable
square foot of $21.06,
106
<PAGE>
subject to a lease scheduled to expire on February 28, 1998. Management
believes that in light of the near-term expiration of the current lease and
the uncertainty of whether the current rental rate will approximate market
rental rates at the time of expiration, this office complex is not appropriate
for inclusion in the Company's portfolio at this time. The property is owned
by Kilroy Airport Imperial Co., a limited partnership, beneficially owned by
John B. Kilroy, Sr. and by John B. Kilroy, Jr. (who have an approximately
65.1% interest and an 18.2% interest, respectively), and controlled by both of
them. In addition, each of Patrice Bouzaid, Susan Hahn, Anne McCahon and Dana
Pantuso, the daughters of John B. Kilroy, Sr., have an approximately 4.2%
interest in the limited partnership. Each of Messrs. Kilroy expects to spend
an immaterial amount of time in connection with the management of the
property.
As of September 30, 1996, the office complex was encumbered by a first
mortgage loan having an outstanding principal balance of approximately $61.4
million. The loan bears interest at a rate of 9.63% per year and is scheduled
to mature on February 1, 2005. This property is also encumbered by a second
mortgage loan having an outstanding principal balance as of September 30, 1996
of $3.4 million. This loan bears interest at a rate of 9.75% per year and is
scheduled to mature on February 28, 1998.
Pursuant to the terms of the applicable Option Agreement, the purchase price
for the North Sepulveda Boulevard properties is equal to the sum of (i) the
then outstanding mortgage indebtedness secured by the respective properties,
plus (ii) $1, plus (iii) the aggregate amount of capital contributed by the
beneficial owners of the property, net of actual cash distributions
distributed in respect of such beneficial owners, during the period beginning
on the date of the consummation of the Offering and ending on the date of
exercise of the option, plus (iv) an annualized return of 8.0% on the amount
in excess of $5.0 million, if any, as determined pursuant to clause (iii)
preceding. The Company's option to purchase the North Sepulveda Boulevard
properties is subject to a right of first offer held by Hughes Space &
Communications.
Other Excluded Properties. In addition to the properties described above,
the Company will not acquire the following properties, each of which is owned
and controlled by John B. Kilroy, Sr. and John B. Kilroy, Jr.: (i) an
approximately three-acre undeveloped parcel located in Tampa, Florida, which
management believes is not appropriate for inclusion in the Company's
portfolio because of the long-term uncertainty of demand for office and
industrial property in the local market; and (ii) an approximately one-half-
acre parcel located in Santa Ana, California which management believes is not
appropriate for inclusion in the Company's portfolio because the parcel is
subject to an easement for railroad use, making the property undesirable for
development for office or industrial use. Each of John B. Kilroy, Sr. and John
B. Kilroy, Jr. will spend an immaterial amount of time managing these
properties.
INSURANCE
Management believes that the Properties are covered by adequate
comprehensive liability, rental loss, and all-risk insurance, provided by
reputable companies, with commercially reasonable deductibles, limits and
policy specifications customarily carried for similar properties. There are,
however, certain types of losses which may be either uninsurable or not
economically insurable, such as losses due to floods, riots or acts of war.
Should an uninsured loss occur, the Company could lose both its invested
capital in and anticipated profits from the property.
UNINSURED LOSSES FROM SEISMIC ACTIVITY
The Properties are located in areas that are subject to seismic activity.
Although the Company expects to have earthquake insurance on certain of the
Properties, should any Property sustain damage as a result of an earthquake,
or should losses exceed the amount of such coverage, the Company may incur
uninsured losses or losses due to deductibles or co-payments on insured
losses.
All of the Properties were reviewed by an independent engineering
consultant. Each of the Office Properties located at Kilroy LAX, Kilroy Long
Beach and the SeaTac Office Center was reviewed as part of the respective
107
<PAGE>
office complex ("Office Complex") in which each is located and the following
data summarizes the findings with respect to each Office Complex taken as a
whole. The review of each of the Properties and Office Complexes included a
review of the probable loss associated with certain seismic activity for the
"as-is" building shell construction. The estimated property damage loss
associated with building shell construction and related business interruption
for the Office Complexes and each of the other Properties was estimated based
upon site-specific seismic ground motion intensities expected to occur at
least once during 50-year and 200-year time periods. For 50-year seismic
ground motion intensity, these property damage loss evaluations indicate that
none of the Office Complexes would be expected to incur property damage losses
in excess of approximately 10% of their respective estimated replacement cost
value ("RCV") and only two of the Industrial Properties would be expected to
incur property damage losses in excess of approximately 10% of the RCV. The
two Industrial Properties, located at 12691 Pala Drive, Garden Grove,
California and 1230 South Lewis Street, Anaheim, California, are expected to
incur 50-year property damage losses of approximately 13% and approximately
14%, respectively, of their RCVs. For seismic ground motion intensities
expected to occur at least once in a 200-year period, these property damage
loss evaluations indicate that only one of the Office Properties (including
the Office Complexes) would be expected to incur property damage losses in
excess of approximately 21% of its RCV. Specifically, the Office Property
located at 185 South Douglas Street, El Segundo, California is expected to
incur a 200-year property damage loss of approximately 40% of its estimated
RCV. With respect to the Industrial Properties, only four would be expected to
incur 200-year property damage losses in excess of 25% of their respective
RCVs. Specifically, Industrial Properties located at 12691 Pala Drive, Garden
Grove, California; 1230 South Lewis Street, Anaheim, California; 2260 E. El
Segundo Boulevard, El Segundo, California; and 2270 E. El Segundo Boulevard,
El Segundo, California, each would be expected to experience property damage
losses of approximately 40% of its respective estimated RCV during a 200-year
seismic disturbance.
The Company has insurance for loss in the event of damage to the Properties
from earthquake activity, which consists of primary loss insurance of $1.0
million and $10.0 million supplemental coverage, for losses in excess of
$11.0 million. Both the primary loss and supplemental coverage are subject to
deductibles equal to 25% of the insurable values for each location per
occurrence and, for the primary coverage, a minimum deductible of $250,000 (to
the extent that such amount is greater than 25% of the insurable values at
such location) for each location per occurrence. The Company's earthquake
insurance might not be sufficient to cover the cost of damage sustained in any
seismic event and is not replacement cost.
GOVERNMENT REGULATIONS
Many laws and governmental regulations are applicable to the Properties and
changes in these laws and regulations, or their interpretation by agencies and
the courts, occur frequently.
Costs of Compliance with Americans with Disabilities Act. Under the
Americans with Disabilities Act of 1990 (the "ADA"), all places of public
accommodation, effective beginning in 1992, are required to meet certain
federal requirements related to access and use by disabled persons. Compliance
with the ADA might require removal of structural barriers to handicapped
access in certain public areas where such removal is "readily achievable."
Noncompliance with the ADA could result in the imposition of fines or an award
of damages to private litigants. The impact of application of the ADA to the
Company's properties, including the extent and timing of required renovations,
is uncertain. If required changes involve a greater amount of expenditures
than the Company currently anticipates or if the changes must be made on a
more accelerated schedule than the Company currently anticipates, the
Company's ability to make expected distributions to stockholders could be
adversely affected.
Environmental Matters. Under various federal, state and local laws,
ordinances and regulations relating to the protection of the environment, an
owner or operator of real estate may be held liable for the costs of removal
or remediation of certain hazardous or toxic substances located on or in the
property. These laws often impose liability without regard to whether the
owner was responsible for, or even knew of, the presence of such hazardous or
toxic substances. The costs of investigation, removal or remediation of such
substances may be substantial and, the presence of such substances may
adversely affect the owner's ability to rent or sell the
108
<PAGE>
property or to borrow using such property as collateral. In addition, the
presence of such substances may expose it to liability resulting from any
release or exposure of such substances. Persons who arrange for the disposal
or treatment of hazardous or toxic substances at another location may also be
liable for the costs of removal or remediation of such substances at the
disposal or treatment facility, whether or not such facility is owned or
operated by such person. Certain environmental laws impose liability for
release of asbestos-containing materials into the air, and third parties may
also seek recovery from owners or operators of real properties for personal
injury associated with asbestos-containing materials and other hazardous or
toxic substances. In connection with the ownership (direct or indirect),
operation, management and development of real properties, the Company may be
considered an owner or operator of such properties or as having arranged for
the disposal or treatment of hazardous or toxic substances and, therefore,
potentially liable for removal or remediation costs, as well as certain other
related costs, including governmental penalties and injuries to persons and
property.
The Company believes that the Properties are in compliance in all material
respects with all federal, state and local laws, ordinances and regulations
regarding hazardous or toxic substances or petroleum products. The Company has
not been notified by any governmental authority, and is not otherwise aware,
of any material noncompliance, liability or claim relating to hazardous or
toxic substances or petroleum products in connection with any of its present
properties.
All of the Properties were subject to Phase I or similar environmental
assessments by independent environmental consultants in connection with the
formation of the Company. Phase I assessments are intended to discover
information regarding, and to evaluate the environmental condition of, the
surveyed property and surrounding properties. Phase I assessments generally
include an historical review, a public records review, an investigation of the
surveyed site and surrounding properties, and preparation and issuance of a
written report, but do not include soil sampling or subsurface investigations.
In connection with the preparation of the Phase I environmental survey with
respect to Kilroy Long Beach Phase I, interviews of certain individuals
formerly employed at the site documented in a historical site assessment
survey revealed the site's possible prior use as a Nike missile storage
facility. Further investigation performed by the Company's environmental
consultants and by the Company did not reveal any additional information with
respect to such use of the site. The Company's investigation included whether
the site might have been used previously for the storage of missiles
containing nuclear warheads, and did not reveal any facts that would indicate
that the prior use of the site would result in a material risk of
environmental liability. Consequently, the Company does not believe that this
site constitutes a risk of a liability that would have a material adverse
effect on the Company's financial condition or results of operations taken as
a whole. In connection with the preparation of the Phase I environmental
survey with respect to the Industrial Property located at 12752-12822 Monarch
Street, soil sampling revealed trace elements of contamination with cleaning
solvents. However, based on the level of contamination noted in the
environmental survey, management does not believe that such contamination will
have a material adverse effect on the Company's financial condition or results
of operations, taken as a whole. None of the Company's environmental
assessments of the other Properties has revealed any environmental liability
that the Company believes would have a material adverse effect on the
Company's financial condition or results of operations taken as a whole, nor
is the Company aware of any such material environmental liability.
Nonetheless, it is possible that the Company's assessments do not reveal all
environmental liabilities or that there are material environmental liabilities
of which the Company is unaware. Moreover, there can be no assurance that (i)
future laws, ordinances or regulations will not impose any material
environmental liability or (ii) the current environmental condition of the
Properties will not be affected by tenants, by the condition of land or
operations in the vicinity of the Properties (such as the presence of
underground storage tanks), or by third parties unrelated to the Company. If
compliance with the various laws and regulations, now existing or hereafter
adopted, exceeds the Company's budgets for such items, the Company's ability
to make expected distributions to stockholders could be adversely affected.
Other Regulations. The Properties are also subject to various federal, state
and local regulatory requirements such as state and local fire and life safety
requirements. Failure to comply with these requirements could result in the
imposition of fines by governmental authorities or awards of damages to
private litigants. The
109
<PAGE>
Company believes that the Properties are currently in material compliance with
all such regulatory requirements. However, the requirements will not be
changed or that new requirements will not be imposed which would require
significant unanticipated expenditures by the Company and could have an
adverse effect on the Company's Funds from Operations and expected
distributions.
The City of Los Angeles has enacted certain regulations relating to the
repair of welded steel moment frame buildings located in certain areas damaged
as a result of the Northridge Earthquake. As currently enacted, such
regulations do not apply to the Properties. There can be no assurance,
however, that similar regulations will not be adopted by other cities in which
the Properties are located or that new requirements will not be imposed which
would require significant unanticipated expenditures by the Company and could
have a material adverse effect on the Company's Funds from Operations and cash
available for distribution.
Except as described in this Prospectus, there are no other laws or
regulations which have a material effect on the Company's operations, other
than typical state and local laws affecting the development and operation of
real property, such as zoning laws. See "Risk Factors--Government
Regulations," "Certain Provisions of Maryland Law and of the Company's
Articles of Incorporation and Bylaws," "Partnership Agreement of Operating
Partnership," "Federal Income Tax Consequences" and "ERISA Considerations."
MANAGEMENT AND EMPLOYEES
The Operating Partnership has been structured as the entity through which
the Company will conduct substantially all of its operations. The Services
Company has been structured as an entity through which the Company will
conduct substantially all of its development activities and related
operations. The Company generally has full, exclusive and complete
responsibility and discretion in the management and control of the Operating
Partnership, but not of the Services Company.
The Company (primarily through the Operating Partnership and the Services
Company) initially will employ approximately 47 persons. The Company, the
Operating Partnership and the Services Company will employ substantially all
of the professional employees of KI that are currently engaged in asset
management and administration. The Operating Partnership will employ
approximately 18 on-site building employees who currently provide services for
the Properties. The Company, the Operating Partnership and the Services
Company believe that relations with their employees are good.
LEGAL PROCEEDINGS
Neither the Company nor any of the Properties is subject to any material
litigation nor, to the Company's knowledge, is any material litigation
threatened against any of them, other than routine litigation arising in the
ordinary course of business, which is expected to be covered by liability
insurance. In May 1994, KI permitted an uncontested foreclosure by the Bank of
America on a five-story office building located in El Segundo, California as
part of an overall renegotiation of KI's loans and lines of credit. In July
1993, KI sold Kilroy Long Beach Phase I to the mortgagee thereof, at a
purchase price slightly in excess of the outstanding balance of such mortgage.
KI continued to lease and manage such facility after such sale. In December
1994, the owner of Hidden River Corporate Park located in Tampa, Florida
permitted the uncontested foreclosure of the deeds of trust and certain other
property pledged as collateral to secure certain development loans related to
such property. KI developed the property, an approximately 210-acre office
park, and at the time of the foreclosure John B. Kilroy, Sr. and John B.
Kilroy, Jr. were limited partners in the company which owned the property.
110
<PAGE>
POLICIES WITH RESPECT TO CERTAIN ACTIVITIES
The Company's policies with respect to the following activities have been
determined by the Board of Directors of the Company and may be amended or
revised from time to time at the discretion of the Board of Directors, without
a vote of the stockholders of the Company, if they determine in the future
that such a change is in the best interests of the Company and its
stockholders.
INVESTMENT POLICIES
Investment in Real Estate or Interests in Real Estate. The Company will
conduct all its investment activities through the purchase of interests in the
Operating Partnership until all Units have been redeemed or exchanged for
shares of Common Stock and the Operating Partnership ceases to exist. During
such period, the proceeds of all equity capital raised by the Company will be
contributed to the Operating Partnership in exchange for Units in the
Operating Partnership. The investment objectives of the Company are to achieve
stable cash flow available for distributions and, over time, to increase cash
flow and portfolio value by actively managing the Properties, developing
properties, acquiring additional properties that, either as acquired or after
value-added activities by the Company (such as improved management and leasing
services and renovations), will produce additional cash flows and by extending
its management, development and leasing business with third-parties. The
Company's policy is to develop and acquire properties primarily for generation
of current income and appreciation of long-term value.
The Company expects to pursue its investment objectives primarily through
the ownership of quality office, industrial and retail properties. The
Properties will initially consist of 14 Office Properties and 12 Industrial
Properties. The Company currently contemplates developing and acquiring
additional office buildings and industrial buildings primarily in Southern
California, although future investments could be made outside of such area or
in different property categories if the Board of Directors determines that
such acquisitions and developments would be desirable. The Company will not
have any limit on the amount or percentage of its assets invested in any
single property or group of related properties. The Board of Directors may
establish limitations as it deems appropriate from time to time. No
limitations have been set on the number of properties in which the Company
will seek to invest or on the concentration of investments in any one
geographic region.
The Company may develop, purchase or lease income-producing properties for
long-term investment and expand, improve or sell its properties, in whole or
in part, when circumstances warrant. The Company may also participate with
other entities in property ownership through joint ventures or other types of
co-ownership. Equity investments by the Company may be subject to existing or
future mortgage financing and other indebtedness which will have priority over
the equity interests of the Company.
As the sole general partner of the Operating Partnership, the Company will
also determine the investment policies of the Operating Partnership. Under the
Partnership Agreement, all future investments must be made through the
Operating Partnership. See "Partnership Agreement of the Operating
Partnership--Management."
Investments in Real Estate Mortgages. While the Company will emphasize
equity real estate investments, the Company may, in its discretion, invest in
mortgages and other real estate interests consistent with the Company's
qualification as a REIT. The Company has not previously invested in mortgages
and does not presently intend to invest in mortgages or deeds of trust, but
may invest in participating or convertible mortgages if the Company concludes
that it may benefit from the cash flow or any appreciation in the value of the
subject property. Such mortgages are similar to equity participations.
Investments in real estate mortgages run the risk that one or more borrowers
may default under such mortgages and that the collateral securing such
mortgages may not be sufficient to enable the Company to recoup its full
investment.
Securities of or Interests in Persons Primarily Engaged in Real Estate
Activities and Other Issuers. Subject to the percentage of ownership
limitations and gross income tests necessary for the Company to qualify and
maintain its status as a REIT, the Company may invest in securities of other
entities engaged in real estate
111
<PAGE>
activities or securities of other issuers. See "Federal Income Tax
Considerations--Taxation of the Company." Except for its investment in the
Services Company, the Company does not currently intend to invest in the
securities of other issuers except in connection with acquisitions of indirect
interests in properties (normally general or limited partnership interests in
special purpose partnerships owning properties) and in connection with the
acquisition of substantially all of the economic interest in a real estate-
related operating business where such investments would be consistent with the
Company's investment policies. Investment in these securities is also subject
to the Company's policy not to be treated as an investment company under the
Investment Company Act of 1940. The risks of investing in real estate-related
operating businesses include the risk that contracts with third parties may be
terminated by such third parties, not renewed upon expiration or renewed on
less favorable terms, and the risk that fee income will decrease as a result
of a decline in general real estate market conditions.
DISPOSITIONS
The Company has no current intention to cause the disposition of any of the
Properties, although it reserves the right to do so if the Board of Directors
determines that such action would be in the best interests of the Company. The
disposition of the Office Property located at 2260 E. Imperial Highway at
Kilroy LAX in El Segundo is subject to the approval of limited partners of the
Operating Partnership. See "Partnership Agreement of the Operating
Partnership--Certain Limited Partner Approval Rights."
FINANCING
The Company has established its debt policy relative to the market
capitalization of the Company rather than to the book value of its assets, a
ratio that is frequently employed. Upon completion of the Offering and the
Formation Transactions, the debt to total market capitalization ratio (i.e.,
the total consolidated debt of the Company as a percentage of the market value
of the issued and outstanding shares of Common Stock and Units plus total
consolidated debt) of the Company will be approximately 21.9% (assuming an
initial public offering price of $22.50 per share of Common Stock). This ratio
will fluctuate with changes in the price of the Common Stock (and the issuance
of additional shares of Common Stock) and differs from the debt-to-book
capitalization ratio, which is based upon book value. As the debt-to-book
capitalization ratio may not reflect the current income potential of a
company's assets and operations, the Company believes that debt-to-total
market capitalization ratio provides a more appropriate indication of leverage
for a company whose assets are primarily income-producing real estate. The
total market capitalization of the Company, however, is more variable than
book value, and does not necessarily reflect the fair market value of the
underlying assets of the Company at all times. Although the Company will
consider factors other than total market capitalization in making decisions
regarding the incurrence of indebtedness (such as the purchase price of
properties to be acquired with debt financing, the estimated market value of
such properties upon refinancing and the ability of particular properties and
the Company as a whole to generate cash flow to cover expected debt service),
there can be no assurance that the ratio of indebtedness to total market
capitalization (or to any other measure of asset value) will be consistent
with the expected level of distributions to the Company's stockholders.
The Board of Directors has adopted a policy of limiting the Company's
indebtedness to approximately 50% of its total market capitalization, but the
organizational documents of the Company do not contain any limitation on the
amount or percentage of indebtedness, funded or otherwise, that the Company
may incur. In addition, the Company may from time to time modify its debt
policy in light of then current economic conditions, relative costs of debt
and equity capital, market values of its properties, general conditions in the
market for debt and equity securities, fluctuations in the market price of its
Common Stock, growth and acquisition opportunities, the Company's continued
REIT qualification requirements and other presently unknown factors which may
arise in the future which, in the judgment of the Board of Directors, require
a revision in such policy. Accordingly, the Company may increase or decrease
its debt to market capitalization ratio beyond the limits described above.
To the extent that the Board of Directors decides to obtain additional
capital, the Company may raise such capital through additional equity
offerings (including offerings of senior or convertible securities and
preferred stock), sales of investments, bank and other institutional
borrowings, the issuance of debt securities (which may
112
<PAGE>
be convertible into or exchangeable for shares of Common Stock or be
accompanied by warrants to purchase shares of Common Stock) or retention of
cash flow (subject to provisions in the Code concerning taxability of
undistributed REIT income), or a combination of these methods. In the event
that the Board of Directors determines to raise additional equity capital, the
Board has the authority, without stockholder approval, to issue additional
shares of Common Stock or other capital stock (including securities senior to
the Common Stock) of the Company in any manner, and on such terms and for such
consideration, it deems appropriate, including in exchange for property.
Existing stockholders would have no preemptive right to purchase shares issued
in any offering, and any such offering might cause a dilution of a
stockholder's investment in the Company. As long as the Operating Partnership
is in existence, the net proceeds of the sale of Common Stock by the Company
will be contributed to the Operating Partnership as a contribution to capital
in exchange for a number of Units in the Operating Partnership equal to the
number of shares of Common Stock sold by the Company. The Company presently
anticipates that any additional borrowings would be made by the Operating
Partnership, although the Company might incur indebtedness, the proceeds of
which would be re-loaned to the Operating Partnership on the same terms and
conditions as are applicable to the Company's borrowing of such funds. See
"Partnership Agreement of the Operating Partnership--Capital Contribution."
Borrowings may be unsecured or may be secured by any or all of the assets of
the Company, the Operating Partnership or any existing or new property-owning
partnership and may have full or limited recourse to all or any portion of the
assets of the Company, the Operating Partnership or any existing or new
property-owning partnership. Indebtedness incurred by the Company may be in
the form of bank borrowings, purchase money obligations to the sellers of the
properties, publicly or privately placed debt instruments or financing from
institutional investors or other lenders. There are no limits on the number or
amount of mortgages or interests which may be placed on any one property. In
addition, such indebtedness may be recourse to all or any part of the property
of the Company or may be limited to the particular property for which the
indebtedness relates. The proceeds from any borrowings by the Company may be
used for working capital, to refinance existing indebtedness, to finance the
acquisition, expansion or development of properties and for the payment of
distributions.
The Board of Directors also has the authority to cause the Operating
Partnership to issue additional Units in any manner (and on such terms and for
such consideration) as it deems appropriate, including in exchange for
property. See "Partnership Agreement of the Operating Partnership--Issuance of
Additional Units."
In the future, the Company may seek to extend, expand, reduce or renew the
Mortgage Loans, the proposed Credit Facility, or obtain new credit facilities
or lines of credit, subject to its general policy of debt capitalization.
Future mortgage loans, credit facilities and lines of credit may be used for
the purpose of making acquisitions or capital improvements, providing working
capital or meeting the taxable income distribution requirements for REITs
under the Code if the Company has taxable income without receipt of cash
sufficient to enable the Company to meet such distribution requirements.
WORKING CAPITAL RESERVES
The Company will maintain working capital reserves (and when not sufficient,
access to borrowings) in amounts that the Board of Directors determines from
time to time to be adequate to meet normal contingencies in connection with
the operation of the Company's business and investments.
CONFLICT OF INTEREST POLICIES
Directors and officers of the Company may be subject to certain conflicts of
interests in fulfilling their responsibilities to the Company. The Company has
adopted certain policies designed to minimize potential conflicts of interest.
Terms of Transfers. The terms of the transfers of the Properties to the
Operating Partnership by the Continuing Investors, and the terms of each of
the option agreements relating to the Excluded Properties, were not determined
through arm's-length negotiation. Partners and affiliates of the Kilroy Group
who are directors
113
<PAGE>
and officers of the Company had a substantial economic interest in the
entities transferring the Properties and granting the options. Consequently,
such directors and officers may be subject to a conflict of interest with
respect to their obligations as management of the Company to enforce the terms
of the agreements relating to such transfers, including the indemnification
provisions thereof. However, the Independent Directors must approve any
transactions between the Company and members of the Kilroy Group including the
enforcement of the terms of the transfers. See "Risk Factors--Conflicts of
Interests" and "Management."
Sale or Refinancing of Properties. The sale of certain of the Properties may
cause adverse tax consequences to members of the Kilroy Group, as compared to
the effects on the Company. In addition, a significant reduction in debt
encumbering such Properties could cause adverse tax consequences to the
members of the Kilroy Group, as compared to the effects on the holders of
Units or shares of Common Stock. As a result, certain officers and directors
who are members of the Kilroy Group might not favor such a sale of the
Properties or a significant reduction in debt even though such sale or debt
reduction could be beneficial to the Company. The decision as to whether to
proceed with any such sale or debt reduction would be made by the Board of
Directors, subject to the obligation of the Operating Partnership to use its
commercially reasonable efforts to cooperate with the limited partners to
minimize any taxes payable in connection with any repayment, refinancing,
replacement or restructuring of indebtedness, or any sale, exchange or any
other disposition of assets, of the Operating Partnership. In addition, the
Partnership Agreement provides that if the limited partners own at least 5% of
the outstanding Units (including Units held by the Company), the Company shall
not, on behalf of the Operating Partnership, prior to the seventh anniversary
of the consummation of the Offering, sell the Office Property located at 2260
E. Imperial Highway, at Kilroy LAX, other than incident to a merger or sale of
substantially all of the Company's assets. See "Partnership Agreement of the
Operating Partnership--Transferability of Interests" and "--Certain Limited
Partner Approval Rights."
Noncompetition Agreements. John B. Kilroy, Sr. has agreed, during the term
of his service as a member of the Company's Board of Directors, not to conduct
property development, acquisition or management activities with respect to
office and industrial property in greater Southern California or in any other
market in which the Company owns, develops or manages property. John B.
Kilroy, Sr. will not be restricted, however, from continuing to own, manage
and lease certain other existing real estate investments owned by him
including, without limitation, certain properties described under "Business
and Properties--Excluded Properties."
John B. Kilroy, Jr. has agreed, during the term of his employment agreement
and for one year thereafter (unless terminated by the Company without "cause"
or he terminates his employment for "good reason" or following a "change of
control," as such terms are defined in his employment agreement), and for so
long as he is a member of the Company's Board of Directors, not to conduct
property development, acquisition, sale or management activities in any
market. Notwithstanding the foregoing, John B. Kilroy, Jr. will not be
restricted from continuing to own, manage, lease, transfer and exchange
certain existing real estate investments owned by him described under the
caption "Business and Properties--Excluded Properties" or owning interests in
real property not competitive with the Company. See "Management--Employment
Agreements."
In addition, with respect to the property located at Calabasas Park Centre,
each of Mr. John B. Kilroy, Sr. and Mr. John B. Kilroy, Jr. has agreed to be
limited solely to activities related to the marketing, entitlement and sale of
such properties. Such properties are being actively marketed for sale and are
expected to be sold in the ordinary course of business. Mr. John B. Kilroy,
Sr. and Mr. John B. Kilroy, Jr. each will spend an immaterial amount of time
in connection with the sale of such properties. In addition, each has agreed
not to sell such properties located at Calabasas Park Centre to a real estate
investment trust with an existing portfolio of office or industrial properties
unless first offered to the Company on the same economic terms.
License Agreement. The Continuing Investors who are members of the Kilroy
family will enter into a license agreement (the "License Agreement") pursuant
to which such Continuing Investors will grant to the Company the nonexclusive
right to use the Kilroy name in connection with the acquisition, development,
leasing and management of commercial properties. Pursuant to the terms of the
License Agreement, each of the Continuing Investors will retain the right to
use the Kilroy name for commercial endeavors, including in connection with
real estate transactions. Such activities will be subject to the limitations
set forth in the agreements described under the caption "--Noncompetition
Agreements."
114
<PAGE>
Policies Applicable to All Directors. Under the Company's Articles of
Incorporation and Maryland law, a contract or transaction between the Company
and any of its directors or between the Company and any other corporation,
firm or other entity in which any of its directors is a director, officer,
stockholder, member or partner or has a material financial interest is not
void or voidable solely because of such interest if (i) the contract or
transaction is approved, after disclosure of the interest, by the affirmative
vote of a majority of the disinterested directors, or by the affirmative vote
of a majority of the votes cast by disinterested stockholders, or (ii) the
contract or transaction is established to have been fair and reasonable to the
Company.
The Company's Articles of Incorporation and Bylaws provide that a majority
of the Company's Board of Directors must be Independent Directors. See
"Certain Provisions of Maryland Law and of the Company's Articles of
Incorporation and Bylaws--Board of Directors."
OTHER POLICIES
The Company intends to operate in a manner that will not subject it to
regulation under the Investment Company Act of 1940. The Company does not
intend (i) to invest in the securities of other issuers (other than the
Operating Partnership and the Services Company) for the purpose of exercising
control over such issuer, (ii) to underwrite securities of other issuers or
(iii) to trade actively in loans or other investments.
The Company has authority to offer shares of Common Stock or other
securities and to repurchase or otherwise reacquire shares of Common Stock or
any other securities in the open market or otherwise and may engage in such
activities in the future. The Company may, under certain circumstances,
purchase shares of Common Stock in the open market, if such purchases are
approved by the Board of Directors. The Board of Directors has no present
intention of causing the Company to repurchase any of the shares of Common
Stock, and any such action would be taken only in conformity with applicable
federal and state laws and the requirements for qualifying as a REIT under the
Code and the Treasury Regulations. Although it may do so in the future, except
in connection with the Formation Transactions, the Company has not issued
Common Stock or any other securities in exchange for property, nor has it
reacquired any of its Common Stock or any other securities. The Company
expects to issue shares of Common Stock to holders of Units upon exercise of
their exchange rights in the Partnership Agreement of the Operating
Partnership. The Company has not made loans to other entities or persons,
including its officers and directors. The Company may in the future make loans
to joint ventures in which it participates in order to meet working capital
needs. The Company has not engaged in trading, underwriting or agency
distribution or sale of securities of other issuers other than the Operating
Partnership, nor has the Company invested in the securities of other issuers
other than the Operating Partnership and the Services Company for the purposes
of exercising control, and does not intend to do so.
At all times, the Company intends to make investments in such a manner as to
be consistent with the requirements of the Code for the Company to qualify as
a REIT unless, because of changing circumstances or changes in the Code (or in
Treasury Regulations), the Board of Directors of the Company determines that
it is no longer in the best interests of the Company to qualify as a REIT and
such determination is approved by the affirmative vote of holders owning at
least two-thirds of the shares of the Company's capital stock outstanding and
entitled to vote thereon.
115
<PAGE>
THE FINANCING
THE MORTGAGE LOANS
The Company, on behalf of the Operating Partnership, has obtained written
commitments for mortgage loans totaling $96.0 million (the "Mortgage Loans")
from Morgan Guaranty Trust Company of New York, the closing of which is a
condition to the consummation of the Offering. The proceeds of the Mortgage
Loans principally will be used to repay existing indebtedness on the
Properties. The Mortgage Loans consist of the $84.0 Million Loan and the $12.0
million SeaTac Loan.
The $84.0 Million Loan will require monthly principal and interest payments
based on a fixed rate equal to the sum of the interest rate for U.S. Treasury
Securities maturing 8 years from the date of the closing of the $84.0 Million
Loan plus 1.75%, and will amortize over a 25-year period, maturing in 2005.
The $84.0 Million Loan will be secured by cross-collateralized and cross-
defaulted mortgages on certain of the Properties. The $84.0 Million Loan may
not be repaid during the first four years of the loan term. Thereafter the
loan may be repaid in whole or in part, subject to a prepayment premium. The
$84.0 Million Loan will require reserves for current taxes and insurance,
capital expenditures and tenant improvements and leasing commissions. Upon
consummation of the Offering, an improvements and repairs reserve of
approximately $949,100 will be established, which reserve will be released
upon completion of the improvements; a replacement reserve will be funded
monthly at an annual rate of $.208 per square foot of the collateral; and a
reserve of $888,000 will be established to make certain earthquake-related
structural modifications. A tenant improvement and leasing commission reserve
will commence in January 1998; the Company presently anticipates that the
average balance of this reserve will be approximately $1.0 million in each of
the first four years of the reserve. In addition, the $84.0 Million Loan will
include customary representations and warranties and will require the borrower
to comply with the following affirmative and negative covenants: limitations
on the incurrence of additional indebtedness; limitations on advances to and
investments in others (including the guaranty of any obligations of another
person); limitations on the transfer or sale of assets including the
collateral; limitations on merger and acquisition transactions; maintenance of
minimum levels of insurance; maintenance of collateral; and other customary
covenants. The Company anticipates that the $84.0 Million Loan will be
incurred by a limited partnership which is wholly-owned by the Company and the
Operating Partnership and which will be structured to be a "bankruptcy remote"
financing vehicle. The Properties to be used as collateral for the $84.0
Million Loan will be transferred to that limited partnership. Subject to
certain limited exceptions, the $84.0 Million Loan will be non-recourse to the
Company.
The SeaTac Loan will bear interest at a variable rate equal to the 30-day
London interbank overnight rate ("LIBOR") plus 3.0%, and matures in July 1997.
The SeaTac Loan will require monthly payments of interest. The SeaTac Loan
will be secured by the ground leasehold interest in the SeaTac Office Center.
Principal and interest under the SeaTac Loan will be full recourse to the
Company. SeaTac's occupancy rate was approximately 42.1% at September 30,
1996. The Company excluded the SeaTac Office Center from the collateral pool
for the $84.0 Million Loan to provide flexibility to incur additional debt
secured by the SeaTac Office Center if the Company leases additional space at
this Property. In connection with the $84.0 Million Loan, the Company will pay
fees equal .50% of the total principal amount, or $420,000, and will reimburse
the lender for its costs and expenses. In connection with the SeaTac Loan, the
Company will pay fees equal to 1.5% of the total principal amount, or
$180,000, and will reimburse the lender for its costs and expenses.
THE CREDIT FACILITY
The Company, on behalf of the Operating Partnership is currently negotiating
with Morgan Guaranty Trust Company of New York, on behalf of the proposed
lenders, a two-year, $100.0 million revolving credit facility (the "Credit
Facility") which the Company and the Operating Partnership expect to enter
into shortly after the Offering. There can be no assurance that the Company
and the Operating Partnership will enter into the Credit Facility. The Credit
Facility is expected to be used primarily to finance acquisitions of
additional properties. Payment of principal and interest is expected to be
secured by certain Properties other than Properties securing
116
<PAGE>
the Mortgage Loans. In addition, borrowings under the Credit Facility are
expected to be recourse obligations to the Operating Partnership and the
Company.
Availability under the Credit Facility would be subject to the value of the
underlying collateral securing it. The Company expects that, initially,
approximately $50.0 million of the total amount of the Credit Facility would
be available to the Operating Partnership. The Operating Partnership's ability
to borrow under the Credit Facility is expected to be subject to its
compliance with the following covenants on an ongoing basis: a ratio of Net
Operating Cash Flow (as defined below) to Debt Service (as defined below) of
1.75-to-1; a loan to collateral value ratio of not more than 60.0%; a ratio of
debt to tangible fair market value of real property assets owned by the
Operating Partnership of not more than 50%; a ratio of earnings before income
taxes, depreciation and amortization to Debt Service of at least 2-to-1;
limitations on distributions to 95% of funds from operations; consolidated
tangible net worth of the Operating Partnership of not less than 90.0% of the
Operating Partnership's consolidated tangible net worth as of the closing date
for the Credit Facility; maintenance of the Company's status as a REIT for
federal income tax purposes and compliance with all applicable regulations in
connection with such status; maintenance of collateral; a limit on total
development projects to 20% of total assets; limitations on the incurrence of
additional indebtedness; and other customary covenants. "Debt Service" means,
measured as of the last day of each calender quarter, an amount equal to the
interest actually payable by the Operating Partnership on the loans for the
previous four consecutive quarters including the quarter then ended. "Net
Operating Cash Flow" means, as of the first day of each month for the
immediately preceding month, all property income as shown on the Operating
Partnership's financial statements, less all operating expenses of the
Operating Partnership during such period, which operating expenses shall not
include (i) depreciation, amortization or other non-cash expenses, (ii) income
taxes, (iii) all costs and expenses (including, without limitation, attorneys'
fees and disbursements and other professional fees and expenses) incurred in
connection with the transactions contemplated by the Credit Facility, or (iv)
capital expenditures. The Credit Facility is expected to require monthly
interest only (LIBOR based) payments on the total borrowings outstanding under
the Credit Facility. The Company and the Operating Partnership anticipate that
the Credit Facility will be either extended, renewed or refinanced through the
issuance of debt or equity securities at its maturity. The Company and the
Operating Partnership will be responsible for payment of the lender's fees and
expenses associated with providing the Credit Facility. In connection with the
Credit Facility, the Operating Partnership will pay fees equal to 1.0% of the
total commitment under the Credit Facility, or $1.0 million, and will
reimburse the lenders for its costs and expenses.
If the initial public offering price for the Common Stock is less than the
assumed offering price of $22.50 per share, the Company expects to make up any
shortfall between the aggregate net proceeds of the Offering and the Mortgage
Loans, and the intended uses thereof, by reducing its working capital cash
reserves. See "Use of Proceeds."
117
<PAGE>
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
Upon consummation of the Offering, the Board of Directors will consist of
five members, including a majority of directors who are Independent Directors.
Directors of the Company will be divided into three classes serving staggered
three-year terms (except initial terms expiring in 1998 and 1999) with
directors serving until the election and qualification of their successors.
The first annual meeting of stockholders of the Company after the Offering
will be held in 1998. Each of the proposed directors named below has been
nominated for election upon the consummation of the Offering and has consented
to serve. See "Certain Provisions of Maryland Law and of the Company's
Articles of Incorporation and Bylaws--Board of Directors." Subject to rights
pursuant to any employment agreements, officers of the Company serve at the
pleasure of the Board of Directors.
The following table sets forth certain information with respect to the
directors, proposed directors and executive officers of the Company
immediately following the completion of the Formation Transactions and
consummation of the Offering:
<TABLE>
<CAPTION>
TERM
NAME AGE POSITION EXPIRES
---- --- -------- -------
<C> <C> <S> <C>
John B. Kilroy, Sr....... 74 Chairman of the Board of Directors 1999
John B. Kilroy, Jr....... 48 President, Chief Executive Officer and 2000
Director
Jeffrey C. Hawken........ 37 Executive Vice President and Chief
Operating Officer
Campbell Hugh Greenup.... 43 General Counsel
Richard E. Moran Jr...... 45 Executive Vice President, Chief
Financial Officer and Secretary
A. Christian Krogh....... 48 Vice President, Asset Management
William P. Dickey........ 53 Director Nominee 1998
Matthew J. Hart.......... 44 Director Nominee 1999
Dale F. Kinsella......... 48 Director Nominee 2000
</TABLE>
The following is a biographical summary of the experience of the directors,
proposed directors and executive officers of the Company:
JOHN B. KILROY, SR., age 74, founded, in 1947, the businesses which were
incorporated in 1952 as the entity today known as Kilroy Industries. Mr.
Kilroy has served as Kilroy Industries' President from its incorporation
until 1981, and as its Chairman of its Board of Directors since 1954. Mr.
Kilroy is a nationally recognized member of the real estate community,
providing the Company with strategic leadership and a broadly-based network
of relationships. Mr. Kilroy is a trustee of the Independent Colleges of
Southern California, serves on the Board of Directors of Pepperdine
University, and is a past trustee of Harvey Mudd College.
JOHN B. KILROY, JR., age 48, has been responsible for the overall
management of all facets of KI and its various affiliates since 1981. Mr.
Kilroy has been involved in all aspects of commercial and industrial real
estate acquisition, sales, development, construction, leasing, financing,
and entitlement since 1967 and has worked for KI for over twenty-five
years. Mr. Kilroy became President of KI in 1981 and was elected Chief
Executive Officer in 1991. Prior to that time he held positions as
Executive Vice President and Vice President--Leasing & Marketing. He is a
member of the National Realty Committee and the Urban Land Institute, and
is a trustee of the El Segundo Employers Association, and a past trustee of
Viewpoint School, the Jefferson Center For Character Education and the
National Fitness Foundation.
JEFFREY C. HAWKEN, age 37, has been responsible for the management and
operations of KI's real estate portfolio. Mr. Hawken's activities have
included leasing, asset and facility management, with an emphasis on
quality of service, operational cost reduction and code compliance. He has
also served on KI's acquisitions and executive committees. Mr. Hawken
joined KI in 1980, as a Senior Financial Analyst, and has been involved in
property and asset management with the Company since May 1983. Since that
time,
118
<PAGE>
he attained the designation of Real Property Administrator (RPA) through
the Building Owner's and Manager's Association (BOMA).
CAMPBELL HUGH GREENUP, age 43, has over 14 years of experience in the
real estate industry.Mr. Greenup joined KI in 1986 as Assistant General
Counsel and had responsibility for a significant portion of the Company's
legal affairs, including transaction negotiation and documentation. In
addition, he has been responsible for all the Company's development
activities, including land acquisition and entitlement, project
development, leasing and disposition. In this role, he was also President
of Kilroy Technologies Company, LLC, the Kilroy services entity, and
directed all of the Company's fee development activities. Mr. Greenup is a
member of the American Bar Association, the Urban Land Institute-IOPC Gold
Committee, the National Association of Corporate Real Estate Executives and
the Los Angeles County Beach Advisory Commission.
RICHARD E. MORAN JR., age 45, was Executive Vice President, Chief
Financial Officer and Secretary of the Irvine Apartment Communities, Inc.
from 1993 to 1996. Mr. Moran was affiliated with The Irvine Company from
1977 to 1993. He served as Treasurer of The Irvine Company from 1983 to
1993, was named Vice President in 1984, Senior Vice President in 1990, and
Executive Vice President Corporate Finance in 1992. Previously, he was a
certified public accountant with Coopers & Lybrand. He is a member of the
Urban Land Institute. Mr. Moran received his Master of Business
Administration degree from the Harvard University Graduate School of
Business Administration and his undergraduate degree from Boston College.
A. CHRISTIAN KROGH, age 48, has over 20 years of experience in the real
estate industry. Mr. Krogh joined KI in 1990 as Treasurer and was
responsible for all cash flow forecasting, preparing variance reports,
monitoring short-term cash needs and investments, interfacing with lenders,
performing credit analysis for prospective tenants, interfacing with asset
management on the day-to-day activities of the Company, as well as other
traditional treasurer's functions. Mr. Krogh also was responsible for
overseeing KI's personnel functions, obtaining and monitoring property
insurance and coordinating employee benefit programs. In the 15 years prior
to joining KI Mr. Krogh held similar positions with two other real estate
companies.
WILLIAM P. DICKEY, age 53, has agreed to serve as a member of the Board
of Directors of the Company commencing upon the consummation of the
Offering. Mr. Dickey has been the president of The Dermot Company, Inc., a
real estate investment and management company since 1990. From 1986 to
1990,Mr. Dickey was a managing director of real estate for CS First Boston
Corporation. Prior to 1986, Mr. Dickey was a partner at the New York law
firm of Cravath, Swaine & Moore, where he started as an associate beginning
in 1974. Mr. Dickey is a member of the board of directors of Horizon Group,
Inc., a REIT which invests primarily in factory outlet centers, Price
Enterprises, Inc., a REIT which invests primarily in shopping centers, and
Mezzanine Capital Property Investors, Inc., a REIT which invests primarily
in the East Coast office/mixed use space, and is a member of the board of
trustees of Retail Property Trust, a REIT which invests primarily in
regional malls. Mr. Dickey received his undergraduate degree from the
United States Air Force Academy, his Masters Degree from Georgetown
University and his Juris Doctor Degree from Columbia Law School.
MATTHEW J. HART, age 44, has agreed to serve as a member of the Board of
Directors of the Company commencing upon the consummation of the Offering.
Mr. Hart joined Hilton Hotels Corporation in 1996 and is its Executive Vice
President and Chief Financial Officer. Mr. Hart is primarily responsible
for Hilton's corporate finance and development activities. Prior to joining
Hilton, Mr. Hart was Senior Vice President and Treasurer of The Walt Disney
Company from 1995 to 1996. From 1981 to 1995, Mr. Hart was employed by Host
Marriott Corporation (formerly known as Marriott Corporation), most
recently as its Executive Vice President and Chief Financial Officer. He
was responsible for the company's corporate and project financing
activities, as well as the corporate control and the corporate tax
functions. Before joining Marriott Corporation, Mr. Hart had been a lending
officer with Bankers Trust Company in New York. Mr. Hart is a member of the
board of directors of First Washington Realty Trust, Inc., a REIT which
invests
119
<PAGE>
primarily in retail properties. Mr. Hart received his undergraduate degree
from Vanderbilt University and a Masters of Business Administration from
Columbia University.
DALE F. KINSELLA, age 48, has agreed to serve as a member of the Board of
Directors of the Company commencing upon the consummation of the Offering.
For the past eight years, Mr. Kinsella has been a partner with the Los
Angeles law firm of Kinsella, Boesch, Fujikawa & Towle. Mr. Kinsella
received his undergraduate degree from the University of Santa Barbara and
his Juris Doctor Degree from the University of California at Los Angeles.
COMMITTEES OF THE BOARD OF DIRECTORS
Audit Committee. Promptly following the consummation of the Offering, the
Board of Directors will establish an audit committee (the "Audit Committee").
The Audit Committee will be established to make recommendations concerning the
engagement of independent public accountants, review with the independent
public accountants the scope and results of the audit engagement, approve
professional services provided by the independent public accountants, review
the independence of the independent public accountants, consider the range of
audit and non-audit fees and review the adequacy of the Company's internal
accounting controls. The Audit Committee will initially consist of two or more
Independent Directors.
Independent Committee. Promptly following the consummation of the Offering,
the Board of Directors will establish an independent committee (the
"Independent Committee") consisting solely of Independent Directors. The
Independent Committee will be established to approve transactions between the
Company and John B. Kilroy, Sr. or John B. Kilroy, Jr. and their respective
affiliates.
Executive Committee. Promptly following the consummation of the Offering,
the Board of Directors will establish an executive committee (the "Executive
Committee"). Subject to the Company's conflict of interest policies, the
Executive Committee will be granted the authority to acquire and dispose of
real property and the power to authorize, on behalf of the full Board of
Directors, the execution of certain contracts and agreements, including those
related to the borrowing of money by the Company (and, consistent with the
Partnership Agreement of the Operating Partnership, to cause the Operating
Partnership to take such actions.) The Executive Committee will include John
B. Kilroy, Sr., John B. Kilroy, Jr. and at least one Independent Director.
Executive Compensation Committee. Promptly following the consummation of the
Offering, the Board of Directors will establish an executive compensation
committee (the "Executive Compensation Committee") to establish remuneration
levels for executive officers of the Company and implementation of the
Company's Stock Incentive Plan (as defined) and any other incentive programs.
The Executive Compensation Committee will initially consist of two or more
Independent Directors.
The membership of the committees of the Board of Directors will be
established after the completion of the Formation Transactions and the
Offering. The Board of Directors may from time to time establish certain other
committees to facilitate the management of the Company.
COMPENSATION OF DIRECTORS
The Company intends to pay its Independent Directors annual compensation of
$12,000 for their services. In addition, Independent Directors will receive
$1,000 for each committee meeting chaired by such director. Independent
Directors also will be reimbursed for reasonable expenses incurred to attend
director and committee meetings. Officers of the Company who are directors
will not be paid any director's fees. Each Independent Director will receive,
upon initial election to the Board of Directors, an option to purchase 10,000
shares of Common Stock which will vest pro rata in annual installments over a
three-year period. Each Independent Director also will receive an option to
purchase 1,000 shares of Common Stock on each anniversary of his election to
the Board of Directors, which options also will vest pro rata in annual
installments over a three-year period. All stock options will be issued
pursuant to the Stock Incentive Plan at an exercise price equal to or greater
than the fair market value of the Common Stock at the date of grant.
120
<PAGE>
EXECUTIVE COMPENSATION
Since the Company has no operating history, meaningful individual
compensation information for executive officers is not available for prior
periods. The compensation table below sets forth the annual base salary rates
and other compensation expected to be paid in 1997 to the Chief Executive
Officer and the Company's other executive officers who are expected to have a
total annual salary and bonus in excess of $100,000. The Company has entered
into employment agreements with certain of its executive officers as described
below. See "--Employment Agreements."
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
-----------------------------
ANNUAL COMPENSATION RESTRICTED SECURITIES
NAME AND PRINCIPAL ------------------- STOCK UNDERLYING
POSITION YEAR(1) SALARY BONUS AWARD(S) OPTIONS/SARS(2)
------------------ ------- ---------- --------- ---------- ---------------
<S> <C> <C> <C> <C> <C>
John B. Kilroy, Jr. .... 1997 $200,000 $ (3) -- 250,000
Director, President and
Chief Executive Officer
Jeffrey C. Hawken....... 1997 175,000 (3) -- 150,000
Executive Vice
President and
Chief Operating Officer
Richard E. Moran Jr. ... 1997 200,000 (3) $2,249,000(4) 150,000
Executive Vice
President,
Chief Financial Officer
and Secretary
Campbell Hugh Greenup... 1997 165,000 (3) -- 100,000
General Counsel
</TABLE>
- --------
(1) Amounts given are annualized projections for the year ending December 31,
1997.
(2) Options to purchase an aggregate of 900,000 shares of Common Stock will be
granted to directors, executive officers and other employees of the
Company upon consummation of the Offering. Such options will vest pro rata
in annual installments over a three-year-period. An additional 500,000
shares of Common Stock will be reserved for issuance under the Stock
Incentive Plan. See "--Stock Incentive Plan."
(3) Under the terms of each executive officer's respective employment
agreement, each executive officer is entitled to receive an annual bonus
in an amount up to 100% of such executive's base salary. The amount of any
such bonus will be determined by the Executive Compensation Committee of
the Board of Directors. In addition, Mr. Moran will receive a bonus of
$200,000 if the Offering is consummated on or before June 30, 1997. Mr.
Moran's bonus payable upon consummation of the Offering is an obligation
of the principals of KI. See "--Employment Agreements."
(4) Pursuant to Mr. Moran's employment agreement, concurrent with the
consummation of the Offering he will receive 100,000 restricted shares of
Common Stock under the Stock Incentive Plan with an aggregate value of
$2.25 million (assuming a per share value equal to the assumed initial
public offering price of $22.50 per share) against the payment of $1,000
therefor. The restricted stock will vest in equal annual installments pro
rata over a three-year period, subject to certain acceleration provisions.
See "Management--Employment Agreements." Mr. Moran will be entitled to
receive distributions in respect of such restricted stock.
EMPLOYMENT AGREEMENTS
Each of John B. Kilroy, Jr., Jeffrey C. Hawken, Richard E. Moran Jr. and
Campbell Hugh Greenup will enter into an employment agreement with the Company
which will be effective as of the consummation of the Offering. The employment
agreements will have an initial term of three years and will be subject to
automatic one-year extensions following the expiration of the initial term.
The employment agreements provide for annual base compensation in the amounts
set forth in the Executive Compensation table with the amount of any bonus to
be determined by the Executive Compensation Committee, up to 100% of the
applicable annual base compensation. Under the terms of his employment
agreement, Mr. Moran will receive a bonus of $200,000 if the Offering is
consummated on or before June 30, 1997. Mr. Moran's bonus payable upon
consummation of the Offering is an obligation of the principals of KI.
121
<PAGE>
The employment agreements entitle the executives to participate in the
Company's Stock Incentive Plan (each executive will initially be allocated the
number of stock options and/or restricted stock set forth in the Executive
Compensation table) and to receive certain other insurance benefits. The
employment agreements also provide that in the event of death, the executive's
estate will receive monthly payments of the executive's annual salary, plus
one-twelfth of any bonus to be received, for a period equal to the lesser of
the term remaining under the employment agreement or one year. In addition, in
the event of a termination by the Company without "cause," a termination of
employment resulting from "disability," a termination by the executive for
"good reason," or, in the case of Mr. Kilroy and Mr. Moran, a termination
pursuant to a "change of control" of the Company (as such terms are defined in
the respective employment agreements), the terminated executive will be
entitled to (i) severance (the "Severance Amount") and (ii) continued receipt
of certain benefits including medical insurance, life and disability insurance
and the receipt of other customary benefits established by the Company for its
executive employees for two years following the date of termination
(collectively, the "Severance Benefits"). The Severance Amount is equal to the
sum of two times the executive's average annual base compensation and two
times the highest annual bonus received during the preceding 36-month period.
"Disability" means a physical or mental disability or infirmity which, in the
opinion of a physician selected by the Board of Directors, renders the
executive unable to perform his duties for six consecutive months or for
shorter periods aggregating 180 business days in any twelve-month period (but
only to the extent that such definition does not violate the Americans with
Disabilities Act). "Cause," as defined under the terms of the respective
employment agreements, means (a) the executive's conviction for commission of
a felony or a crime involving moral turpitude, (b) the executive's willful
commission of any act of theft, embezzlement or misappropriation against the
Company; or (c) the executive's willful and continued failure to substantially
perform the executive's duties (other than such failure resulting from the
executive's incapacity due to physical or mental illness), which is not
remedied within a reasonable time. "Good reason" means (a) the Company's
material breach of any of its obligations under the employment agreement
(subject to certain notice and cure provisions) or (b) any removal of the
executive from one or more of the appointed offices or any material alteration
or diminution in the executive's authority, duties or responsibilities,
without "cause" and without the executive's prior written consent. "Change of
Control" means (a) the event by which the individuals constituting the board
of directors as of the date of the Company's initial public offering of Common
Stock cease for any reason to constitute at least a majority of the Company's
board of directors; provided, however, that if the election, or nomination for
election by the Company's stockholders of any new director was approved by a
vote of at least a majority of the members of the original board of directors,
such new director shall be considered a member of the original board of
directors, (b) an acquisition of any voting securities of the Company by any
"person" (as the term "person" is used for purposes of Section 13(d) or
Section 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) immediately after which such person has "beneficial
ownership" (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 20% or more of the combined voting power of the Company's then
outstanding voting securities unless such acquisition was approved by a vote
of at least one more than a majority of the original board of directors; or
(c) approval by the stockholders of the Company of (i) a merger,
consolidation, share exchange or reorganization involving the Company, unless
the stockholders of the Company, immediately before such merger,
consolidation, share exchange or reorganization, own, directly or indirectly
immediately following such merger, consolidation, share exchange or
reorganization, at least 80% of the combined voting power of the outstanding
voting securities of the corporation that is the successor in such merger,
consolidation, share exchange or reorganization in substantially the same
proportion as their ownership of the voting securities immediately before such
merger, consolidation, share exchange or reorganization; (ii) a complete
liquidation or dissolution of the Company; or (iii) an agreement for the sale
or other disposition of all or substantially all of the assets of the Company.
STOCK INCENTIVE PLAN
The Company has established the Stock Incentive Plan to enable executive
officers, key employees and directors of the Company, the Operating
Partnership and the Services Company to participate in the ownership of the
Company. The Stock Incentive Plan is designed to attract and retain executive
officers, other key employees and directors of the Company, the Operating
Partnership and the Services Company and to provide incentives to such persons
to maximize the Company's cash flow available for distribution. The Stock
Incentive
122
<PAGE>
Plan provides for the award to such executive officers and employees of the
Company, the Operating Partnership and the Services Company (subject to the
Ownership Limit, or such other limit as provided in the Company's Articles of
Incorporation or as otherwise permitted by the Board of Directors) of a broad
variety of stock-based compensation alternatives such as nonqualified stock
options, incentive stock options, restricted stock and stock appreciation
rights, and provides for the grant to Independent Directors and directors of
the Services Company (subject to the Ownership Limit, or such other limit as
provided in the Company's Articles of Incorporation or as otherwise permitted
by the Board of Directors) of nonqualified stock options.
Stock Options. Promptly after the closing of the Offering, the Company
expects to issue to certain officers, directors and key employees of the
Company, the Operating Partnership and the Services Company options to
purchase, subject to the Ownership Limit, or such other limit as provided in
the Company's Articles of Incorporation or as otherwise permitted by the Board
of Directors, 900,000 shares of Common Stock pursuant to the Stock Incentive
Plan. The term of each of such option will be ten years from the date of
grant. Each such option will vest 33 1/3% per year over three years and is
exercisable at a price per share equal to the initial public offering price
per share of Common Stock in the Offering. The following table below sets
forth the expected allocation of the options to such persons.
<TABLE>
<CAPTION>
NAME OPTIONS
---- -------
<S> <C>
John B. Kilroy, Sr................................................. 15,000
John B. Kilroy, Jr................................................. 250,000
Jeffrey C. Hawken.................................................. 150,000
Richard E. Moran Jr. .............................................. 150,000
Campbell Hugh Greenup.............................................. 100,000
Independent Directors (as a group)................................. 30,000
Other employees (as a group)....................................... 205,000
</TABLE>
An additional 500,000 shares of Common Stock will be reserved for issuance
under the Stock Incentive Plan. There is no limit on the number of awards that
may be granted to any one individual so long as the (i) aggregate fair market
value (determined at the time of grant) of shares with respect to which an
incentive stock option is first exercisable by an optionee during any calendar
year cannot exceed $100,000, (ii) the grant does not violate the Ownership
Limit or cause the Company to fail to qualify as a REIT for federal income tax
purposes and (iii) the maximum number of shares of Common Stock for which
stock options and stock appreciation rights may be issued during any fiscal
year to any participant in the Stock Incentive Plan shall not exceed 300,000.
See "Description of Capital Stock--Restrictions on Ownership and Transfer." To
the extent permitted by the foregoing, the option grants shown in the above
table will include incentive stock options.
Restricted Stock. Restricted stock may be sold to participants at various
prices (but not below par value) and made subject to such restrictions as may
be determined by the Executive Compensation Committee. Restricted stock,
typically, may be repurchased by the Company at the original purchase price if
the conditions or restrictions are not met. In general, restricted stock may
not be sold, or otherwise transferred or hypothecated, until restrictions are
removed or expire. Purchasers of restricted stock will have voting rights and
will receive distributions prior to the time when the restrictions lapse. The
Company will issue 100,000 restricted shares of Common Stock reserved for
issuance under the Stock Incentive Plan, to Richard E. Moran Jr. upon
consummation of the Offering.
Administration of the Stock Incentive Plan. The Stock Incentive Plan is
administered by the Board of Directors and/or the Executive Compensation
Committee. No person is eligible to serve on the Executive Compensation
Committee unless such person is then an Independent Director. The Committee
has complete discretion to determine (subject to (a) the Ownership Limit
contained in the Articles of Incorporation of the Company and (b) a limit
against granting options or stock appreciation rights for more than 300,000
shares to any person in any fiscal year) which eligible individuals are to
receive option or other stock grants, the number of shares subject to each
such grant, the status of any granted option as either an incentive option or
a non-qualified stock option under the federal tax laws, the exercise schedule
to be in effect for the grant, the maximum term for which any granted option
is to remain outstanding and subject to the specific terms of the Stock
Incentive Plan, any other terms of the grant.
123
<PAGE>
Eligibility. All employees of the Company may, at the discretion of the
Executive Compensation Committee, be granted incentive and non-qualified stock
options to purchase shares of Common Stock at any exercise price not less than
100% of the fair market value of such shares on the grant date. Directors of
the Company, employees of the Operating Partnership, employees and directors
of the Services Company, consultants and other persons who are not regular
salaried employees of the Company are not eligible to receive incentive stock
options, but are eligible to receive non-qualified stock options. In addition,
all employees and consultants of the Company, the Operating Partnership and
the Services Company are eligible for awards of restricted stock and grants of
stock appreciation rights.
Number of Shares Subject to Stock Incentive Plan. The Company has reserved
up to 1,500,000 shares of Common Stock for issuance pursuant to the Stock
Incentive Plan, 100,000 of which will be issued, and options covering 900,000
of which will be granted, under the Stock Incentive Plan upon the consummation
of the Offering.
Purchase Price of Shares Subject to Options. The price of the shares of
Common Stock subject to each option shall be set by the Executive Compensation
Committee; provided, however, that the price per share of an option shall be
not less than 100% of the fair market value of such shares on the date such
option is granted; provided, further, that, in the case of an incentive stock
option, the price per share shall not be less than 110% of the fair market
value of such shares on the date such option is granted in the case of an
individual then owning (within the meaning of Section 424(d) of the Code) more
than ten percent of the total combined voting power of all classes of stock of
the Company, any subsidiary or any parent corporation ("greater than 10%
stockholders").
Non-Assignability. Options may be transferred only by will or by the laws of
descent and distribution. During a participant's lifetime, options are
exercisable only by the participant.
Terms and Exercisability of Options. Unless otherwise determined by the
Board of Directors or the Executive Compensation Committee, all options
granted under the Stock Incentive Plan are subject to the following
conditions: (i) options will be exercisable in installments, on a cumulative
basis, at the rate of thirty-three and one-third percent (33 1/3%) each year
beginning on the first anniversary of the date of the grant of the option,
until the options expire or are terminated, and (ii) following an optionee's
termination of employment, the optionee shall have the right to exercise any
outstanding vested options for a specified period.
Options are not assignable or transferable by the optionee except by will or
the laws of inheritance following the optionee's death. The optionee has no
stockholder rights with respect to the shares subject to his or her
outstanding options until such options are exercised and the purchase price is
paid for the shares.
To the extent that the aggregate fair market value of stock with respect to
which "incentive stock options" (within the meaning of Section 422 of the
Code, but without regard to Section 422(d) of the Code) are exercisable for
the first time by an optionee during any calendar year (under the Stock
Incentive Plan and all other incentive stock option plans of the Company, any
subsidiary and any parent corporation) exceeds $100,000, such options shall be
taxed as non-qualified stock options. The rule set forth in the preceding
sentence shall be applied by taking options into account in the order in which
they were granted. For this purpose, the fair market value of stock shall be
determined as of the time that the option with respect to such stock is
granted.
Options are exercisable in whole or in part by written notice to the
Company, specifying the number of shares being purchased and accompanied by
payment of the purchase price for such shares. The option price may be paid:
(i) in cash or by certified or cashier's check payable to the order of the
Company, (ii) by delivery of shares of Common Stock of the Company already
owned by, and in the possession of, the optionee or (iii) if authorized by the
Board of Directors or the Executive Compensation Committee or if specified in
the option agreement for the option being exercised, by a recourse promissory
note made by the optionee in favor of the Company or through installment
payments to the Company.
On the date the option price is to be paid, the optionee (or his or her
successor) must make full payment to the Company of all amounts that must be
withheld by the Company for federal, state or local tax purposes.
124
<PAGE>
Termination of Employment; Death or Permanent Disability. If a holder of an
option ceases to be employed by the Company for any reason other than the
optionee's death or permanent disability, such optionee's stock option shall
expire three months after the date of such cessation of employment unless by
its terms it expires sooner; provided, however, that during such period after
cessation of employment, such stock option may be exercised only to the extent
it was exercisable according to such option's terms on the date of cessation
of employment. If an optionee dies or becomes permanently disabled while the
optionee is employed by the Company, such optionee's option shall expire
twelve months after the date of such optionee's death or permanent disability
unless by its terms it expires sooner. During such period after death, such
stock option may, to the extent it remains unexercised upon the date of such
death, be exercised by the person or persons to whom the optionee's rights
under such stock option are transferred under the laws of descent and
distribution.
Acceleration of Exercisability. In the event that the Company is acquired by
merger, consolidation or asset sale, each outstanding option which is not to
be assumed by the successor corporation or replaced with a comparable option
to purchase shares of the capital stock of the successor corporation will, at
the election of the Board of Directors (or if so provided in an option or
other agreement with an optionee), automatically accelerate in full.
Adjustments. In the event any change is made to the Common Stock issuable
under the Stock Incentive Plan by reason of any recapitalization, stock
dividend, stock split, combination of shares, exchange of shares or other
change in corporate structure effected without the Company's receipt of
consideration, appropriate adjustment will be made to (i) the maximum number
and class of shares issuable under the Stock Incentive Plan and (ii) the
number and/or class of shares and price per share in effect under each
outstanding option.
Amendments to the Stock Incentive Plan. The Board of Directors may at any
time suspend or terminate the Stock Incentive Plan. The Board of Directors or
Executive Compensation Committee may also at any time amend or revise the
terms of the Stock Incentive Plan, provided that no such amendment or revision
shall, unless appropriate stockholder approval of such amendment or revision
is obtained, (i) increase the maximum number of shares which may be acquired
pursuant to options granted under the Stock Incentive Plan (except for
adjustments as described in the foregoing paragraph) or (ii) change the
minimum purchase price required under the Stock Incentive Plan.
Termination. The Stock Incentive Plan will terminate ten years from the date
the Offering is consummated, unless sooner terminated by the Board of
Directors.
Registration Statement on Form S-8. After the consummation of the Offering,
the Company expects to cause to be filed with the Securities and Exchange
Commission a Registration Statement on Form S-8 covering the restricted shares
of Common Stock and the shares of Common Stock underlying options granted
under the Stock Incentive Plan.
FEDERAL INCOME TAX CONSEQUENCES TO PARTICIPANTS IN THE STOCK INCENTIVE PLAN
The following summary of the material federal income tax consequences to
participants in the Stock Incentive Plan is based on current law, is for
general information only and is not tax advice. The summary does not purport
to discuss all aspects of federal income taxation that may be relevant to a
particular participant in light of such participant's personal investment
circumstances.
A participant may be subject to state or local taxation in various state or
local jurisdictions in which he or she works or resides. State and local tax
treatment of the participants are not discussed in this summary, and such
state and local tax treatment may not conform to the federal income tax
consequences discussed in this summary.
Non-Qualified Stock Options. A participant who is granted non-qualified
stock options does not realize income as a result of the grant of such
options. However, the participant normally realizes compensation income at the
time the options are exercised, in the amount by which the fair market value
of the Common Stock on the date the options are exercised exceeds the option
exercise price paid. This compensation income is taxable at
125
<PAGE>
ordinary income rates, and the Company is required to withhold taxes on the
amount treated as ordinary income to the participant.
The participant's tax basis for Common Stock acquired upon the exercise of a
non-qualified stock option is the price paid to exercise the option plus the
amount of ordinary income realized by the participant as a result of the
exercise of the option. Any appreciation in the value of such Common Stock may
qualify for capital gains treatment, provided that applicable holding period
requirements are satisfied.
The tax consequences resulting from a participant's exercise of non-
qualified options by surrendering Common Stock already owned by the
participant are not completely certain. In published rulings, the Internal
Revenue Service (the "IRS") has taken the position that, to the extent that
the number of shares acquired is equivalent to the number of shares
surrendered, the participant recognizes no gain and the participant's basis in
the shares acquired upon such exercise is equal to the participant's basis in
the surrendered shares, that any additional shares acquired upon such exercise
is compensation to the participant taxable under the rules described above,
and that the participant's basis in any such additional shares will be their
fair market value.
Incentive Stock Options. A participant who is granted incentive stock
options is not treated as having received taxable income upon either the grant
or the exercise of the options. Instead, such participant is taxed at the time
of the sale or other taxable disposition of the Common Stock acquired pursuant
to the exercise of the option. Generally, such participants pay taxes at long-
term capital gains rates on the difference between the amount realized on the
sale or other disposition of the shares and the option exercise price. To
qualify for such capital gains treatment, the participant (i) must not sell or
dispose of the shares earlier than two years from the date of grant of the
incentive stock option or one year from the date of transfer of the shares to
the participant upon exercise, and (ii) must be an employee of the Company at
all times during the period beginning with the date of the grant of the option
and ending three months before the date of exercise. If the shares of stock
are sold or otherwise disposed of before the end of the one-year period or the
two-year period, a portion of the gain, if any, may be treated as compensation
taxable as ordinary income rather than as capital gain.
The tax consequences resulting from a participant's exercise of incentive
stock options by surrendering shares of Common Stock already owned by the
participant are not completely certain. In published rulings and proposed
regulations, the IRS has taken the position that generally the participant
recognizes no income upon such stock-for-stock exercise, that to the extent
that the number of shares acquired is equivalent to the number of shares
surrendered, the participant's basis in the shares acquired upon such exercise
is equal to the participant's basis in the surrendered shares increased by any
compensation income recognized by the participant, that the participant's
basis in any additional shares acquired by such exercise is zero, and that any
sale or other disposition of the acquired shares within the one-year period or
the two-year period described above is viewed as a disposition of the shares
with the lowest basis first.
Alternative minimum tax must be paid when it exceeds a taxpayer's regular
federal income tax. Alternative minimum tax is calculated based on alternative
minimum taxable income, which is taxable income for federal income tax
purposes, modified by certain adjustments and increased by tax preference
items. For purposes of the foregoing, the difference between the exercise
price and the fair market value of shares of Common Stock acquired pursuant to
the exercise of an incentive stock option is classified as alternative minimum
taxable income for the year of exercise. For alternative minimum tax purposes
(but not for regular income tax purposes), the participant's basis in the
acquired shares is the fair market value of the shares at the time the
incentive stock option is exercised. A disqualifying disposition of the
acquired shares during the same year in which the incentive stock option was
exercised will cancel the alternative minimum taxable income generated upon
exercise of the incentive stock option. Should there be a disqualifying
disposition in a year other than the year of exercise, the income on the
disqualifying disposition will not be considered income for alternative
minimum tax purposes.
126
<PAGE>
FEDERAL INCOME TAX CONSEQUENCES TO THE COMPANY
The following summary of the material federal income tax consequences to the
Company is based on current law, is for general information only and is not
tax advice.
Section 162(m) Limitation. Subject to a limited number of exceptions,
Section 162(m) of the Code denies a deduction to a publicly held corporation
for payments of remuneration to certain employees to the extent the employee's
remuneration for the taxable year exceeds $1,000,000. For this purpose,
remuneration attributable to stock options is included within the $1,000,000
limitation. However, to the extent that the remuneration is payable solely on
account of the attainment of one or more performance goals and certain other
procedural requirements are met, then such remuneration is not subject to the
$1,000,000 limitation.
The Company has attempted to structure the Stock Incentive Plan in such a
manner that the remuneration attributable to the stock options will not be
subject to the $1,000,000 limitation. The Company has not, however, requested
a ruling from the IRS or an opinion of counsel regarding this issue.
Non-Qualified Stock Options. Subject to the limitations set forth in Code
Section 162(m) and discussed above, the Company is entitled to deduct from its
taxable income the amount that the participant is required to include in
ordinary income at the time of such inclusion.
Incentive Stock Options. The Company is not entitled to any deduction on
account of the grant of the incentive stock options or the participant's
exercise of the option to acquire Common Stock. However, in the event of a
subsequent disqualifying disposition of such shares under circumstances
resulting in taxable compensation to the participant, subject to the
limitations set forth in Code Section 162(m) and discussed above, the Company
is entitled to a tax deduction equal to the amount treated as taxable
compensation to the participant.
SECTION 401(K) PLAN
Effective upon the consummation of the Offering, the Company intends to
establish the Company's Section 401(k) Savings/Retirement Plan (the "Section
401(k) Plan") to cover eligible employees of the Company and any designated
affiliate.
The Section 401(k) Plan will permit eligible employees of the Company to
defer up to 15% of their annual compensation, subject to certain limitations
imposed by the Code. The employees' elective deferrals are immediately vested
and non-forfeitable upon contribution to the Section 401(k) Plan. The Company
currently does not intend to make matching contributions to the Section 401(k)
Plan; however, it reserves the right to make matching contributions or
discretionary profit sharing contributions in the future.
INDEMNIFICATION
For a description of the limitation of liability and indemnification rights
of the Company's officers and directors, see "Certain Provisions of Maryland
Law and of the Company's Articles of Incorporation and Bylaws--Limitation of
Directors' and Officers' Liability" and "--Indemnification Agreements."
127
<PAGE>
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Certain directors and executive officers of the Company (or members of their
immediate families) and persons who will hold more than 5% of the outstanding
shares of Common Stock (or interests exchangeable therefor) have direct or
indirect interests in transactions which have been or will be consummated by
the Company, the Operating Partnership or the Services Company, including the
transfer of certain Properties to the Operating Partnership by the Continuing
Investors, the grant of options with respect to the Excluded Properties and,
if exercised, the purchase by the Company of one or more of the Excluded
Properties from the respective Continuing Investors, the repayment of certain
indebtedness encumbering the Properties and the performance of management and
leasing activities by the Operating Partnership and certain development and
other activities by the Services Company at the Excluded Properties. See
"Formation Transactions." In addition, John B. Kilroy, Sr. has contributed
$1,000 to the Company in exchange for an aggregate of 50 shares of Common
Stock, and upon consummation of the Offering, John B. Kilroy, Jr. and John B.
Kilroy, Sr. each will have contributed cash to the Services Company, which,
upon consummation of the Offering and the Formation Transactions, will
represent a 5.0% economic interest in the Services Company.
PARTNERSHIP AGREEMENT
Concurrently with the completion of the Offering, the Company will enter
into the Partnership Agreement of the Operating Partnership with the various
limited partners of the Operating Partnership. See "Partnership Agreement of
Operating Partnership." John B. Kilroy, Sr. and John B. Kilroy, Jr., who are
limited partners of the Operating Partnership, are directors and/or officers
of the Company.
ASSIGNMENT OF LEASE; VARIOUS SERVICES PROVIDED BY THE SERVICES COMPANY TO THE
KILROY GROUP
Concurrently with the completion of the Offering, KI will assign to the
Operating Partnership all of its interest as a tenant in a lease with a
partnership affiliated with the Continuing Investors covering the space
currently serving as the headquarters of KI at Kilroy LAX in El Segundo,
California. The Company, the Operating Partnership and the Services Company
will occupy such space, with the Company and the Services Company subleasing
some of such space from the Operating Partnership and paying rent to the
Operating Partnership therefor, at rates which the Company believes are equal
to the fair rental value of the space.
Pursuant to management agreements, the Operating Partnership will provide
management and leasing services, and the Services Company will provide
development services, with respect to the Excluded Properties, each of which
is beneficially owned and controlled by John B. Kilroy, Sr. and John B.
Kilroy, Jr., for fees equivalent to the fair market value of such services.
See "Business and Properties--Development, Management and Leasing--Excluded
Properties."
BENEFITS OF THE FORMATION TRANSACTIONS TO CERTAIN EXECUTIVE OFFICERS
In connection with the Formation Transactions, John B. Kilroy, Sr., Chairman
of the Company's Board of Directors, will receive Units, the repayment of a
personal loan and the termination of guarantees of loans secured by certain of
the Properties. Also in connection with the Formation Transactions, John B.
Kilroy, Jr. will receive Units, as well as the termination of guarantees of
loans secured by certain of the Properties and certain benefits under his
employment agreement with the Company. See "Use of Proceeds". In addition,
each of John B. Kilroy, Sr. and John B. Kilroy, Jr. own and control Kilroy
Calabasas Associates, a California limited partnership, and Kilroy Airport
Imperial Co., a California limited partnership, which, upon the exercise of
certain options by the Company, may transfer certain of the Excluded
Properties to the Operating Partnership in exchange for cash or Units. In the
event that the Independent Directors determine to cause the Company to
exercise its options to purchase these properties, John B. Kilroy, Sr. and
John B. Kilroy, Jr. will receive the consideration paid therefor. See
"Business and Properties--Development, Management and Leasing--Excluded
Properties."
128
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table sets forth the beneficial ownership of shares of Common
Stock immediately following the consummation of the Offering and the Formation
Transactions for (i) each person who is expected to be the beneficial owner of
5% or more of the outstanding Common Stock immediately following the
consummation of the Offering, (ii) directors, proposed directors and the
executive officers of the Company, and (iii) directors, proposed directors and
executive officers of the Company as a group. Except for the restricted Common
Stock owned by Mr. Moran and the 50 shares of Common Stock owned by John B.
Kilroy, Sr. (which will be repurchased upon consummation of the Offering),
none of the persons or entities listed below currently owns any shares of
Common Stock, but rather owns Units exchangeable for shares of Common Stock.
See "Partnership Agreement of the Operating Partnership--Redemption/Exchange
Rights." This table assumes that (i) the Formation Transactions and the
Offering are completed and (ii) the Underwriters' over-allotment option will
not be exercised. Each person named in the table has sole voting and
investment power with respect to all of the shares of Common Stock shown as
beneficially owned by such person, except as otherwise set forth in the notes
to the table. This table reflects the ownership interests each of the
following persons would have if each person exchanged all of his Units for
shares of Common Stock at an initial exchange ratio of one Unit for each share
of Common Stock (without regard to the Ownership Limit and the prohibition on
redemption or exchange of Units until two years after the date of the
Offering). See "Partnership Agreement of the Operating Partnership--
Redemption/Exchange Rights." Unless otherwise indicated, the address of each
named person is c/o Kilroy Realty Corporation, 2250 East Imperial Highway,
Suite 1200, El Segundo, California 90245.
<TABLE>
<CAPTION>
PERCENTAGE OF
NUMBER OF SHARES OUTSTANDING SHARES
NAME OF BENEFICIAL OWNER BENEFICIALLY OWNED(1) OF COMMON STOCK(1)(2)
------------------------ --------------------- ---------------------
<S> <C> <C>
John B. Kilroy, Sr ............ 1,252,320(3) 8.21%
John B. Kilroy, Jr. ........... 1,252,320(3) 8.21%
Jeffrey C. Hawken.............. -- --
Richard E. Moran Jr. .......... 100,000(4) 0.66%
Campbell Hugh Greenup.......... -- --
William P. Dickey.............. 2,000(5) 0.01%
Matthew J. Hart................ 5,000(5) 0.03%
Dale F. Kinsella............... -- --
All directors and executive
officers as a group
(8 persons)................... 2,586,174 17.12%
</TABLE>
- --------
(1) Includes the Units to be beneficially owned by KI which are allocated to
John B. Kilroy, Sr. and John B. Kilroy, Jr., the only shareholders of KI,
in accordance with their respective percentage ownership of KI. Excludes
options to purchase 695,000 shares of Common Stock granted to executive
officers and directors at the consummation of the Offering.
(2) Assuming exchange of the 2,652,374 Units outstanding upon consummation of
the Offering.
(3) One-half of these Units have been pledged to secure certain
indemnification obligations to the Company arising in connection with the
Formation Transactions. See "Certain Relationships and Related
Transactions."
(4) Represents 100,000 restricted shares of Common Stock granted under the
Stock Incentive Plan to Richard E. Moran Jr. pursuant to the terms of his
employment agreement, which shares will vest in three equal annual
installments over a three-year period. See "Management--Employment
Agreements."
(5) Represents shares to be purchased by the director in the Offering at the
offering price.
129
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The following summary of the terms of the Company's capital stock does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Company's Articles of Incorporation and Bylaws, copies of
which are filed as exhibits to the Registration Statement of which this
Prospectus is a part. See "Additional Information."
GENERAL
Under the Articles of Incorporation, the authorized capital stock of the
Company consists of 150,000,000 shares of Common Stock, par value $.01 per
share, and 30,000,000 shares of preferred stock, par value $.01 per share
("Preferred Stock"). Upon completion of the Offering and Formation
Transactions, there will be 12,600,000 shares of Common Stock issued and
outstanding (including 100,000 restricted shares of Common Stock granted to an
officer of the Company who is not a Continuing Investor and excluding the
1,875,000 shares which are subject to the Underwriters' over-allotment option
and shares that may be issued upon the exchange of outstanding Units), and no
shares of Preferred Stock will be issued and outstanding.
COMMON STOCK
Each outstanding share of Common Stock will entitle the holder to one vote
on all matters presented to stockholders for a vote, including the election of
directors, and, except as otherwise required by law and except as provided in
any resolution adopted by the Board of Directors with respect to any other
class or series of stock establishing the designation, powers, preferences and
relative, participating, optional or other special rights and powers of such
series, the holders of such shares will possess the exclusive voting power,
subject to the provisions of the Company's Articles of Incorporation regarding
the ownership of shares of Common Stock in excess of the Ownership Limit, or
such other limit as provided in the Company's Articles of Incorporation or as
otherwise permitted by the Board of Directors described below. Holders of
shares of Common Stock will have no conversion, exchange, sinking fund,
redemption or appraisal rights and have no preemptive rights to subscribe for
any securities of the Company or cumulative voting rights in the election of
directors. All shares of Common Stock to be issued and outstanding following
the consummation of the Offering will be duly authorized, fully paid and
nonassessable. Subject to the preferential rights of any other shares or
series of stock and to the provisions of the Articles of Incorporation
regarding ownership of shares of Common Stock in excess of the Ownership
Limit, or such other limit as provided in the Company's Articles of
Incorporation or as otherwise permitted by the Board of Directors described
below, distributions may be paid to the holders of shares of Common Stock if
and when authorized and declared by the Board of Directors of the Company out
of funds legally available therefor. The Company intends to make quarterly
distributions, beginning with distributions for the portion of the quarter
from the consummation of the Offering through March 31, 1997. See
"Distribution Policy."
Under Maryland law, stockholders are generally not liable for the Company's
debts or obligations. If the Company is liquidated, subject to the right of
any holders of Preferred Stock to receive preferential distributions, each
outstanding share of Common Stock will be entitled to participate pro rata in
the assets remaining after payment of, or adequate provision for, all known
debts and liabilities of the Company, including debts and liabilities arising
out of its status as general partner of the Operating Partnership.
Subject to the provisions of the Articles of Incorporation regarding the
ownership of shares of Common Stock in excess of the Ownership Limit, or such
other limit as provided in the Company's Articles of Incorporation or as
otherwise permitted by the Board of Directors described below, all shares of
Common Stock will have equal distribution, liquidation and voting rights, and
will have no preference or exchange rights. See "--Restrictions on Ownership
and Transfer."
Under the MGCL, a Maryland corporation generally cannot dissolve, amend its
charter, merge, sell all or substantially all of its assets, engage in a share
exchange or engage in similar transactions outside the ordinary course of
business unless approved by the affirmative vote of stockholders holding at
least two-thirds of the
130
<PAGE>
shares entitled to vote on the matter unless a lesser percentage (but not less
than a majority of all of the votes entitled to be cast on the matter) is set
forth in the corporation's charter. Under the MGCL, the term "substantially
all of the Company's assets" is not defined and is, therefore, subject to
Maryland common law and to judicial interpretation and review in the context
of the unique facts and circumstances of any particular transaction. The
Articles of Incorporation of the Company do not provide for a lesser
percentage in any such situation.
The Articles of Incorporation authorize the Board of Directors to reclassify
any unissued shares of Common Stock into other classes or series of classes of
stock and to establish the number of shares in each class or series and to set
the preferences, conversion and other rights, voting powers, restrictions,
limitations and restrictions on ownership, limitations as to dividends or
other distributions, qualifications and terms or conditions of redemption for
each such class or series.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock will be ChaseMellon
Shareholder Services.
PREFERRED STOCK
Preferred Stock may be issued from time to time, in one or more series, as
authorized by the Board of Directors. No Preferred Stock is currently issued
or outstanding. Prior to the issuance of shares of each series, the Board of
Directors is required by the MGCL and the Company's Articles of Incorporation
to fix for each series the terms, preferences, conversion or other rights,
voting powers, restrictions, limitations as to distributions, qualifications
and terms or conditions of redemption, as permitted by Maryland law. Because
the Board of Directors has the power to establish the preferences, powers and
rights of each series of Preferred Stock, it may afford the holders of any
series of Preferred Stock preferences, powers and rights, voting or otherwise,
senior to the rights of holders of shares of Common Stock. The issuance of
Preferred Stock could have the effect of delaying or preventing a change of
control of the Company that might involve a premium price for holders of
Common Stock or otherwise be in their best interest. The Board of Directors
has no present plans to issue any Preferred Stock.
RESTRICTIONS ON OWNERSHIP AND TRANSFER
Ownership Limits. For the Company to qualify as a REIT under the Code, no
more than 50% in value of its outstanding shares of stock may be owned,
actually or constructively, by five or fewer individuals (as defined in the
Code to include certain entities) during the last half of a taxable year
(other than the first year for which an election to be treated as a REIT has
been made). In addition, if the Company, or an owner of 10% or more of the
Company, actually or constructively owns 10% or more of a tenant of the
Company (or a tenant of any partnership in which the Company is a partner),
the rent received by the Company (either directly or through any such
partnership) from such tenant will not be qualifying income for purposes of
the REIT gross income tests of the Code. A REIT's stock must also be
beneficially owned by 100 or more persons during at least 335 days of a
taxable year of twelve months or during a proportionate part of a shorter
taxable year (other than the first year for which an election to be treated as
a REIT has been made).
Because the Company expects to qualify as a REIT, the Articles of
Incorporation contain restrictions on the ownership and transfer of Common
Stock which are intended to assist the Company in complying with these
requirements. The Ownership Limit set forth in the Company's Articles of
Incorporation provides that, subject to certain specified exceptions, no
person or entity may own, or be deemed to own by virtue of the applicable
constructive ownership provisions of the Code, more than 7.0% (by number or
value, whichever is more restrictive) of the outstanding shares of Common
Stock. The constructive ownership rules are complex, and may cause shares of
Common Stock owned actually or constructively by a group of related
individuals and/or entities to be constructively owned by one individual or
entity. As a result, the acquisition of less than 7.0% of the shares of Common
Stock (or the acquisition of an interest in an entity that owns, actually or
constructively, Common
131
<PAGE>
Stock) by an individual or entity, could, nevertheless cause that individual
or entity, or another individual or entity, to own constructively in excess of
7.0% of the outstanding Common Stock and thus violate the Ownership Limit, or
such other limit as provided in the Company's Articles of Incorporation or as
otherwise permitted by the Board of Directors. The Board of Directors may, but
in no event will be required to, waive the Ownership Limit with respect to a
particular stockholder if it determines that such ownership will not
jeopardize the Company's status as a REIT and the Board of Directors otherwise
decides such action would be in the best interest of the Company. As a
condition of such waiver, the Board of Directors may require an opinion of
counsel satisfactory to it and/or undertakings or representations from the
applicant with respect to preserving the REIT status of the Company. The Board
of Directors has obtained such undertakings and representations from John B.
Kilroy, Sr. and John B. Kilroy, Jr. and has waived the Ownership Limit with
respect to the actual and constructive ownership (and to any constructive
ownership of securities therefrom) of Common Stock by John B. Kilroy, Sr. and
John B. Kilroy, Jr. Consequently, John B. Kilroy, Sr., John B. Kilroy, Jr.,
members of their families and entities (including the Operating Partnership)
which are deemed to own the Kilroys' Common Stock under the constructive
ownership rules of the Code will be permitted to own, in the aggregate,
actually or constructively, up to 21% (by number of shares or value, whichever
is more restrictive) of the outstanding Common Stock. See "Description of
Capital Stock--Restrictions on Ownership and Transfer--Ownership Limits."
The Company's Articles of Incorporation further prohibits (i) any person
from actually or constructively owning shares of stock of the Company that
would result in the Company being "closely held" under Section 856(h) of the
Code or otherwise cause the Company to fail to qualify as a REIT, and (ii) any
person from transferring shares of stock of the Company if such transfer would
result in shares of stock of the Company being owned by fewer than 100
persons. Any person who acquires or attempts or intends to acquire actual or
constructive ownership of shares of stock of the Company that will or may
violate any of the foregoing restrictions on transferability and ownership is
required to give notice immediately to the Company and provide the Company
with such other information as the Company may request in order to determine
the effect of such transfer on the Company's status as a REIT. The foregoing
restrictions on transferability and ownership will not apply if the Board of
Directors determines that it is no longer in the best interest of the Company
to attempt to qualify, or to continue to qualify, as a REIT. Except as
otherwise described above, any change in the Ownership Limit would require an
amendment to the Articles of Incorporation. Amendments to the Articles of
Incorporation require the affirmative vote of holders owning at least two-
thirds of the shares of the Company's capital stock outstanding and entitled
to vote thereon.
Pursuant to the Articles of Incorporation, if any purported transfer of
Common Stock of the Company or any other event would otherwise result in any
person violating the Ownership Limit or such other limit as provided in the
Company's Articles of Incorporation or as otherwise permitted by the Board of
Directors, then any such purported transfer will be void and of no force or
effect with respect to the purported transferee (the "Prohibited Transferee")
as to that number of shares in excess of the Ownership Limit or such other
limit, and the Prohibited Transferee shall acquire no right or interest (or,
in the case of any event other than a purported transfer, the person or entity
holding record title to any such excess shares (the "Prohibited Owner") shall
cease to own any right or interest) in such excess shares. Any such excess
shares described above will be transferred automatically, by operation of law,
to a trust, the beneficiary of which will be a qualified charitable
organization selected by the Company (the "Beneficiary"). Such automatic
transfer shall be deemed to be effective as of the close of business on the
business day prior to the date of such violative transfer. Within 20 days of
receiving notice from the Company of the transfer of shares to the trust, the
trustee of the trust (who shall be designated by the Company and be
unaffiliated with the Company and any Prohibited Transferee or Prohibited
Owner) will be required to sell such excess shares to a person or entity who
could own such shares without violating the Ownership Limit, or such other
limit as provided in the Company's Articles of Incorporation or as otherwise
permitted by the Board of Directors, and distribute to the Prohibited
Transferee or Prohibited Owner an amount equal to the lesser of the price paid
by the Prohibited Transferee or Prohibited Owner for such excess shares or the
sales proceeds received by the trust for such excess shares. In the case of
any excess shares resulting from any event other than a transfer, or from a
transfer for no consideration (such as a gift), the trustee will be required
132
<PAGE>
to sell such excess shares to a qualified person or entity and distribute to
the Prohibited Owner an amount equal to the lesser of the Market Price (as
defined in the Company's Articles of Incorporation) of such excess shares as
of the date of such event or the sales proceeds received by the trust for such
excess shares. In either case, any proceeds in excess of the amount
distributable to the Prohibited Transferee or Prohibited Owner, as applicable,
will be distributed to the Beneficiary. Prior to a sale of any such excess
shares by the trust, the trustee will be entitled to receive, in trust for the
Beneficiary, all dividends and other distributions paid by the Company with
respect to such excess shares, and also will be entitled to exercise all
voting rights with respect to such excess shares. Subject to Maryland law,
effective as of the date that such shares have been transferred to the trust,
the trustee shall have the authority (at the trustee's sole discretion) (i) to
rescind as void any vote cast by a Prohibited Transferee or Prohibited Owner,
as applicable, prior to the discovery by the Company that such shares have
been transferred to the trust and (ii) to recast such vote in accordance with
the desires of the trustee acting for the benefit of the Beneficiary. However,
if the Company has already taken irreversible corporate action, then the
trustee shall not have the authority to rescind and recast such vote. Any
dividend or other distribution paid to the Prohibited Transferee or Prohibited
Owner (prior to the discovery by the Company that such shares had been
automatically transferred to a trust as described above) will be required to
be repaid to the trustee upon demand for distribution to the Beneficiary. In
the event that the transfer to the trust as described above is not
automatically effective (for any reason) to prevent violation of the Ownership
Limit or such other limit as provided in the Company's Articles of
Incorporation or as otherwise permitted by the Board of Directors, then the
Articles of Incorporation provide that the transfer of the excess shares will
be void.
In addition, shares of stock of the Company held in the trust shall be
deemed to have been offered for sale to the Company, or its designee, at a
price per share equal to the lesser of (i) the price per share in the
transaction that resulted in such transfer to the trust (or, in the case of a
devise or gift, the Market Price at the time of such devise or gift) and (ii)
the Market Price on the date the Company, or its designee, accepts such offer.
The Company shall have the right to accept such offer until the trustee has
sold the shares of stock held in the trust. Upon such a sale to the Company,
the interest of the Beneficiary in the shares sold shall terminate and the
trustee shall distribute the net proceeds of the sale to the Prohibited
Transferee or Prohibited Owner.
If any purported transfer of shares of Common Stock would cause the Company
to be beneficially owned by fewer than 100 persons, such transfer will be null
and void in its entirety and the intended transferee will acquire no rights to
the stock.
All certificates representing shares of Common Stock will bear a legend
referring to the restrictions described above. The foregoing ownership
limitations could delay, defer or prevent a transaction or a change in control
of the Company that might involve a premium price for the Common Stock or
otherwise be in the best interest of stockholders.
Under the Articles of Incorporation, every owner of a specified percentage
(or more) of the outstanding shares of Common Stock must file a completed
questionnaire with the Company containing information regarding their
ownership of such shares, as set forth in the Treasury Regulations. Under
current Treasury Regulations, the percentage will be set between 0.5% and
5.0%, depending upon the number of record holders of the Company's shares. In
addition, each stockholder shall upon demand be required to disclose to the
Company in writing such information as the Company may request in order to
determine the effect, if any, of such stockholder's actual and constructive
ownership of Common Stock on the Company's status as a REIT and to ensure
compliance with the Ownership Limit, or such other limit as provided in the
Company's Articles of Incorporation or as otherwise permitted by the Board of
Directors.
133
<PAGE>
CERTAIN PROVISIONS OF MARYLAND LAW AND OF
THE COMPANY'S ARTICLES OF INCORPORATION AND BYLAWS
The following paragraphs summarize certain provisions of the MGCL and the
Company's Articles of Incorporation and Bylaws. The summary does not purport
to be complete and is subject to and qualified in its entirety by reference to
the MGCL and the Company's Articles of Incorporation and Bylaws, copies of
which are exhibits to the Registration Statement of which this Prospectus is a
part.
BOARD OF DIRECTORS
The Company's Articles of Incorporation provide that the number of directors
of the Company shall be established by the Bylaws but shall not be less than
the minimum number required by the MGCL, which in the case of the Company is
three. The Bylaws currently provide that the Board of Directors will consist
of not fewer than five nor more than 13 members. Any vacancy (except for a
vacancy caused by removal) will be filled, at any regular meeting or at any
special meeting called for that purpose, by a majority of the remaining
directors or, in the case of a vacancy resulting from an increase in the
number of directors, by a majority of the entire Board of Directors. A vacancy
resulting from removal will be filled by the stockholders at the next annual
meeting of stockholders or at a special meeting of the stockholders called for
that purpose. The Articles of Incorporation and Bylaws provide that a majority
of the Board must be "Independent Directors." An "Independent Director" is a
director who is not an employee, officer or affiliate of the Company or a
subsidiary or division thereof, or a relative of a principal executive
officer, or who is not an individual member of an organization acting as
advisor, consultant or legal counsel, receiving compensation on a continuing
basis from the Company in addition to director's fees.
Pursuant to the Articles of Incorporation, the directors are divided into
three classes as nearly equal in size as practicable. One class will hold
office initially for a term expiring at the annual meeting of stockholders to
be held in 1998, another class will hold office initially for a term expiring
at the annual meeting of stockholders to be held in 1999 and another class
will hold office initially for a term expiring at the annual meeting of
stockholders to be held in 2000. As the term of each class expires, directors
in that class will be elected for a term of three years and until their
successors are duly elected and qualified and the directors in the other two
classes will continue in office. The Company believes that classification of
the Board of Directors will help to assure the continuity and stability of the
Company's business strategies and policies as determined by the Board of
Directors.
The classified director provision could have the effect of making the
removal of incumbent directors more time consuming and difficult, which could
discourage a third party from making a tender offer or otherwise attempting to
obtain control of the Company, even though such an attempt might be beneficial
to the Company and its stockholders. At least two annual meetings of
stockholders, instead of one, will generally be required to effect a change in
a majority of the Board of Directors. Thus, the classified board provision
could increase the likelihood that incumbent directors will retain their
positions. Holders of shares of Common Stock will have no right to cumulative
voting for the election of directors. Consequently, at each annual meeting of
stockholders, the holders of a majority of the shares of Common Stock will be
able to elect all of the successors of the class of directors whose term
expires at that meeting.
REMOVAL OF DIRECTORS
While the Company's Articles of Incorporation and the MGCL empower the
stockholders to fill vacancies in the Board of Directors that are caused by
the removal of a director, the Company's Articles of Incorporation preclude
stockholders from removing incumbent directors except upon a substantial
affirmative vote. Specifically, the Company's Articles of Incorporation
provide that a director may be removed only for cause and only by the
affirmative vote of at least two-thirds of the votes entitled to be cast in
the election of directors. Under the MGCL, the term "cause" is not defined and
is, therefore, subject to Maryland common law and to judicial interpretation
and review in the context of the unique facts and circumstances of any
particular situation.
134
<PAGE>
This provision, when coupled with the provision in the Bylaws authorizing the
Board of Directors to fill vacant directorships, precludes stockholders from
removing incumbent directors except upon a substantial affirmative vote and
filling the vacancies created by such removal with their own nominees.
BUSINESS COMBINATIONS
Under the MGCL, certain "business combinations" (including a merger,
consolidation, share exchange, or, in certain circumstances, an asset transfer
or issuance or reclassification of equity securities) between the Company and
any person who beneficially owns, directly or indirectly, 10% or more of the
voting power of the Company's shares, or an affiliate of the Company who, at
any time within the two-year period prior to the date in question, was the
beneficial owner of 10% or more of the voting power of the Company's then
outstanding shares (an "Interested Stockholder") or an affiliate thereof are
prohibited for five years after the most recent date on which the Interested
Stockholder became an Interested Stockholder. Thereafter, any such business
combination must be recommended by the Board of Directors and approved by the
affirmative vote of at least (i) 80% of the votes entitled to be cast by
holders of outstanding shares of the Company's voting stock and (ii) two-
thirds of the votes entitled to be cast by holders of outstanding shares of
the Company's voting stock other than shares held by the Interested
Stockholder with whom the business combination is to be effected, unless,
among other things, the Company's stockholders receive a minimum price (as
defined in the MGCL) for their shares of stock and the consideration is
received in cash or in the same form as previously paid by the Interested
Stockholder for its shares. These provisions of the MGCL do not apply,
however, to business combinations that are approved or exempted by the Board
of Directors prior to the time that the Interested Stockholder becomes an
Interested Stockholder. The Company's Board of Directors has resolved to opt
out of the business combinations provisions of the MGCL, and such resolutions
also require that any decision to opt back in be subject to the approval of
holders of a majority of the shares of Common Stock. As a result of the
Company's decision to opt out of the business combinations provisions of the
MGCL, an Interested Stockholder would be able to effect a "business
combination" without complying with the requirements set forth above. The
decision to opt out of the provisions may have the effect of making it easier
for stockholders who become Interested Stockholders to consummate a business
combination involving the Company. However, no assurance can be given that any
such business combination would be consummated or, if consummated, would
result in a purchase of shares of Common Stock from any stockholder at a
premium.
CONTROL SHARE ACQUISITIONS
The MGCL provides that "control shares" of the Company acquired in a
"control share acquisition" have no voting rights except to the extent
approved by a vote of two-thirds of the votes entitled to be cast on the
matter, excluding shares owned by the acquiror or by officers or directors who
are employees of the Company. "Control shares" are voting shares of stock
which, if aggregated with all other such shares of stock previously acquired
by the acquiror, or in respect of which the acquiror is able to exercise or
direct the exercise of voting power (except solely by revocable proxy), would
entitle the acquiror to exercise voting power in electing directors within one
of the following ranges of voting power: (i) one-fifth or more but less than
one-third; (ii) one-third or more but less than a majority; or (iii) a
majority of all voting power. "Control shares" do not include shares of stock
the acquiring person is then entitled to vote as a result of having previously
obtained stockholder approval. A "control share acquisition" means the
acquisition of control shares, subject to certain exceptions.
A person who has made or proposes to make a control share acquisition, upon
satisfaction of certain conditions (including an undertaking to pay expenses),
may compel the Board of Directors to call a special meeting of stockholders to
be held within 50 days of demand to consider voting rights for the shares. If
no request for a meeting is made, the Company may itself present the question
at any stockholders' meeting.
If voting rights are not approved at the stockholders' meeting or if the
acquiring person does not deliver an acquiring person statement as required by
the MGCL, then, subject to certain conditions and limitations, the Company may
redeem any or all of the control shares (except those for which voting rights
have previously
135
<PAGE>
been approved) for fair value determined, without regard to the absence of
voting rights for the control shares, as of the date of the last control share
acquisition by the acquiror or of any meeting of stockholders at which the
voting rights of such shares are considered and not approved. If voting rights
for control shares are approved at a stockholders' meeting and the acquiror
becomes entitled to vote a majority of the shares of stock entitled to vote,
all other stockholders may exercise appraisal rights. The fair value of the
shares of stock as determined for purposes of such appraisal rights may not be
less than the highest price per share paid by the acquiror in the control
share acquisition, and certain limitations and restrictions otherwise
applicable to the exercise of dissenters' rights do not apply in the context
of a control share acquisition.
The control share acquisition statute does not apply to shares acquired in a
merger, consolidation or share exchange if the Company is a party to the
transaction, or to acquisitions approved or exempted by the Company's Articles
of Incorporation or Bylaws. The Bylaws of the Company contain a provision
exempting from the control share acquisition statute any and all acquisitions
by any person of the Company's shares of stock. Although there can be no
assurance that such provision will not be amended or eliminated at any time in
the future, the Company's Board of Directors has resolved that the provision
may not be amended or eliminated without the approval of the holders of at
least a majority of the shares of Common Stock. As a result of the Company's
decision to opt out of the "control share acquisition" provisions of the MGCL,
stockholders who acquire a substantial block of Common Stock are not precluded
from exercising full voting rights with respect to their shares on all matters
without first obtaining the approval of other stockholders entitled to vote.
This may have the effect of making it easier for any such control share
stockholder to effect a business combination with the Company. However, no
assurance can be given that any such business combination would be consummated
or, if consummated, would result in a purchase of shares of Common Stock from
any stockholder at a premium.
AMENDMENT TO THE ARTICLES OF INCORPORATION AND BYLAWS
The Company's Articles of Incorporation may not be amended without the
affirmative vote of at least two-thirds of the shares of capital stock
outstanding and entitled to vote thereon voting together as a single class.
Other than provisions of the Bylaws (i) opting out of the control share
acquisition statute, (ii) requiring approval by the Independent Directors for
selection of operators of the Properties or of transactions involving John B.
Kilroy, Sr. and John B. Kilroy, Jr. and their affiliates and (iii) those
governing amendment of the Bylaws, each of which may be amended only with the
approval of a majority of the shares of capital stock entitled to vote, the
Company's Bylaws may be amended by the vote of a majority of the Board of
Directors or the shares of the Company's capital stock entitled to vote
thereon.
MEETINGS OF STOCKHOLDERS
The Company's Bylaws provide for annual meetings of stockholders, commencing
with the year 1998, to elect the Board of Directors and transact such other
business as may properly be brought before the meeting. Special meetings of
stockholders may be called by the President, the Board of Directors or the
Chairman of the Board and shall be called at the request in writing of the
holders of 50% or more of the outstanding stock of the Company entitled to
vote.
The MGCL provides that any action required or permitted to be taken at a
meeting of stockholders may be taken without a meeting by unanimous written
consent, if such consent sets forth such action and is signed by each
stockholder entitled to vote on the matter and a written waiver of any right
to dissent is signed by each stockholder entitled to notice of the meeting but
not entitled to vote at it.
ADVANCE NOTICE OF DIRECTOR NOMINATIONS AND NEW BUSINESS
The Company's Bylaws provide that (i) with respect to an annual meeting of
stockholders, nominations of persons for election to the Board of Directors
and the proposal of business to be considered by stockholders may be made only
(a) pursuant to the Company's notice of the meeting, (b) by or at the
direction of the Board of Directors or (c) by a stockholder who is entitled to
vote at the meeting and has complied with the advance notice
136
<PAGE>
procedures set forth in the Bylaws, and (ii) with respect to special meetings
of stockholders, only the business specified in the Company's notice of
meeting may be brought before the meeting of stockholders.
The provisions in the Company's Articles of Incorporation on classification
of the Board of Directors and amendments to the Articles of Incorporation and
the advance notice provisions of the Bylaws could have the effect of
discouraging a takeover or other transaction in which holders of some, or a
majority, of the shares of Common Stock might receive a premium for their
shares of Common Stock over the then prevailing market price or which such
holders might believe to be otherwise in their best interests.
DISSOLUTION OF THE COMPANY
Under the MGCL, the Company may be dissolved by (i) the affirmative vote of
a majority of the entire Board of Directors declaring such dissolution to be
advisable and directing that the proposed dissolution be submitted for
consideration at any annual or special meeting of stockholders, and (ii) upon
proper notice, stockholder approval by the affirmative vote of the holders of
two-thirds of the total number of shares of capital stock outstanding and
entitled to vote thereon voting as a single class.
LIMITATION OF DIRECTORS' AND OFFICERS' LIABILITY
The Company's officers and directors are and will be indemnified under
Maryland law, the Company's Articles of Incorporation of the Company and the
Partnership Agreement of the Operating Partnership against certain
liabilities. The Articles of Incorporation and Bylaws require the Company to
indemnify its directors and officers to the fullest extent permitted from time
to time by the laws of Maryland.
The MGCL permits a corporation to indemnify its directors and officers and
certain other parties against judgments, penalties, fines, settlements, and
reasonable expenses actually incurred by them in connection with any
proceeding to which they may be made a party by reason of their service in
those or other capacities unless it is established that (i) the act or
omission of the director or officer was material to the matter giving rise to
the proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty, (ii) the director or officer actually received an
improper personal benefit in money, property or services, or (iii) in the case
of any criminal proceeding, the director or officer had reasonable cause to
believe that the act or omission was unlawful. Indemnification may be made
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by the director or officer in connection with the
proceeding; provided, however, that if the proceeding is one by or in the
right of the corporation, indemnification may not be made with respect to any
proceeding in which the director or officer has been adjudged to be liable to
the corporation. In addition, a director or officer may not be indemnified
with respect to any proceeding charging improper personal benefit to the
director or officer in which the director or officer was adjudged to be liable
on the basis that personal benefit was received. The termination of any
proceeding by conviction, or upon a plea of nolo contendere or its equivalent,
or an entry of any order of probation prior to judgment, creates a rebuttable
presumption that the director or officer did not meet the requisite standard
of conduct required for indemnification to be permitted.
The MGCL permits the articles of incorporation of a Maryland corporation to
include a provision limiting the liability of its directors and officers to
the corporation and its stockholders for money damages, subject to specified
restrictions, and the Articles of Incorporation of the Company contain this
provision. The law does not, however, permit the liability of directors and
officers to the corporation or its stockholders to be limited to the extent
that (i) it is proved that the person actually received an improper personal
benefit in money, property or services, (ii) a judgment or other final
adjudication is entered in a proceeding based on a finding that the person's
action, or failure to act, was committed in bad faith or was the result of
active and deliberate dishonesty and was material to the cause of action
adjudicated in the proceeding or (iii) in the case of any criminal proceeding,
the director had reasonable cause to believe that the act or failure to act
was unlawful. This provision does not limit the ability of the Company or its
stockholders to obtain other relief, such as an injunction or rescission.
137
<PAGE>
The Partnership Agreement also provides for indemnification of the Company,
as general partner, and its officers and directors to the same extent
indemnification is provided to officers and directors of the Company in its
Articles of Incorporation, and limits the liability of the Company and its
officers and directors to the Operating Partnership and the partners of the
Operating Partnership to the same extent liability of officers and directors
of the Company to the Company and its stockholders is limited under the
Company's Articles of Incorporation. See "Partnership Agreement of the
Operating Partnership--Indemnification."
Insofar as indemnification for liability arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
INDEMNIFICATION AGREEMENTS
The Company will enter into indemnification agreements with each of its
executive officers and directors. The indemnification agreements will require,
among other matters, that the Company indemnify its executive officers and
directors to the fullest extent permitted by law and advance to the executive
officers and directors all related expenses, subject to reimbursement if it is
subsequently determined that indemnification is not permitted. Under the
agreements, the Company must also indemnify and advance all expenses incurred
by executive officers and directors seeking to enforce their rights under the
indemnification agreements and may cover executive officers and directors
under the Company's directors' and officers' liability insurance. Although the
form of indemnification agreement offers substantially the same scope of
coverage afforded by law, it provides greater assurance to directors and
executive officers that indemnification will be available, because, as a
contract, it cannot be modified unilaterally in the future by the Board of
Directors or the stockholders to eliminate the rights it provides.
138
<PAGE>
PARTNERSHIP AGREEMENT OF THE OPERATING PARTNERSHIP
The following summary of the Amended and Restated Agreement of Limited
Partnership of the Operating Partnership (the "Partnership Agreement") and the
descriptions of certain provisions set forth elsewhere in this Prospectus, are
qualified in their entirety by reference to the Partnership Agreement, which
is filed as an exhibit to the Registration Statement of which this Prospectus
is a part. See "Additional Information."
MANAGEMENT
The Operating Partnership is organized as a Delaware limited partnership
pursuant to the terms of the Partnership Agreement. The Company will be the
sole general partner of, and will initially hold approximately 82.6% of the
economic interests in, the Operating Partnership. The Company will conduct
substantially all of its business through the Operating Partnership, except
for development and certain other services (which will be conducted through
the Services Company) in order to preserve the Company's REIT status. The
Operating Partnership will own a 95.0% economic interest in the Services
Company. Generally, pursuant to the Partnership Agreement, the Company, as the
sole general partner of the Operating Partnership, will have full, exclusive
and complete responsibility and discretion in the management and control of
the Operating Partnership, including the ability to cause the Operating
Partnership to enter into certain major transactions including acquisitions,
dispositions and refinancings and to cause changes in the Operating
Partnership's line of business and distribution policies.
The Continuing Investors, as limited partners of the Operating Partnership,
will have no authority to transact business for, or participate in the
management activities or decisions of, the Operating Partnership, except as
provided in the Partnership Agreement and as required by applicable law.
INDEMNIFICATION
To the extent permitted by law, the Partnership Agreement provides for
indemnification of the Company, as general partner, its officers and directors
and such other persons as the Company may designate to the same extent
indemnification is provided to officers and directors of the Company in its
Articles of Incorporation, and limits the liability of the Company and its
officers and directors to the Operating Partnership to the same extent
liability of officers and directors of the Company is limited under the
Articles of Incorporation.
TRANSFERABILITY OF INTERESTS
Except for a transaction described in the following two paragraphs, the
Partnership Agreement provides that the Company may not voluntarily withdraw
from the Operating Partnership, or transfer or assign its interest in the
Operating Partnership, without the consent of the holders of at least 60% of
the partner interests (including the interests of the Company, which will
represent approximately 82.6% of the total partner interests upon consummation
of the Offering). Pursuant to the Partnership Agreement, the limited partners
have agreed not to transfer, assign, sell, encumber or otherwise dispose of,
without the consent of the Company, their interest in the Operating
Partnership, other than to family members or accredited investors who agree to
assume the obligations of the transferor under the Partnership Agreement
subject to a right of first refusal for the benefit of the Company. The
Continuing Investors are subject to additional restrictions on their ability
to transfer shares of Common Stock. See "Underwriting."
The Company may not engage in any merger, consolidation or other combination
with or into another person, sale of all or substantially all of its assets or
any reclassification, recapitalization or change of its outstanding equity
interests (each a "Termination Transaction") unless the Termination
Transaction has been approved by holders of at least 60% of the Units
(including Units held by the Company, which will represent approximately 82.6%
of all Units outstanding upon consummation of the Offering) and in connection
with which all limited partners either will receive, or will have the right to
elect to receive, for each Unit an amount of cash, securities or other
property equal to the product of the number of shares of Common Stock into
which each Unit
139
<PAGE>
is then exchangeable and the greatest amount of cash, securities or other
property paid to the holder of one share of Common Stock in consideration of
one share of Common Stock pursuant to the Termination Transaction. If, in
connection with the Termination Transaction, a purchase, tender or exchange
offer shall have been made to and accepted by the holders of the outstanding
shares of Common Stock, each holder of Units will receive, or will have the
right to elect to receive, the greatest amount of cash, securities or other
property which such holder would have received had it exercised its right to
redemption and received shares of Common Stock in exchange for its Units
immediately prior to the expiration of such purchase, tender or exchange offer
and had thereupon accepted such purchase, tender or exchange offer.
The Company may also merge or otherwise combine its assets with another
entity if the following conditions are met: (i) substantially all of the
assets directly or indirectly owned by the surviving entity are held directly
or indirectly by the Operating Partnership or another limited partnership or
limited liability company which is the survivor of a merger, consolidation or
combination of assets with the Operating Partnership (in each case, the
"Surviving Partnership"); (ii) the limited partners own a percentage interest
of the Surviving Partnership based on the relative fair market value of the
net assets of the Operating Partnership and the other net assets of the
Surviving Partnership immediately prior to the consummation of such
transaction; (iii) the rights, preferences and privileges of the limited
partners in the Surviving Partnership are at least as favorable as those in
effect immediately prior to the consummation of such transaction and as those
applicable to any other limited partners or non-managing members of the
Surviving Partnership; and (iv) such rights of the limited partners include
the right to exchange their interests in the Surviving Partnership for at
least one of the following: (a) the consideration available to such persons
pursuant to the preceding paragraph, or (b) if the ultimate controlling person
of the Surviving Partnership has publicly traded common equity securities,
such common equity securities, with an exchange ratio based on the relative
fair market value of such securities and the Common Stock. For purposes of
this paragraph, the determination of relative fair market values and rights,
preferences and privileges of the limited partners shall be reasonably
determined by the Company's Board of Directors as of the time of the
Termination Transaction and, to the extent applicable, the values shall be no
less favorable to the limited partners than the relative values reflected in
the terms of the Termination Transaction.
In respect of any transaction described in the preceding two paragraphs, the
Company is required to use its commercially reasonable efforts to structure
such transaction to avoid causing the limited partners to recognize gain for
federal income tax purposes by virtue of the occurrence of or their
participation in such transaction. The Operating Partnership will also use
commercially reasonable efforts to cooperate with the limited partners to
minimize any taxes payable in connection with any repayment, refinancing,
replacement or restructuring of indebtedness, or any sale, exchange or any
other disposition of assets, of the Operating Partnership.
ISSUANCE OF ADDITIONAL UNITS
As sole general partner of the Operating Partnership, the Company has the
ability to cause the Operating Partnership to issue additional Units
representing general and limited partnership interests in the Operating
Partnership, including preferred Units of limited partnership interests.
CAPITAL CONTRIBUTION
The Partnership Agreement provides that if the Operating Partnership
requires additional funds at any time or from time to time in excess of funds
available to the Operating Partnership from borrowings or capital
contributions, the Company may borrow such funds from a financial institution
or other lender or through public or private debt offerings and lend such
funds to the Operating Partnership on the same terms and conditions as are
applicable to the Company's borrowing of such funds. As an alternative to
borrowing funds required by the Operating Partnership, the Company may
contribute the amount of such required funds as an additional capital
contribution to the Operating Partnership. If the Company so contributes
additional capital to the Operating Partnership, the Company's partnership
interest in the Operating Partnership will be increased on a proportionate
basis. Conversely, the partnership interests of the limited partners will be
decreased on a proportionate basis in
140
<PAGE>
the event of additional capital contributions by the Company. See "Policies
With Respect to Certain Activities--Financing."
AWARDS UNDER STOCK INCENTIVE PLAN
If options granted in connection with the Stock Incentive Plan are exercised
at any time or from time to time, or restricted shares of Common Stock are
issued under the Stock Incentive Plan, the Partnership Agreement requires the
Company to contribute to the Operating Partnership as an additional
contribution the exercise price received by the Company in connection with the
issuance of shares of Common Stock to such exercising participant or the
proceeds received by the Company upon issuance of the shares. Upon such
contribution the Company will be issued a number of Units in the Operating
Partnership equal to the number of shares of Common Stock so issued.
REDEMPTION/EXCHANGE RIGHTS
Limited partners will have rights to require the Operating Partnership to
redeem part or all of their Units for cash (based upon the fair market value
of an equivalent number of shares of Common Stock at the time of such
redemption) or the Company may elect to exchange such Units for shares of
Common Stock (on a one-for-one basis, subject to adjustment in the event of
stock splits, stock dividends, issuance of certain rights, certain
extraordinary distributions and similar events), provided, however, that if
the Company does not elect to exchange such Units for shares of Common Stock,
a holder of Units that is a corporation or a limited liability company may
require the Company to issue Common Stock in lieu thereof, subject to the
Ownership Limit or such other limit as provided in the Company's Articles of
Incorporation or as otherwise permitted by the Board of Directors, as
applicable. The Company presently anticipates that it will elect to issue
Common Stock in exchange for Units in connection with each such redemption
request, rather than having the Operating Partnership pay cash. With each such
redemption or exchange, the Company's percentage ownership interest in the
Operating Partnership will increase. This redemption/exchange right may be
exercised by limited partners from time to time, in whole or in part, subject
to the limitations that such right may not be exercised (i) prior to the
expiration of two years following the consummation of the Offering or (ii) at
any time to the extent such exercise would result in any person actually or
constructively owning Common Stock in excess of the Ownership Limit or such
other amount as provided in the Company's Articles of Incorporation or as
otherwise permitted by the Board of Directors, as applicable, assuming Common
Stock was issued in such exchange. See "Description of Capital Stock--
Restrictions on Ownership and Transfer." In addition, under certain
circumstances 50% of the Units received by John B. Kilroy, Sr., John B.
Kilroy, Jr. and Kilroy Industries may be redeemed prior to the second
anniversary of the consummation of the Offering in connection with the
obligation of such Continuing Investors to indemnify the Company in connection
with the Formation Transactions. See "Formation and Structure of the Company--
Allocation of Consideration in the Formation Transactions."
REGISTRATION RIGHTS
For a description of certain registration rights held by the Continuing
Investors, see "Shares Available for Future Sale--Redemption/Exchange
Rights/Registration Rights."
TAX MATTERS
Pursuant to the Partnership Agreement, the Company will be the tax matters
partner of the Operating Partnership and, as such, will have authority to make
tax elections under the Code on behalf of the Operating Partnership.
The net income or net loss of the Operating Partnership will generally be
allocated to the Company and the limited partners in accordance with their
respective percentage interests in the Operating Partnership, subject to
compliance with the provisions of Sections 704(b) and 704(c) of the Code and
the Treasury Regulations promulgated thereunder. See "Federal Income Tax
Consequences--Tax Aspects of the Operating Partnership."
141
<PAGE>
OPERATIONS
The Partnership Agreement requires that the Operating Partnership be
operated in a manner that will enable the Company to satisfy the requirements
for being classified as a REIT and to avoid any federal income tax liability.
The Partnership Agreement provides that the net operating cash revenues of the
Operating Partnership, as well as net sales and refinancing proceeds, will be
distributed from time to time as determined by the Company (but not less
frequently than quarterly) pro rata in accordance with the partners'
respective percentage interests. Pursuant to the Partnership Agreement, the
Operating Partnership will assume and pay when due, or reimburse the Company
for payment of, all expenses it incurs relating to the ownership and operation
of, or for the benefit of, the Operating Partnership and all costs and
expenses relating to the operations of the Company.
DUTIES AND CONFLICTS
Except as otherwise set forth in "Policies with Respect to Certain
Activities--Conflicts of Interest Policies" and "Management--Employment
Agreements," any limited partner of the Operating Partnership may engage in
other business activities outside the Operating Partnership, including
business activities that directly compete with the Operating Partnership.
CERTAIN LIMITED PARTNER APPROVAL RIGHTS
The Partnership Agreement provides that if the limited partners own at least
5% of the outstanding Units (including Units held by the Company), the Company
shall not, on behalf of the Operating Partnership, take any of the following
actions without the prior consent of the holders of more than 50% (excluding
Units held by the Company) of the Units representing limited partner
interests: (i) dissolve the Operating Partnership, other than incident to a
merger or sale of substantially all of the Company's assets; or (ii) prior to
the seventh anniversary of the consummation of the Offering, sell the Office
Property located at 2260 E. Imperial Highway, at Kilroy LAX, other than
incident to a merger or sale of substantially all of the Company's assets.
TERM
The Operating Partnership will continue in full force and effect for 99
years or until sooner dissolved pursuant to the terms of the Partnership
Agreement.
142
<PAGE>
SHARES AVAILABLE FOR FUTURE SALE
GENERAL
Upon the consummation of the Offering and the Formation Transactions, the
Company will have outstanding 12,600,000 shares of Common Stock (including
100,000 restricted shares of Common Stock issued to an officer of the Company
who is not a Continuing Investor and excluding the 1,875,000 shares which are
subject to the Underwriters' over-allotment option), of which the 12,500,000
issued in the Offering (or 14,375,000 if the Underwriters' overallotment
option is exercised in full) will be freely tradeable in the public market by
persons other than "affiliates" of the Company without restriction or
registration under the Securities Act.
Each of the Continuing Investors has agreed not to, directly or indirectly,
offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise sell or dispose (or announce any offer, sale, offer of
sale, contract of sale, pledge, grant of any option to purchase or other sale
or disposition) of any Units or shares of Common Stock or other capital stock
of the Company, or any securities convertible or exercisable or exchangeable
for any Units or shares of Common Stock or other capital stock for a period of
two years from the date of this Prospectus, and the Company has agreed not to
offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise sell or dispose (or announce any offer, sale, offer of
sale, contract of sale, pledge, grant of any option to purchase or other sale
or disposition) of any (other than pursuant to the Stock Incentive Plan)
shares of Common Stock or other capital stock of the Company, or any
securities convertible or exercisable or exchangeable for any Units or shares
of Common Stock or other capital stock of the Company, for a period of 180
days from the date of this Prospectus, in each case without the prior written
consent of Prudential Securities Incorporated, on behalf of the Underwriters,
subject to certain limited exceptions. Notwithstanding the foregoing, 50% of
the Units received by John B. Kilroy, Sr., John B. Kilroy, Jr. and Kilroy
Industries in connection with the Formation Transactions will be pledged to
secure their indemnification obligations pursuant to an agreement with the
Company. See "Formation and Structure of the Company."
The shares of Common Stock owned by "affiliates" of the Company, the 100,000
restricted shares of Common Stock issued to an officer of the Company who is
not a Continuing Investor and the shares of Common Stock issuable upon
exchange of Units (other than those issued pursuant to registration rights, as
described below), will be subject to Rule 144 promulgated under the Securities
Act ("Rule 144") and may not be sold in the absence of registration under the
Securities Act unless an exemption from registration is available, including
exemptions contained in Rule 144.
In general, under Rule 144 as currently in effect, a person (or persons
whose shares are aggregated with them in accordance with Rule 144) who has
beneficially owned "restricted shares" (defined generally as shares acquired
from the issuer or an affiliate in a non-public transaction) for at least two
years, as well as any person who purchased unrestricted shares on the open
market who may be deemed an affiliate of the Company, would be entitled to
sell, subject to certain manner of sale, public information and notice
requirements, within any three-month period, a number of shares of Common
Stock that does not exceed the greater of 1% of the then-outstanding number of
shares of Common Stock or 1% of the average weekly trading volume of those
shares during the four calendar weeks preceding each such sale. After
restricted shares are held for three years, a person who is not then deemed an
affiliate of the Company is entitled to sell such shares under Rule 144
without regard to these volume limitations. Sales of shares of Common Stock by
affiliates of the Company will continue to be subject to the volume
limitations, unless resold under an effective registration statement under the
Securities Act. The Commission has stated that it will re-issue a notice of
proposed rulemaking which, if adopted in the form expected to be proposed,
would shorten the applicable holding period under Rule 144(d) and Rule 144(k)
to one and two years, respectively (from the current two- and three-year
periods described above). The Company cannot predict whether such amendments
will be proposed or adopted or the effect thereof on the trading market for
its Common Stock.
The Company has established the Stock Incentive Plan for the purpose of
attracting and retaining executive officers, directors and other key
employees. See "Management--Stock Incentive Plan." Upon the consummation
143
<PAGE>
of the Offering, the Company will issue in the aggregate options to purchase
900,000 shares of Common Stock to executive officers, directors and certain
key employees and has reserved 500,000 additional shares of Common Stock for
future issuance under the Stock Incentive Plan.
Prior to the date of this Prospectus, there has been no public market for
the shares of Common Stock. The shares of Common Stock have been approved for
listing on the NYSE, subject to official notice of issuance. No prediction can
be made as to the effect, if any, that future sales of shares of Common Stock
(including sales pursuant to Rule 144) or the availability of shares of Common
Stock for future sale will have on the market price prevailing from time to
time. Sales of substantial amounts of shares of Common Stock (including shares
of Common Stock issued upon the exercise of options or the exchange of Units),
or the perception that such sales could occur, could adversely affect
prevailing market prices of the shares of Common Stock and impair the
Company's ability to obtain additional capital through the sale of equity
securities. See "Risk Factors--Shares Available for Future Sale." For a
description of certain restrictions on transfers of Common Stock held by
certain stockholders of the Company, see "Underwriting" and "Description of
Capital Stock--Restrictions on Ownership and Transfer."
REDEMPTION/EXCHANGE RIGHTS/REGISTRATION RIGHTS
Each limited partner of the Operating Partnership will have the right to
require the Operating Partnership to redeem part or all of their Units for
cash (based on the fair market value of an equivalent number of shares of
Common Stock at the time of such redemption) or, at the election of the
Company, to exchange such Units for shares of Common Stock, at any time
beginning two years after the completion of the Offering subject to the
obligation of John B. Kilroy, Sr., John B. Kilroy, Jr. and Kilroy Industries,
with respect to 50% of their Units, to indemnify the Company in connection
with the Formation Transactions. See "Formation and Structure of the Company--
Allocation of Consideration in the Formation Transactions." If the Company
does not elect to exchange such Units for shares of Common Stock, a Unitholder
that is a corporation or a limited liability company may require the Company
to issue shares of Common Stock in lieu of cash, subject to the Ownership
Limit or such other amount as provided in the Company's Articles of
Incorporation, as applicable. Upon completion of the Formation Transactions,
an aggregate of approximately 2,652,374 Units will be held by limited partners
of the Operating Partnership. If the Company elects to exchange Units for
Common Stock, each Unit will be exchangeable for one share of Common Stock,
subject to adjustment in the event of stock splits, distribution of rights,
extraordinary dividends and similar events.
In order to protect the Company's status as a REIT, a holder of Units is
prohibited from exchanging such Units for shares of Common Stock, to the
extent that as a result of such exchange any person would own or would be
deemed to own, actually or constructively, more than 7.0% of the Common Stock,
except to the extent such holder has been granted an exception to the
Ownership Limit. See "Description of Capital Stock--Restrictions on Ownership
and Transfer."
The Company has granted the Continuing Investors receiving Units in
connection with the Formation Transactions certain registration rights
(collectively, the "Registration Rights") with respect to the shares of Common
Stock acquired upon exchange of Units or otherwise (the "Registrable Shares").
The Company has agreed to file and generally keep continuously effective
beginning two years after the completion of the Offering a registration
statement covering the issuance of shares of Common Stock upon exchange of
Units and the resale thereof. In addition, the Company has granted the
Continuing Investors piggyback registration rights with respect to shares of
Common Stock acquired by them by any means. The Company also has agreed to
provide the Registration Rights to any other person who may become an owner of
Units, provided such person provides the Company with satisfactory
undertakings. The Company will bear expenses incident to its registration
obligations upon exercise of the Registration Rights, including the payment of
federal securities law and state Blue Sky registration fees, except that it
will not bear any underwriting discounts or commissions or transfer taxes
relating to registration of Registrable Shares.
144
<PAGE>
REINVESTMENT AND SHARE PURCHASE PLAN
The Company is considering the adoption of a Distribution Reinvestment and
Share Purchase Plan that would allow stockholders to automatically reinvest
cash distributions on their outstanding shares of Common Stock and/or Units to
purchase additional shares of Common Stock at a discounted price and without
the payment of any brokerage commission or service charge. Stockholders would
also have the option of investing limited additional amounts by making cash
payments. No decision has been made yet by the Company whether or not to adopt
such a plan and there can be no assurance that such a plan will ever be
adopted by the Company.
FEDERAL INCOME TAX CONSEQUENCES
The following summary of material federal income tax considerations
regarding the Company and the Offering is based on current law, is for general
information only and is not tax advice. The information set forth below, to
the extent that it constitutes matters of law, summaries of legal matters or
legal conclusions, is the opinion of Latham & Watkins, tax counsel to the
Company, as to the material federal income tax considerations relevant to
purchasers of the Common Stock. This discussion does not purport to deal with
all aspects of taxation that may be relevant to particular stockholders in
light of their personal investment or tax circumstances, or to certain types
of stockholders subject to special treatment under the federal income tax
laws, including, without limitation, certain financial institutions, life
insurance companies, dealers in securities or currencies, stockholders holding
Common Stock as part of a conversion transaction, as part of a hedge or
hedging transaction, or as a position in a straddle for tax purposes, tax-
exempt organizations (except to the extent discussed under the heading "--
Taxation of Tax-Exempt Stockholders") or foreign corporations, foreign
partnerships and persons who are not citizens or residents of the United
States (except to the extent discussed under the heading "Taxation of Non-U.S.
Stockholders"). In addition, the summary below does not consider the effect of
any foreign, state, local or other tax laws that may be applicable to
prospective stockholders.
EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT HIS OR HER OWN TAX ADVISOR
REGARDING THE SPECIFIC TAX CONSEQUENCES TO HIM OR HER OF THE PURCHASE,
OWNERSHIP AND SALE OF THE COMMON STOCK, INCLUDING THE FEDERAL, STATE, LOCAL,
FOREIGN AND OTHER TAX CONSEQUENCES OF SUCH PURCHASE, OWNERSHIP AND SALE AND OF
POTENTIAL CHANGES IN APPLICABLE TAX LAWS.
TAXATION OF THE COMPANY
General. The Company plans to make an election to be taxed as a REIT under
Sections 856 through 860 of the Code commencing with its taxable year ending
December 31, 1997. The Company believes that, commencing with its taxable year
ending December 31, 1997, it will be organized and will operate in such a
manner as to qualify for taxation as a REIT under the Code commencing with
such taxable year, and the Company intends to continue to operate in such a
manner, but no assurance can be given that it will operate or continue to
operate in such a manner so as to qualify or remain qualified.
These sections of the Code and the corresponding Treasury Regulations are
highly technical and complex. The following sets forth the material aspects of
the sections that govern the federal income tax treatment of a REIT and its
stockholders. This summary is qualified in its entirety by the applicable Code
provisions, rules and regulations promulgated thereunder, and administrative
and judicial interpretations thereof.
Latham & Watkins has acted as tax counsel to the Company in connection with
the Offering and the Company's election to be taxed as a REIT. In the opinion
of Latham & Watkins, commencing with the Company's taxable year ending
December 31, 1997, the Company will be organized in conformity with the
requirements for qualification as a REIT, and its proposed method of operation
will enable it to meet the requirements for qualification and taxation as a
REIT under the Code. It must be emphasized that this opinion is based on
various factual assumptions relating to the organization and operation of the
Company, the Operating Partnership and the Services Company, and is
conditioned upon certain representations made by the Company as
145
<PAGE>
to factual matters. In addition, this opinion is based upon the factual
representations of the Company concerning its business and properties as set
forth in this Prospectus and assumes that the actions described in this
Prospectus are completed in a timely fashion. Moreover, such qualification and
taxation as a REIT depends upon the Company's ability to meet (through actual
annual operating results, distribution levels and diversity of stock
ownership) the various qualification tests imposed under the Code discussed
below, the results of which will not be reviewed by Latham & Watkins.
Accordingly, no assurance can be given that the actual results of the
Company's operation for any particular taxable year will satisfy such
requirements. Further, the anticipated income tax treatment described in this
Prospectus may be changed, perhaps retroactively, by legislative,
administrative or judicial action at any time. See "--Failure to Qualify."
If the Company qualifies for taxation as a REIT, it generally will not be
subject to federal corporate income taxes on its net income that is currently
distributed to stockholders. This treatment substantially eliminates the
"double taxation" (at the corporate and stockholder levels) that generally
results from investment in a regular corporation. However, the Company will be
subject to federal income tax as follows. First, the Company will be taxed at
regular corporate rates on any undistributed "REIT taxable income," including
undistributed net capital gains. Second, under certain circumstances, the
Company may be subject to the "alternative minimum tax" on its items of tax
preference. Third, if the Company has (i) net income from the sale or other
disposition of "foreclosure property" (defined generally as property acquired
by the Company through foreclosure or otherwise after a default on a loan
secured by the property or a lease of the property) which is held primarily
for sale to customers in the ordinary course of business or (ii) other
nonqualifying income from foreclosure property, it will be subject to tax at
the highest corporate rate on such income. Fourth, if the Company has net
income from prohibited transactions (which are, in general, certain sales or
other dispositions of property held primarily for sale to customers in the
ordinary course of business other than foreclosure property), such income will
be subject to a 100% tax. Fifth, if the Company should fail to satisfy the 75%
gross income test or the 95% gross income test (as discussed below), but has
nonetheless maintained its qualification as a REIT because certain other
requirements have been met, it will be subject to a 100% tax on an amount
equal to (a) the gross income attributable to the greater of the amount by
which the Company fails the 75% or 95% test multiplied by (b) a fraction
intended to reflect the Company's profitability. Sixth, if the Company should
fail to distribute during each calendar year at least the sum of (i) 85% of
its REIT ordinary income for such year, (ii) 95% of its REIT capital gain net
income for such year, and (iii) any undistributed taxable income from prior
periods, the Company would be subject to a 4% excise tax on the excess of such
required distribution over the amounts actually distributed. Seventh, with
respect to any asset (a "Built-In Gain Asset") acquired by the Company from a
corporation which is or has been a C corporation (i.e., generally a
corporation subject to full corporate-level tax) in a transaction in which the
basis of the Built-In Gain Asset in the hands of the Company is determined by
reference to the basis of the asset in the hands of the C corporation, if the
Company recognizes gain on the disposition of such asset during the ten-year
period (the "Recognition Period") beginning on the date on which such asset
was acquired by the Company, then, to the extent of the Built-In Gain (i.e.,
the excess of (a) the fair market value of such asset over (b) the Company's
adjusted basis in such asset, determined as of the beginning of the
Recognition Period), such gain will be subject to tax at the highest regular
corporate rate pursuant to Treasury Regulations that have not yet been
promulgated. The results described above with respect to the recognition of
Built-In Gain assume that the Company will make an election pursuant to IRS
Notice 88-19.
Requirements for Qualification. The Code defines a REIT as a corporation,
trust or association; (i) which is managed by one or more trustees or
directors; (ii) the beneficial ownership of which is evidenced by transferable
shares, or by transferable certificates of beneficial interest; (iii) which
would be taxable as a domestic corporation, but for Sections 856 through 859
of the Code; (iv) which is neither a financial institution nor an insurance
company subject to certain provisions of the Code; (v) the beneficial
ownership of which is held by 100 or more persons; (vi) during the last half
of each taxable year not more than 50% in value of the outstanding stock of
which is owned, actually or constructively, by five or fewer individuals (as
defined in the Code to include certain entities); and (vii) which meets
certain other tests, described below, regarding the nature of its income and
assets. The Code provides that conditions (i) to (iv), inclusive, must be met
during the entire taxable year and that condition (v) must be met during at
least 335 days of a taxable year of twelve months, or during a
146
<PAGE>
proportionate part of a taxable year of less than twelve months. Conditions
(v) and (vi) will not apply until after the first taxable year for which an
election is made to be taxed as a REIT. For purposes of conditions (v) and
(vi), pension funds and certain other tax-exempt entities are treated as
individuals, subject to a "look-through" exception in the case of condition
(vi).
The Company believes that upon consummation of the Offering it will have
issued sufficient shares of Common Stock with sufficient diversity of
ownership pursuant to the Offering to allow it to satisfy conditions (v) and
(vi). In addition, the Company's Articles of Incorporation provides for
restrictions regarding the transfer and ownership of shares, which
restrictions are intended to assist the Company in continuing to satisfy the
share ownership requirements described in (v) and (vi) above. Such ownership
and transfer restrictions are described in "Description of Capital Stock--
Restrictions on Ownership and Transfer." These restrictions, however, may not
ensure that the Company will, in all cases, be able to satisfy the share
ownership requirements described above. If the Company fails to satisfy such
share ownership requirements, the Company's status as a REIT will terminate.
See "--Failure to Qualify." In addition, a corporation may not elect to become
a REIT unless its taxable year is the calendar year. The Company will have a
calendar taxable year.
Ownership of a Partnership Interest. In the case of a REIT which is a
partner in a partnership, Treasury Regulations provide that the REIT will be
deemed to own its proportionate share of the assets of the partnership and
will be deemed to be entitled to the income of the partnership attributable to
such share. In addition, the character of the assets and gross income of the
partnership shall retain the same character in the hands of the REIT for
purposes of Section 856 of the Code, including satisfying the gross income
tests and the asset tests. Thus, the Company's proportionate share of the
assets and items of income of the Operating Partnership (including the
Operating Partnership's share of such items of any subsidiary partnerships)
will be treated as assets and items of income of the Company for purposes of
applying the requirements described herein. A summary of the rules governing
the federal income taxation of partnerships and their partners is provided
below in "--Tax Aspects of the Operating Partnership." The Company has direct
control of the Operating Partnership and intends to operate it consistent with
the requirements for qualification as a REIT.
Income Tests. In order to maintain its qualification as a REIT, the Company
annually must satisfy three gross income requirements. First, at least 75% of
the Company's gross income (excluding gross income from prohibited
transactions) for each taxable year must be derived directly or indirectly
from investments relating to real property or mortgages on real property
(including "rents from real property" and, in certain circumstances, interest)
or from certain types of temporary investments. Second, at least 95% of the
Company's gross income (excluding gross income from prohibited transactions)
for each taxable year must be derived from such real property investments,
dividends, interest and gain from the sale or disposition of stock or
securities (or from any combination of the foregoing). Third, subject to
certain exceptions in the year in which the Company is liquidated, short-term
gain from the sale or other disposition of stock or securities, gain from
prohibited transactions and gain on the sale or other disposition of real
property held for less than four years (apart from involuntary conversions and
sales of foreclosure property) must represent less than 30% of the Company's
gross income (including gross income from prohibited transactions) for each
taxable year. For purposes of applying the 30% gross income test, the holding
period of Properties acquired by the Operating Partnership in the Formation
Transactions will be deemed to have commenced on the date of acquisition.
Rents received by the Company will qualify as "rents from real property" in
satisfying the gross income requirements for a REIT described above only if
several conditions are met. First, the amount of rent must not be based in
whole or in part on the income or profits of any person. However, an amount
received or accrued generally will not be excluded from the term "rents from
real property" solely by reason of being based on a fixed percentage or
percentages of receipts or sales. Second, the Code provides that rents
received from a tenant will not qualify as "rents from real property" in
satisfying the gross income tests if the REIT, or an actual or constructive
owner of 10% or more of the REIT, actually or constructively owns 10% or more
of such tenant (a "Related Party Tenant"). Third, if rent attributable to
personal property, leased in connection with a lease of real property, is
greater than 15% of the total rent received under the lease, then the portion
of rent attributable to such personal property will not qualify as "rents from
real property." Finally, for rents received to qualify as
147
<PAGE>
"rents from real property," the REIT generally must not operate or manage the
property or furnish or render services to the tenants of such property, other
than through an independent contractor from whom the REIT derives no revenue.
The REIT may, however, directly perform certain services that are "usually or
customarily rendered" in connection with the rental of space for occupancy
only and are not otherwise considered "rendered to the occupant" of the
property. The Company does not and will not; (i) charge rent for any property
that is based in whole or in part on the income or profits of any person
(except by reason of being based on a percentage of receipts or sales, as
described above); (ii) rent any property to a Related Party Tenant (unless the
Company determines in its discretion that the rent received from such Related
Party Tenant is not material and will not jeopardize the Company's status as a
REIT); (iii) derive rental income attributable to personal property (other
than personal property leased in connection with the lease of real property,
the amount of which is less than 15% of the total rent received under the
lease); or (iv) perform services considered to be rendered to the occupant of
the property, other than through an independent contractor from whom the
Company derives no revenue.
The Services Company will receive fees in exchange for the performance of
certain development activities. Such fees will not accrue to the Company, but
the Company will derive its allocable share of dividends from the Services
Company through its interest in the Operating Partnership, which qualify under
the 95% gross income test, but not the 75% gross income test. The Company
believes that the aggregate amount of any nonqualifying income in any taxable
year will not exceed the limit on nonqualifying income under the gross income
tests.
The Operating Partnership will receive fees in exchange for the performance
of certain management activities for third parties with respect to properties
in which the Operating Partnership does not own an interest, including certain
of the Excluded Properties. Such fees will result in nonqualifying income to
the Company under the 95% and 75% gross income tests. The Company believes
that the aggregate amount of nonqualifying income, including such fees, in any
taxable year will not exceed the limit on nonqualifying income under the gross
income tests.
The term "interest" generally does not include any amount received or
accrued (directly or indirectly) if the determination of such amount depends
in whole or in part on the income or profits of any person. However, an amount
received or accrued generally will not be excluded from the term "interest"
solely by reason of being based on a fixed percentage or percentages of
receipts or sales.
If the Company fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a REIT for such
year if it is entitled to relief under certain provisions of the Code. These
relief provisions will be generally available if the Company's failure to meet
such tests was due to reasonable cause and not due to willful neglect, the
Company attaches a schedule of the sources of its income to its federal income
tax return, and any incorrect information on the schedule was not due to fraud
with intent to evade tax. It is not possible, however, to state whether in all
circumstances the Company would be entitled to the benefit of these relief
provisions. For example, if the Company fails to satisfy the gross income
tests because nonqualifying income that the Company intentionally incurs
exceeds the limits on such income, the IRS could conclude that the Company's
failure to satisfy the tests was not due to reasonable cause. If these relief
provisions are inapplicable to a particular set of circumstances involving the
Company, the Company would not qualify as a REIT. As discussed above in
"Federal Income Tax Considerations--Taxation of the Company--General," even if
these relief provisions apply, a 100% tax would be imposed on an amount equal
to (a) the gross income attributable to the greater of the amount by which the
Company failed the 75% or 95% test multiplied by (b) a fraction intended to
reflect the Company's profitability. No similar mitigation provision provides
relief if the Company fails the 30% gross income test. In such case, the
Company would cease to qualify as a REIT.
Any gain realized by the Company on the sale of any property held as
inventory or other property held primarily for sale to customers in the
ordinary course of business (including the Company's share of any such gain
realized by the Operating Partnership) will be treated as income from a
prohibited transaction that is subject to a 100% penalty tax. Such prohibited
transaction income may also have an adverse effect upon the Company's ability
to satisfy the income tests for qualification as a REIT. Under existing law,
whether property is held as inventory or primarily for sale to customers in
the ordinary course of a trade or business is a question of fact that
148
<PAGE>
depends on all the facts and circumstances with respect to the particular
transaction. The Operating Partnership intends to hold the Properties for
investment with a view to long-term appreciation, to engage in the business of
acquiring, developing, owning, and operating the Properties (and other
properties) and to make such occasional sales of the Properties as are
consistent with the Operating Partnership's investment objectives. There can
be no assurance, however, that the IRS might not contend that one or more of
such sales is subject to the 100% penalty tax.
Asset Tests. The Company, at the close of each quarter of its taxable year,
must also satisfy three tests relating to the nature of its assets. First, at
least 75% of the value of the Company's total assets (including its allocable
share of the assets held by the Operating Partnership) must be represented by
real estate assets including (i) its allocable share of real estate assets
held by partnerships in which the Company owns a direct or indirect interest
(such as the Operating Partnership) and (ii) stock or debt instruments held
for not more than one year purchased with the proceeds of a stock offering or
long-term (at least five years) public debt offering of the Company, cash,
cash items and government securities. Second, not more than 25% of the
Company's total assets (including its allocable share of the assets held by
the Operating Partnership) may be represented by securities other than those
in the 75% asset class. Third, of the investments included in the 25% asset
class, the value of any one issuer's securities owned by the Company may not
exceed 5% of the value of the Company's total assets and the Company may not
own more than 10% of any one issuer's outstanding voting securities.
As described above, the Operating Partnership owns 100% of the non-voting
preferred stock of the Services Company, and by virtue of its ownership of
interests in the Operating Partnership, the Company will be considered to own
its pro rata share of such stock. See "Structure and Formation of the
Company." The Operating Partnership does not and will not own any of the
voting securities of the Services Company, and therefore the Company will not
be considered to own more than 10% of the voting securities of the Services
Company. In addition, the Company believes (and has represented to tax counsel
to the Company for purposes of its opinion, as described above) that the value
of its pro rata share of the securities of the Services Company to be held by
the Operating Partnership will not exceed, at the closing of the Offering, 5%
of the total value of the Company's assets, and will not exceed such amount in
the future. Latham & Watkins, in rendering its opinion as to the qualification
of the Company as a REIT, is relying on the representation of the Company to
such effect. No independent appraisals have been obtained to support this
conclusion. There can be no assurance that the IRS will not contend that the
value of the securities of the Services Company held by the Company (through
the Operating Partnership) exceeds the 5% value limitation.
The 5% value test must be satisfied not only on the date that the Company
(directly or through the Operating Partnership) acquires securities in the
Services Company, but also each time the Company increases its ownership of
securities of the Services Company (including as a result of increasing its
interest in the Operating Partnership as a result of Company capital
contributions to the Operating Partnership or as limited partners exercise
their redemption/exchange rights). Although the Company plans to take steps to
ensure that it satisfies the 5% value test for any quarter with respect to
which retesting is to occur, there can be no assurance that such steps will
always be successful, or will not require a reduction in the Operating
Partnership's overall interest in the Services Company.
After initially meeting the asset tests at the close of any quarter, the
Company will not lose its status as a REIT for failure to satisfy the asset
tests at the end of a later quarter solely by reason of changes in asset
values. If the failure to satisfy the asset tests results from an acquisition
of securities or other property during a quarter (including as a result of the
Company increasing its interest in the Operating Partnership), the failure can
be cured by the disposition of sufficient nonqualifying assets within 30 days
after the close of that quarter. The Company intends to maintain adequate
records of the value of its assets to ensure compliance with the asset tests
and to take such other actions within 30 days after the close of any quarter
as may be required to cure any noncompliance. If the Company fails to cure
noncompliance with the asset tests within such time period, the Company would
cease to qualify as a REIT.
149
<PAGE>
Annual Distribution Requirements. The Company, in order to qualify as a
REIT, is required to distribute dividends (other than capital gain dividends)
to its stockholders in an amount at least equal to (i) the sum of (a) 95% of
the Company's "REIT taxable income" (computed without regard to the dividends
paid deduction and by excluding the Company's net capital gain) and (b) 95% of
the excess of the net income, if any, from foreclosure property over the tax
imposed on such income, minus (ii) the excess of the sum of certain items of
noncash income (i.e., income attributable to leveled stepped rents, original
issue discount or purchase money debt, or a like-kind exchange that is later
determined to be taxable) over 5% of "REIT Taxable Income" as described in
clause (i)(a) above. In addition, if the Company disposes of any Built-In Gain
Asset during its Recognition Period, the Company will be required, pursuant to
Treasury Regulations which have not yet been promulgated, to distribute at
least 95% of the Built-in Gain (after tax), if any, recognized on the
disposition of such asset. Such distributions must be paid in the taxable year
to which they relate, or in the following taxable year if declared before the
Company timely files its tax return for such year and if paid on or before the
first regular dividend payment after such declaration. Such distributions are
taxable to holders of Common Stock (other than tax-exempt entities, as
discussed below) in the year in which paid, even though such distributions
relate to the prior year for purposes of the Company's 95% distribution
requirement. The amount distributed must not be preferential--i.e., each
holder of shares of Common Stock must receive the same distribution per share.
A REIT may have more than one class of capital stock, as long as distributions
within each class are pro rata and non-preferential. To the extent that the
Company does not distribute all of its net capital gain or distributes at
least 95%, but less than 100%, of its "REIT taxable income," as adjusted, it
will be subject to tax thereon at regular ordinary and capital gain corporate
tax rates. The Company intends to make timely distributions sufficient to
satisfy these annual distribution requirements. In this regard, the
Partnership Agreement authorizes the Company, as general partner, to take such
steps as may be necessary to cause the Operating Partnership to distribute to
its partners an amount sufficient to permit the Company to meet these
distribution requirements.
It is expected that the Company's REIT taxable income will be less than its
cash flow due to the allowance of depreciation and other non-cash charges in
computing REIT taxable income. Accordingly, the Company anticipates that it
will generally have sufficient cash or liquid assets to enable it to satisfy
the distribution requirements described above. It is possible, however, that
the Company, from time to time, may not have sufficient cash or other liquid
assets to meet these distribution requirements due to timing differences
between (i) the actual receipt of income and actual payment of deductible
expenses and (ii) the inclusion of such income and deduction of such expenses
in arriving at taxable income of the Company. In the event that such timing
differences occur, in order to meet the distribution requirements, the Company
may find it necessary to arrange for short-term, or possibly long-term,
borrowings, to pay dividends in the form of taxable stock dividends.
If the Company fails to meet the 95% distribution test due to certain
adjustments (e.g., an increase in the Company's income or a decrease in its
deduction for dividends paid) by reason of a judicial decision or by agreement
with the IRS, the Company may pay a "deficiency dividend" to holders of shares
of Common Stock in the taxable year of the adjustment, which dividend would
relate back to the year being adjusted. In such case, the Company would also
be required to pay interest to the IRS and would be subject to any applicable
penalty provisions.
Furthermore, if the Company should fail to distribute during each calendar
year at least the sum of (i) 85% of its REIT ordinary income for such year,
(ii) 95% of its REIT capital gain income for such year, and (iii) any
undistributed taxable income from prior periods, the Company would be subject
to a 4% excise tax on the excess of such required distribution over the
amounts actually distributed.
FAILURE TO QUALIFY
If the Company fails to qualify for taxation as a REIT in any taxable year,
and the relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to stockholders in any year in which
the Company fails to qualify will not be deductible by the Company nor will
they be required to be made. As a result, the Company's failure
150
<PAGE>
to qualify as a REIT would reduce the cash available for distribution by the
Company to its stockholders. In addition, if the Company fails to qualify as a
REIT, all distributions to stockholders will be taxable as ordinary income, to
the extent of the Company's current and accumulated earnings and profits, and,
subject to certain limitations of the Code, corporate distributees may be
eligible for the dividends received deduction. Unless entitled to relief under
specific statutory provisions, the Company will also be disqualified from
taxation as a REIT for the four taxable years following the year during which
qualification was lost. It is not possible to state whether in all
circumstances the Company would be entitled to such statutory relief.
TAXATION OF TAXABLE U.S. STOCKHOLDERS GENERALLY
As used herein, the term "U.S. Stockholder" means a holder of shares of
Common Stock who (for United States federal income tax purposes) (i) is a
citizen or resident of the United States, (ii) is a corporation, partnership,
or other entity created or organized in or under the laws of the United States
or of any political subdivision thereof, or (iii) is an estate or trust the
income of which is subject to United States federal income taxation regardless
of its source.
As long as the Company qualifies as a REIT, distributions made by the
Company out of its current or accumulated earnings and profits (and not
designated as capital gain dividends) will constitute dividends taxable to its
taxable U.S. Stockholders as ordinary income. Such distributions will not be
eligible for the dividends received deduction otherwise available with respect
to dividends received by U.S. Stockholders that are corporations.
Distributions made by the Company that are properly designated by the Company
as capital gain dividends will be taxable to taxable U.S. Stockholders as
long-term capital gains (to the extent that they do not exceed the Company's
actual net capital gain for the taxable year) without regard to the period for
which a U.S. Stockholder has held his shares of Common Stock. U.S.
Stockholders that are corporations may, however, be required to treat up to
20% of certain capital gain dividends as ordinary income. To the extent that
the Company makes distributions (not designated as capital gain dividends) in
excess of its current and accumulated earnings and profits, such distributions
will be treated first as a tax-free return of capital to each U.S.
Stockholder, reducing the adjusted basis which such U.S. Stockholder has in
his shares of Common Stock for tax purposes by the amount of such distribution
(but not below zero), with distributions in excess of a U.S. Stockholder's
adjusted basis in his shares taxable as long-term capital gains (or short-term
capital gain if the shares have been held for one year or less), provided that
the shares have been held as a capital asset. Dividends declared by the
Company in October, November, or December of any year and payable to a
stockholder of record on a specified date in any such month shall be treated
as both paid by the Company and received by the stockholder on December 31 of
such year, provided that the dividend is actually paid by the Company on or
before January 31 of the following calendar year. Stockholders may not include
in their own income tax returns any net operating losses or capital losses of
the Company.
Distributions made by the Company and gain arising from the sale or exchange
by a U.S. Stockholder of shares of Common Stock will not be treated as passive
activity income, and, as a result, U.S. Stockholders generally will not be
able to apply any "passive losses" against such income or gain. Distributions
made by the Company (to the extent they do not constitute a return of capital)
generally will be treated as investment income for purposes of computing the
investment income limitation. Gain arising from the sale or other disposition
of Common Stock, however, will not be treated as investment income unless the
U.S. Stockholder elects to reduce the amount of such U.S. Stockholder's total
net capital gain eligible for the 28% maximum capital gains rate by the amount
of such gain with respect to such Common Stock.
Upon any sale or other disposition of Common Stock, a U.S. Stockholder will
recognize gain or loss for federal income tax purposes in an amount equal to
the difference between (i) the amount of cash and the fair market value of any
property received on such sale or other disposition and (ii) the holder's
adjusted basis in such shares of Common Stock for tax purposes. Such gain or
loss will be capital gain or loss if the shares have been held by the U.S.
Stockholder as a capital asset, and will be long-term gain or loss if such
shares have been held for more than one year. In general, any loss recognized
by a U.S. Stockholder upon the sale or other disposition of shares of Common
Stock that have been held for six months or less (after applying certain
holding
151
<PAGE>
period rules) will be treated as a long-term capital loss, to the extent of
capital gain dividends received by such U.S. Stockholder from the Company
which were required to be treated as long-term capital gains.
BACKUP WITHHOLDING
The Company will report to its U.S. Stockholders and the IRS the amount of
dividends paid during each calendar year, and the amount of tax withheld, if
any. Under the backup withholding rules, a stockholder may be subject to
backup withholding at the rate of 31% with respect to dividends paid unless
such holder (a) is a corporation or comes within certain other exempt
categories and, when required, demonstrates this fact, or (b) provides a
taxpayer identification number, certifies as to no loss of exemption from
backup withholding, and otherwise complies with applicable requirements of the
backup withholding rules. A U.S. Stockholder that does not provide the Company
with his correct taxpayer identification number may also be subject to
penalties imposed by the IRS. Any amount paid as backup withholding will be
creditable against the stockholder's income tax liability. In addition, the
Company may be required to withhold a portion of capital gain distributions to
any stockholders who fail to certify their non-foreign status to the Company.
See "--Taxation of Non-U.S. Stockholders."
TAXATION OF TAX-EXEMPT STOCKHOLDERS
The IRS has ruled that amounts distributed as dividends by a qualified REIT
do not constitute unrelated business taxable income ("UBTI") when received by
a tax-exempt entity. Based on that ruling, provided that a tax-exempt
shareholder (except certain tax-exempt shareholders described below) has not
held its shares of Common Stock as "debt financed property" within the meaning
of the Code and such shares are not otherwise used in a trade or business, the
dividend income from the Company will not be UBTI to a tax-exempt shareholder.
Similarly, income from the sale of Common Stock will not constitute UBTI
unless such tax-exempt shareholder has held such shares as "debt financed
property" within the meaning of the Code or has used the shares in a trade or
business.
For tax-exempt shareholders which are social clubs, voluntary employee
benefit associations, supplemental unemployment benefit trusts, and qualified
group legal services plans exempt from federal income taxation under Code
Sections 501(c)(7), (c)(9), (c)(17) and (c)(20), respectively, income from an
investment in the Company will constitute UBTI unless the organization is able
to properly deduct amounts set aside or placed in reserve for certain purposes
so as to offset the income generated by its investment in the Company. Such
prospective investors should consult their own tax advisors concerning these
"set aside" and reserve requirements.
Notwithstanding the above, however, a portion of the dividends paid by a
"pension held REIT" shall be treated as UBTI as to any trust which (i) is
described in Section 401(a) of the Code, (ii) is tax-exempt under Section
501(a) of the Code, and (iii) holds more than 10% (by value) of the interests
in the REIT. Tax-exempt pension funds that are described in Section 401(a) of
the Code are referred to below as "qualified trusts."
A REIT is a "pension held REIT" if (i) it would not have qualified as a REIT
but for the fact that Section 856(h)(3) of the Code provides that stock owned
by qualified trusts shall be treated, for purposes of the "not closely held"
requirement, as owned by the beneficiaries of the trust (rather than by the
trust itself), and (ii) either (a) at least one such qualified trust holds
more than 25% (by value) of the interests in the REIT, or (b) one or more such
qualified trusts, each of which owns more than 10% (by value) of the interests
in the REIT, hold in the aggregate more than 50% (by value) of the interests
in the REIT. The percentage of any REIT dividend treated as UBTI is equal to
the ratio of (i) the UBTI earned by the REIT (treating the REIT as if it were
a qualified trust and therefore subject to tax on UBTI) to (ii) the total
gross income of the REIT. A de minimis exception applies where the percentage
is less than 5% for any year. The provisions requiring qualified trusts to
treat a portion of REIT distributions as UBTI will not apply if the REIT is
able to satisfy the "not closely held" requirement without relying upon the
"look-through" exception with respect to qualified trusts. As a result of
certain limitations on transfer and ownership of Common Stock contained in the
Articles of Incorporation, the Company does not expect to be classified as a
"pension held REIT."
152
<PAGE>
TAXATION OF NON-U.S. STOCKHOLDERS
The rules governing United States federal income taxation of the ownership
and disposition of stock by persons that are, for purposes of such taxation,
nonresident alien individuals, foreign corporations, foreign partnerships or
foreign estates or trusts (collectively, "Non-U.S. Stockholders") are complex,
and no attempt is made herein to provide more than a brief summary of such
rules. Accordingly, the discussion does not address all aspects of United
States federal income tax and does not address state, local or foreign tax
consequences that may be relevant to a Non-U.S. Stockholder in light of its
particular circumstances, including, for example, if the investment in the
Company is connected to the conduct by a Non-U.S. Stockholder of a U.S. trade
or business. In addition, this discussion is based on current law, which is
subject to change, and assumes that the Company qualifies for taxation as a
REIT. Prospective Non-U.S. Stockholders should consult with their own tax
advisers to determine the impact of federal, state, local and foreign income
tax laws with regard to an investment in Common Stock, including any reporting
requirements.
Distributions. Distributions by the Company to a Non-U.S. Stockholder that
are neither attributable to gain from sales or exchanges by the Company of
United States real property interests nor designated by the Company as capital
gains dividends will be treated as dividends of ordinary income to the extent
that they are made out of current or accumulated earnings and profits of the
Company. Such distributions ordinarily will be subject to withholding of
United States federal income tax on a gross basis (that is, without allowance
of deductions) at a 30% rate or such lower rate as may be specified by an
applicable income tax treaty, unless the dividends are treated as effectively
connected with the conduct by the Non-U.S. Stockholder of a United States
trade or business. Dividends that are effectively connected with such a trade
or business will be subject to tax on a net basis (that is, after allowance of
deductions) at graduated rates, in the same manner as domestic stockholders
are taxed with respect to such dividends and are generally not subject to
withholding. Any such dividends received by a Non-U.S. Stockholder that is a
corporation may also be subject to an additional branch profits tax at a 30%
rate or such lower rate as may be specified by an applicable income tax
treaty.
Pursuant to current Treasury Regulations, dividends paid to an address in a
country outside the United States are generally presumed to be paid to a
resident of such country for purposes of determining the applicability of
withholding discussed above and the applicability of a tax treaty rate. Under
proposed Treasury Regulations, not currently in effect, however, a Non-U.S.
Stockholder who wished to claim the benefit of an applicable treaty rate would
be required to satisfy certain certification and other requirements. Under
certain treaties, lower withholding rates generally applicable to dividends do
not apply to dividends from a REIT, such as the Company. Certain certification
and disclosure requirements must be satisfied to be exempt from withholding
under the effectively connected income exemption discussed above.
Distributions in excess of current or accumulated earnings and profits of
the Company will not be taxable to a Non-U.S. Stockholder to the extent that
they do not exceed the adjusted basis of the stockholders's Common Stock, but
rather will reduce the adjusted basis of such stock. For FIRPTA withholding
purposes (discussed below), such distributions (i.e., distributions that are
not made out of earnings and profits) will be treated as consideration for the
sale or exchange of shares of Common Stock. To the extent that such
distributions exceed the adjusted basis of a Non-U.S. Stockholder's Common
Stock, they will give rise to gain from the sale or exchange of his stock, the
tax treatment of which is described below. If it cannot be determined at the
time a distribution is made whether or not such distribution will be in excess
of current or accumulated earnings and profits, the distribution will
generally be treated as a dividend for withholding purposes. However, amounts
thus withheld are generally refundable if it is subsequently determined that
such distribution was, in fact, in excess of current or accumulated earnings
and profits of the Company.
Distributions to a Non-U.S. Stockholder that are designated by the Company
at the time of distribution as capital gains dividends (other than those
arising from the disposition of a United States real property interest)
generally will not be subject to United States federal income taxation, unless
(i) investment in the Common Stock is effectively connected with the Non-U.S.
Stockholder's United States trade or business, in which case the Non-U.S.
Stockholder will be subject to the same treatment as domestic stockholders
with respect to such gain (except
153
<PAGE>
that a stockholder that is a foreign corporation may also be subject to the
30% branch profits tax, as discussed above), or (ii) the Non-U.S. Stockholder
is a nonresident alien individual who is present in the United States for 183
days or more during the taxable year and has a "tax home" in the United
States, in which case the nonresident alien individual will be subject to a
30% tax on the individual's capital gains.
Distributions to a Non-U.S. Stockholder that are attributable to gain from
sales or exchanges by the Company of United States real property interests
will cause the Non-U.S. Stockholder to be treated as recognizing such gain as
income effectively connected with a United States trade or business. Non-U.S.
Stockholders would thus generally be entitled to offset its gross income by
allowable deductions and would pay tax on the resulting taxable income at the
same rates applicable to domestic stockholders (subject to a special
alternative minimum tax in the case of nonresident alien individuals). Also,
such gain may be subject to a 30% branch profits tax in the hands of a Non-
U.S. Stockholder that is a corporation and is not entitled to treaty relief or
exemption, as discussed above. The Company is required to withhold 35% of any
such distribution. That amount is creditable against the Non-U.S.
Stockholder's United States federal income tax liability. To the extent that
such withholding exceeds the actual tax owed by the Non-U.S. Stockholder, the
Non-U.S. Stockholder may claim a refund from the IRS.
The Company or any nominee (e.g., a broker holding shares in street name)
may rely on a certificate of non-foreign status on Form W-8 or Form W-9 to
determine whether withholding is required on gains realized from the
disposition of United States real property interests. A domestic person who
holds shares of Common Stock on behalf of a Non-U.S. Stockholder will bear the
burden of withholding, provided that the Company has properly designated the
appropriate portion of a distribution as a capital gain dividend.
Sale of Common Stock. Gain recognized by a Non-U.S. Stockholder upon the
sale or exchange of shares of Common Stock generally will not be subject to
United States taxation unless such shares constitute a "United States real
property interest" within the meaning of the Foreign Investment in Real
Property Tax Act of 1980 ("FIRPTA"). The Common Stock will not constitute a
"United States real property interest" so long as the Company is a
"domestically controlled REIT." A "domestically controlled REIT" is a REIT in
which at all times during a specified testing period less than 50% in value of
its stock is held directly or indirectly by Non- U.S. Stockholders. The
Company believes that at the closing of the Offering it will be a
"domestically controlled REIT," and therefore that the sale of shares of
Common Stock will not be subject to taxation under FIRPTA. However, because
the shares of Common Stock will be publicly traded, no assurance can be given
that the Company will continue to be a "domestically-controlled REIT."
Notwithstanding the foregoing, gain from the sale or exchange of shares of
Common Stock not otherwise subject to FIRPTA will be taxable to a Non-U.S.
Stockholder if the Non-U.S. Stockholder is a nonresident alien individual who
is present in the United States for 183 days or more during the taxable year
and has a "tax home" in the United States. In such case, the nonresident alien
individual will be subject to a 30% United States withholding tax on the
amount of such individual's gain.
If the Company does not qualify as or ceases to be a "domestically-
controlled REIT," gain arising from the sale or exchange by a Non-U.S.
Stockholder of shares of Common Stock would be subject to United States
taxation under FIRPTA as a sale of a "United States real property interest"
unless the shares are "regularly traded" (as defined by applicable Treasury
Regulations) on an established securities market (e.g., the New York Stock
Exchange) and the selling Non-U.S. Stockholder held no more than 5% (after
applying certain constructive ownership rules) of the shares of Common Stock
during the shorter of (i) the period during which the taxpayer held such
shares, or (ii) the 5-year period ending on the date of the disposition of
such shares. If gain on the sale or exchange of shares of Common Stock were
subject to taxation under FIRPTA, the Non-U.S. Stockholder would be subject to
regular United States income tax with respect to such gain in the same manner
as a U.S. Stockholder (subject to any applicable alternative minimum tax, a
special alternative minimum tax in the case of nonresident alien individuals
and the possible application of the 30% branch profits tax in the case of
foreign corporations), and the purchaser of the stock would be required to
withhold and remit to the IRS 10% of the purchase price.
154
<PAGE>
Backup Withholding Tax and Information Reporting. Backup withholding tax
(which generally is a withholding tax imposed at the rate of 31% on certain
payments to persons that fail to furnish certain information under the United
States information reporting requirements) and information reporting will
generally not apply to distributions paid to Non-U.S. Stockholders outside the
United States that are treated as (i) dividends subject to the 30% (or lower
treaty rate) withholding tax discussed above, (ii) capital gains dividends or
(iii) distributions attributable to gain from the sale or exchange by the
Company of United States real property interests. As a general matter, backup
withholding and information reporting will not apply to a payment of the
proceeds of a sale of Common Stock by or through a foreign office of a foreign
broker. Information reporting (but not backup withholding) will apply,
however, to a payment of the proceeds of a sale of Common Stock by a foreign
office of a broker that (a) is a United States person, (b) derives 50% or more
of its gross income for certain periods from the conduct of a trade or
business in the United States or (c) is a "controlled foreign corporation"
(generally, a foreign corporation controlled by United States stockholders)
for United States tax purposes, unless the broker has documentary evidence in
its records that the holder is a Non-U.S. Stockholder and certain other
conditions are met, or the stockholder otherwise establishes an exemption.
Payment to or through a United States office of a broker of the proceeds of a
sale of Common Stock is subject to both backup withholding and information
reporting unless the stockholder certifies under penalty of perjury that the
stockholder is a Non-U.S. Stockholder, or otherwise establishes an exemption.
A Non-U.S. Stockholder may obtain a refund of any amounts withheld under the
backup withholding rules by filing the appropriate claim for refund with the
IRS.
New Proposed Regulations. The United States Treasury has recently issued
proposed Treasury Regulations regarding the withholding and information
reporting rules discussed above. In general, the proposed Treasury Regulations
do not alter the substantive withholding and information reporting
requirements but unify current certification procedures and forms and clarify
and modify reliance standards. If finalized in their current form, the
proposed Treasury Regulations would generally be effective for payments made
after December 31, 1997, subject to certain transition rules.
TAX ASPECTS OF THE OPERATING PARTNERSHIP
General. Substantially all of the Company's investments will be held
indirectly through the Operating Partnership. In general, partnerships are
"pass-through" entities which are not subject to federal income tax. Rather,
partners are allocated their proportionate shares of the items of income,
gain, loss, deduction and credit of a partnership, and are potentially subject
to tax thereon, without regard to whether the partners receive a distribution
from the partnership. The Company will include in its income its proportionate
share of the foregoing partnership items for purposes of the various REIT
income tests and in the computation of its REIT taxable income. Moreover, for
purposes of the REIT asset tests, the Company will include its proportionate
share of assets held by the Operating Partnership. See "--Taxation of the
Company."
Entity Classification. The Company's interest in the Operating Partnership
involves special tax considerations, including the possibility of a challenge
by the IRS of the status of the Operating Partnership as a partnership (as
opposed to an association taxable as a corporation) for federal income tax
purposes. If the Operating Partnership was treated as an association, it would
be taxable as a corporation and therefore be subject to an entity-level tax on
its income. In such a situation, the character of the Company's assets and
items of gross income would change and preclude the Company from satisfying
the asset tests and possibly the income tests (see "--Taxation of the
Company--Asset Tests" and "--Income Tests"), and in turn would prevent the
Company from qualifying as a REIT. See "Federal Income Tax Consequences--
Taxation of the Company--Failure to Qualify" above for a discussion of the
effect of the Company's failure to meet such tests for a taxable year. In
addition, a change in the Operating Partnership's status for tax purposes
might be treated as a taxable event in which case the Company might incur a
tax liability without any related cash distributions.
The IRS recently finalized and published certain Treasury Regulations (the
"Final Regulations") which provide that a domestic business entity not
otherwise classified as a corporation and which has at least two members (an
"Eligible Entity") may elect to be taxed as a partnership for federal income
tax purposes. The Final Regulations apply for tax periods beginning on or
after January 1, 1997 (the "Effective Date"). Unless it
155
<PAGE>
elects otherwise, an Eligible Entity in existence prior to the Effective Date
will have the same classification for federal income tax purposes that it
claimed under the entity classification Treasury Regulations in effect prior
to the Effective Date. In addition, an Eligible Entity which did not exist, or
did not claim a classification, prior to the Effective Date, will be
classified as a partnership for federal income tax purposes unless it elects
otherwise. The Company has not requested, and does not intend to request, a
ruling from the IRS that the Operating Partnership will be treated as a
partnership for federal income tax purposes. However, in connection with the
closing of the Formation Transactions, Latham & Watkins will deliver an
opinion to the Company stating that based on the provisions of the Partnership
Agreement, certain factual assumptions and representations described in the
opinion and the Final Regulations, the Operating Partnership will be treated
as a partnership for federal income tax purposes (and not as an association or
a publicly traded partnership taxable as a corporation). Unlike a private
letter ruling, an opinion of counsel is not binding on the IRS, and no
assurance can be given that the IRS will not challenge the status of the
Operating Partnership as a partnership for federal income tax purposes. If
such challenge were sustained by a court, the Operating Partnership could be
treated as a corporation for federal income tax purposes.
Partnership Allocations. Although a partnership agreement will generally
determine the allocation of income and loss among partners, such allocations
will be disregarded for tax purposes if they do not comply with the provisions
of Section 704(b) of the Code and the Treasury Regulations promulgated
thereunder. Generally, Section 704(b) and the Treasury Regulations promulgated
thereunder require that partnership allocations respect the economic
arrangement of the partners.
If an allocation is not recognized for federal income tax purposes, the item
subject to the allocation will be reallocated in accordance with the partners'
interests in the partnership, which will be determined by taking into account
all of the facts and circumstances relating to the economic arrangement of the
partners with respect to such item. The Operating Partnership's allocations of
taxable income and loss are intended to comply with the requirements of
Section 704(b) of the Code and the Treasury Regulations promulgated
thereunder.
The Partnership Agreement provides that net income or net loss of the
Operating Partnership will generally be allocated to the Company and the
limited partners in accordance with their respective percentage interests in
the Operating Partnership. Notwithstanding the foregoing, such agreement
provides that certain interest deductions and income from the discharge of
certain indebtedness of the Operating Partnership, attributable to loans
transferred to the Operating Partnership by certain Continuing Investors, will
be allocated disproportionately to such Continuing Investors. In addition,
allocations of net income or net loss will be subject to compliance with the
provisions of Sections 704(b) and 704(c) of the Code and the Treasury
Regulations promulgated thereunder.
Tax Allocations with Respect to the Properties. Pursuant to Section 704(c)
of the Code, income, gain, loss and deduction attributable to appreciated or
depreciated property (such as the Properties) that is contributed to a
partnership in exchange for an interest in the partnership, must be allocated
in a manner such that the contributing partner is charged with, or benefits
from, respectively, the unrealized gain or unrealized loss associated with the
property at the time of the contribution. The amount of such unrealized gain
or unrealized loss is generally equal to the difference between the fair
market value of contributed property at the time of contribution and the
adjusted tax basis of such property at such time (a "Book-Tax Difference").
Such allocations are solely for federal income tax purposes and do not affect
the book capital accounts or other economic or legal arrangements among the
partners. The Operating Partnership was formed by way of contributions of
appreciated property (including the Properties). Consequently, the Partnership
Agreement requires that such allocations be made in a manner consistent with
Section 704(c) of the Code.
In general, the principals of KI and other Continuing Investors who are
limited partners of the Operating Partnership will be allocated depreciation
deductions for tax purposes which are lower than such deductions would be if
determined on a pro rata basis. In addition, in the event of the disposition
of any of the contributed assets which have a Book-Tax Difference, all income
attributable to such Book-Tax Difference will generally be allocated to such
limited partners, and the Company will generally be allocated only its share
of capital gains
156
<PAGE>
attributable to appreciation, if any, occurring after the closing of the
Formation Transactions. This will tend to eliminate the Book-Tax Difference
over the life of the Operating Partnership. However, the special allocation
rules of Section 704(c) do not always entirely eliminate the Book-Tax
Difference on an annual basis or with respect to a specific taxable
transaction such as a sale. Thus, the carryover basis of the contributed
assets in the hands the Operating Partnership may cause the Company to be
allocated lower depreciation and other deductions, and possibly an amount of
taxable income in the event of a sale of such contributed assets in excess of
the economic or book income allocated to it as a result of such sale. This may
cause the Company to recognize taxable income in excess of cash proceeds,
which might adversely affect the Company's ability to comply with the REIT
distribution requirements. See "--Taxation of the Company--Annual Distribution
Requirements."
Treasury Regulations under Section 704(c) of the Code provide partnerships
with a choice of several methods of accounting for Book-Tax Differences,
including retention of the "traditional method" or the election of certain
methods which would permit any distortions caused by a Book-Tax Difference to
be entirely rectified on an annual basis or with respect to a specific taxable
transaction such as a sale. The Operating Partnership and the Company have not
yet decided which will be used to account for Book-Tax Differences with
respect to the Properties initially contributed to the Operating Partnership.
With respect to any property purchased by the Operating Partnership
subsequent to the admission of the Company to the Operating Partnership, such
property will initially have a tax basis equal to its fair market value, and
Section 704(c) of the Code will not apply.
Basis in Operating Partnership Interest. The Company's adjusted tax basis in
its interest in the Operating Partnership generally (i) will be equal to the
amount of cash and the basis of any other property contributed to the
Operating Partnership by the Company, (ii) will be increased by (a) its
allocable share of the Operating Partnership's income and (b) its allocable
share of indebtedness of the Operating Partnership and (iii) will be reduced,
but not below zero, by the Company's allocable share of (a) losses suffered by
the Operating Partnership, (b) the amount of cash distributed to the Company
and (c) by constructive distributions resulting from a reduction in the
Company's share of indebtedness of the Operating Partnership.
If the allocation of the Company's distributive share of the Operating
Partnership's loss exceeds the adjusted tax basis of the Company's partnership
interest in the Operating Partnership, the recognition of such excess loss
will be deferred until such time and to the extent that the Company has
adjusted tax basis in its interest in the Operating Partnership. To the extent
that the Operating Partnership's distributions, or any decrease in the
Company's share of the indebtedness of the Operating Partnership (such
decreases being considered a constructive cash distribution to the partners),
exceeds the Company's adjusted tax basis, such excess distributions (including
such constructive distributions) will constitute taxable income to the
Company. Such taxable income will normally be characterized as a capital gain,
and if the Company's interest in the Operating Partnership has been held for
longer than the long-term capital gain holding period (currently one year),
such distributions and constructive distributions will constitute long-term
capital gain.
SERVICES COMPANY
A portion of the cash to be used by the Operating Partnership to fund
distributions to partners, and in turn to fund distributions by the Company to
its stockholders, is expected to come from the Services Company, through
dividends on nonvoting preferred stock to be held by the Operating
Partnership. The Services Company will not qualify as a REIT and will pay
federal, state and local income taxes on its taxable income at normal
corporate rates. The federal, state and local income taxes that the Services
Company is required to pay will reduce the cash available for distribution by
the Company to its stockholders.
As described above, the value of the Company's indirect interest in the
securities of the Services Company held by the Operating Partnership cannot
exceed 5% of the value of the Company's total assets at the end of any
calendar quarter in which the Company acquires such securities or increases
its interest in such securities (including as a result of the Company
increasing its interest in the Operating Partnership). See "--Taxation of
157
<PAGE>
the Company--Asset Tests." This limitation may restrict the ability of the
Services Company to increase the size of its business unless the value of the
assets of the Company or the Operating Partnership is increasing at a
commensurate rate.
OTHER TAX CONSEQUENCES
The Company and its stockholders may be subject to state or local taxation
in various state or local jurisdictions, including those in which it or they
transact business or reside. The state and local tax treatment of the Company
and its stockholders may not conform to the federal income tax consequences
discussed above. Consequently, prospective stockholders should consult their
own tax advisors regarding the effect of state and local tax laws on an
investment in the Company.
ERISA CONSIDERATIONS
The following is a summary of material considerations arising under ERISA
and the prohibited transaction provisions of Section 4975 of the Code that may
be relevant to a prospective purchaser (including, with respect to the
discussion contained in "--Status of the Company, the Operating Partnership
and the Partnerships under ERISA," to a prospective purchaser that is not an
employee benefit plan, another tax-qualified retirement plan or an individual
retirement account ("IRA")). This discussion does not propose to deal with all
aspects of ERISA or Section 4975 of the Code or, to the extent not preempted,
state law that may be relevant to particular employee benefit plan
shareholders (including plans subject to Title I of ERISA, other employee
benefit plans and IRAs subject to the prohibited transaction provisions of
Section 4975 of the Code, and governmental plans and church plans that are
exempt from ERISA and Section 4975 of the Code but that may be subject to
state law requirements) in light of their particular circumstances.
A FIDUCIARY MAKING THE DECISION TO INVEST IN SHARES OF COMMON STOCK ON
BEHALF OF A PROSPECTIVE PURCHASER WHICH IS AN ERISA PLAN, A TAX-QUALIFIED
RETIREMENT PLAN, AN IRA OR OTHER EMPLOYEE BENEFIT PLAN IS ADVISED TO CONSULT
ITS OWN LEGAL ADVISOR REGARDING THE SPECIFIC CONSIDERATIONS ARISING UNDER
ERISA, SECTION 4975 OF THE CODE, AND (TO THE EXTENT NOT PRE-EMPTED) STATE LAW
WITH RESPECT TO THE PURCHASE, OWNERSHIP OR SALE OF SHARES OF COMMON STOCK BY
SUCH PLAN OR IRA. Plans should also consider the entire discussion under the
heading "Federal Income Tax Considerations," as material contained therein is
relevant to any decision by an employee benefit plan, tax-qualified retirement
plan or IRA to purchase the Common Stock.
EMPLOYEE BENEFIT PLANS, TAX-QUALIFIED RETIREMENT PLANS AND IRAS
Each fiduciary of an employee benefit plan subject to Title I of ERISA (an
"ERISA Plan") should carefully consider whether an investment in shares of
Common Stock is consistent with its fiduciary responsibilities under ERISA. In
particular, the fiduciary requirements of Part 4 of Title I of ERISA require
(i) an ERISA Plan's investments to be prudent and in the best interests of the
ERISA Plan, its participants and beneficiaries, (ii) an ERISA Plan's
investments to be diversified in order to reduce the risk of large losses,
unless it is clearly prudent not to do so, (iii) an ERISA Plan's investments
to be authorized under ERISA and the terms of the governing documents of the
ERISA Plan and (iv) that the fiduciary not cause the ERISA Plan to enter into
transactions prohibited under Section 406 of ERISA. In determining whether an
investment in shares of Common Stock is prudent for purposes of ERISA, the
appropriate fiduciary of an ERISA Plan should consider all of the facts and
circumstances, including whether the investment is reasonably designed, as a
part of the ERISA Plan's portfolio for which the fiduciary has investment
responsibility, to meet the objectives of the ERISA Plan, taking into
consideration the risk of loss and opportunity for gain (or other return) from
the investment, the diversification, cash flow and funding requirements of the
ERISA Plan, and the liquidity and current return of the ERISA Plan's
158
<PAGE>
portfolio. A fiduciary should also take into account the nature of the
Company's business, the length of the Company's operating history and other
matters described under "Risk Factors."
The fiduciary of an IRA or of an employee benefit plan not subject to Title
I of ERISA because it is a governmental or church plan or because it does not
cover common law employees (a "Non-ERISA Plan") should consider that such an
IRA or Non-ERISA Plan may only make investments that are authorized by the
appropriate governing documents, not prohibited under Section 4975 of the Code
and permitted under applicable state law.
STATUS OF THE COMPANY, THE OPERATING PARTNERSHIP AND THE SERVICES COMPANY
UNDER ERISA
A prohibited transaction may occur if the assets of the Company are deemed
to be assets of the investing Plans and disqualified persons deal with such
assets. In certain circumstances where a Plan holds an interest in an entity,
the assets of the entity are deemed to be Plan assets (the "look-through
rule"). Under such circumstances, any person that exercises authority or
control with respect to the management or disposition of such assets is a Plan
fiduciary. Plan assets are not defined in ERISA or the Code, but the United
States Department of Labor has issued regulations, effective March 13, 1987
(the "Regulations"), that outline the circumstances under which a Plan's
interest in an entity will be subject to the look-through rule.
The Regulations apply only to the purchase by a Plan of an "equity interest"
in an entity, such as common stock of a REIT. However, the Regulations provide
an exception to the look-through rule for equity interests that are "publicly-
offered securities."
Under the Regulations, a "publicly-offered security" is a security that is
(i) freely transferable, (ii) part of a class of securities that is widely-
held and (iii) either (a) part of a class of securities that is registered
under section 12(b) or 12(g) of the Exchange Act or (b) sold to a Plan as part
of an offering of securities to the public pursuant to an effective
registration statement under the Securities Act and the class of securities of
which such security is a part is registered under the Exchange Act within 120
days (or such longer period allowed by the Securities and Exchange Commission)
after the end of the fiscal year of the issuer during which the offering of
such securities to the public occurred. Whether a security is considered
"freely transferable" depends on the facts and circumstances of each case.
Generally, if the security is part of an offering in which the minimum
investment is $10,000 or less, any restriction on or prohibition against any
transfer or assignment of such security for the purposes of preventing a
termination or reclassification of the entity for federal or state tax
purposes will not of itself prevent the security from being considered freely
transferable. A class of securities is considered "widely-held" if it is a
class of securities that is owned by 100 or more investors independent of the
issuer and of one another.
The Company anticipates that the Common Stock will meet the criteria of the
publicly-offered securities exception to the look-through rule. First, the
Company anticipates that the Common Stock will be considered to be freely
transferable, as the minimum investment will be less than $10,000 and the only
restrictions upon its transfer are those required under federal tax laws to
maintain the Company's status as a REIT. Second, the Company believes that the
Common Stock will be held by 100 or more investors and that at least 100 or
more of these investors will be independent of the Company and of one another.
Third, the Common Stock will be part of an offering of securities to the
public pursuant to an effective registration statement under the Securities
Act and will be registered under the Exchange Act within 120 days after the
end of the fiscal year of the Company during which the offering of such
securities to the public occurs. Accordingly, the Company believes that if a
Plan purchases the Common Stock, the Company's assets should not be deemed to
be Plan assets and, therefore, that any person who exercises authority or
control with respect to the Company's assets should not be a Plan fiduciary.
159
<PAGE>
UNDERWRITING
The Underwriters named below (the "Underwriters"), for whom Prudential
Securities Incorporated ("Prudential Securities"), Donaldson, Lufkin &
Jenrette Securities Corporation, J.P. Morgan Securities Inc. and Smith Barney
Inc. are acting as representatives ("Representatives"), have severally agreed,
subject to the terms and conditions contained in the Underwriting Agreement,
to purchase from the Company the number of shares of Common Stock set forth
below opposite their respective names:
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITER SHARES
----------- ----------
<S> <C>
Prudential Securities Incorporated................................
Donaldson, Lufkin & Jenrette Securities Corporation...............
J.P. Morgan Securities Inc........................................
Smith Barney Inc..................................................
----------
Total......................................................... 12,500,000
==========
</TABLE>
The Company is obligated to sell, and the Underwriters are obligated to
purchase, all of the shares of Common Stock offered hereby if any are
purchased.
The Underwriters, through their Representatives, have advised the Company
that they propose to offer the shares of Common Stock to the public initially
at the public offering price set forth on the cover page of this Prospectus;
that the Underwriters may allow to selected dealers a concession of $ per
share, and that such dealers may re-allow a concession of $ per share to
certain other dealers. After the initial public offering, the offering price
and the concessions may be changed by the Representatives.
The Company has granted the Underwriters an option, exercisable for 30 days
from the date of this Prospectus, to purchase up to 1,875,000 additional
shares of Common Stock at the initial public offering price, less the
underwriting discounts and commissions, as set forth on the cover page of this
Prospectus. The Underwriters may exercise such option solely for the purpose
of covering over-allotments incurred in the sale of shares of Common Stock
offered hereby. To the extent such option to purchase is exercised, each
Underwriter will become obligated, subject to certain conditions, to purchase
approximately the same percentage of such additional shares of Common Stock as
the number set forth next to such Underwriter's name in the preceding table
bears to 12,500,000.
The Company has agreed to indemnify the several Underwriters against or to
contribute to losses arising out of certain liabilities, including liabilities
under the Securities Act. The Company has been advised that, in the opinion of
the Commission, such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. Nevertheless, the
Underwriters may seek to enforce such indemnification and rights to
contribution which are expressly provided under the Act.
The Representatives of the Underwriters have informed the Company that the
Underwriters do not intend to confirm sales to any accounts over which they
exercise discretionary authority.
Each of the Continuing Investors has agreed not to, directly or indirectly,
offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise sell or dispose (or announce any offer, sale, offer of
sale, pledge, grant of any option to purchase or other sale or disposition) of
any Units or shares of Common Stock or other capital stock of the Company, or
any securities convertible or exercisable or exchangeable for any Units or
shares of Common Stock or other capital stock for a period of two years from
the date of this Prospectus, and the Company has agreed not to offer, sell,
offer to sell, contract to sell, grant any option to purchase or otherwise
sell or dispose (or announce any offer, sale, offer of sale, contract of sale,
pledge, grant of any option to purchase or other sale or disposition) of any
(other than pursuant to the Stock Incentive Plan) shares of Common Stock or
other capital stock of the Company, or any securities convertible or
exercisable or exchangeable for any Units or shares of Common Stock or other
capital stock of the Company, for a period of 180 days from the date of this
Prospectus, in each case without the prior written consent of Prudential
160
<PAGE>
Securities, on behalf of the Underwriters, subject to certain limited
exceptions. Notwithstanding the foregoing, 50% of the Units received by John
B. Kilroy, Sr., John B. Kilroy, Jr. and Kilroy Industries in connection with
the Formation Transactions will be pledged to secure their indemnification
obligations pursuant to an agreement with the Company. See "Formation and
Structure of the Company."
The shares of Common Stock have been approved for listing on the NYSE,
subject to official notice of issuance. In order to meet one of the
requirements for listing the shares of Common Stock on the NYSE, the
Underwriters have undertaken to sell (i) lots of 100 or more shares to a
minimum of 2,000 beneficial holders, (ii) a minimum of 1.1 million shares and
(iii) shares with a minimum aggregate market value of $40.0 million.
Prior to the Offering, there has been no public market for the Common Stock.
The initial public offering price will be determined through negotiations
between the Company and the Representatives. Among the factors to be
considered in such determination were prevailing market conditions, dividend
yields and financial characteristics of publicly traded REITs that the Company
and the Representatives believe to be comparable to the Company, the present
state of the Company's financial and business operations, the Company's
management, estimates of the business and earnings potential of the Company
and the prospects for the industry in which the Company operates.
An affiliate of J.P. Morgan & Co. is expected to provide the Mortgage Loans
and the proposed Credit Facility. In such event, the Company will pay (i) a
debt placement fee to an affiliate of J.P. Morgan & Co. for (a) the
$84.0 Million Loan equal to 0.5% of the principal amount thereof and (b) the
SeaTac Loan equal to 1.5% of the principal amount thereof, and (ii) an
origination fee to an affiliate of J.P. Morgan & Co. for the proposed Credit
Facility equal to 1.0% of the maximum amount available thereunder. It is
expected that an affiliate of Prudential Securities will participate in the
Credit Facility.
Upon consummation of the Offering, Prudential Securities will receive
approximately $31.0 million of the net proceeds from the Offering as repayment
of indebtedness, fees and related interest expected to be accrued and unpaid
as of such date. See "Use of Proceeds."
The Prudential Insurance Company of America, an affiliate of Prudential
Securities, is a tenant in one of the Office Properties located in Kilroy Long
Beach, leasing approximately 2,189 square feet of space.
The Company will pay to the Representatives advisory fees equal, in the
aggregate, to 0.75% of the gross proceeds received by the Company in the
Offering, for investment banking services relating to, among other things, the
structuring of the Formation Transactions and the Offering.
LEGAL MATTERS
Certain legal matters in connection with the Offering will be passed upon
for the Company by Latham & Watkins, Los Angeles, California. Legal matters
relating to Maryland law, including the validity of the issuance of the shares
of Common Stock offered hereby, will be passed upon for the Company by Ballard
Spahr Andrews & Ingersoll, Baltimore, Maryland. Certain legal matters will be
passed upon for the Underwriters by Kaye, Scholer, Fierman, Hays & Handler,
LLP, New York, New York. In addition, the description of federal income tax
consequences contained in this Prospectus under "Federal Income Tax
Consequences" is, to the extent that it constitutes matters of law, summaries
of legal matters or legal conclusions, the opinion of Latham & Watkins,
special tax counsel to the Company as to the material federal income tax
consequences of the Offering.
EXPERTS
The financial statements of Kilroy Realty Corporation as of September 30,
1996, the Kilroy Group as of September 30, 1996, December 31, 1995 and 1994
and for each of the three years in the period ended December 31, 1995 and the
nine months ended September 30, 1995 and 1996 and the Acquisition Properties
for
161
<PAGE>
the year ended December 31, 1995 and the nine months ended September 30, 1996
included in this Prospectus and the related financial statement schedule
included elsewhere in the Registration Statement have been audited by Deloitte
& Touche LLP, independent auditors, as stated in their reports appearing
herein and elsewhere in the registration statement, and are included in
reliance on the reports of such firm, given upon their authority as experts in
auditing and accounting.
In addition, certain statistical information provided under the captions
"Prospectus Summary--The Company's Southern California Submarkets" and
"Business and Properties--The Company's Southern California Submarkets" has
been prepared by Robert Charles Lesser & Co., and is included herein in
reliance upon the authority of such firm as expert in, among other things,
real estate consulting and urban economics.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission"), 450 Fifth Street N.W., Washington, D.C. 20599, a Registration
Statement (of which this Prospectus is a part) on Form S-11 under the
Securities Act and the rules and regulations promulgated thereunder with
respect to the securities offered hereby. This Prospectus does not contain all
the information set forth in the Registration Statement and the exhibits and
financial statements thereto, certain portions of which have been omitted as
permitted by the rules and regulations of the Commission. Statements contained
in this Prospectus as to the content of any contract or other document are not
necessarily complete, and in each instance reference is made to the copy of
such contract or other document filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such
reference and the exhibits and schedules hereto. For further information
regarding the Company and the Common Stock offered hereby, reference is hereby
made to the Registration Statement and such exhibits and schedules, copies of
which may be examined without charge at, or copies obtained upon payment of
prescribed fees from, the Public Reference Section of the Commission at Room
1204, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the following regional offices of the Commission: 7 World Trade Center, 13th
Floor, New York, New York 10048 and Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511, or by way of the Commission's
Internet address, http://www.sec.gov.
Following the consummation of the Offering, the Company will be required to
file reports and other information with the Commission pursuant to the
Exchange Act. In addition to applicable legal or New York Stock Exchange
requirements, if any, the Company intends to furnish its stockholders with
annual reports containing consolidated audited financial statements with a
report thereon by the Company's independent certified public accountants and
with quarterly reports containing unaudited condensed consolidated financial
statements for each of the first three quarters of each fiscal year.
162
<PAGE>
GLOSSARY
"Acquisition Properties" means the two office buildings and related assets
that comprise Kilroy Long Beach Phase I, the Thousand Oaks Office Property and
the Office and Industrial Properties located at 4123-4175 East La Palma,
Anaheim, California that are expected to be acquired by the Company
concurrently with the completion of the Offering, including, with respect to
Kilroy Long Beach Phase I, the ground lease with respect thereto, and the
Industrial Property located at 15752-12822 Monarch Street, Garden Grove,
California which was purchased by KI on behalf of the Company prior to
consummation of the Offering and will be assigned to the Company upon
consummation of the Offering.
"ADA" means the Americans with Disabilities Act, enacted on July 26, 1990.
"Audit Committee" means the audit committee of the Board of Directors.
"base rent" means gross rent excluding payments by tenants on account of
real estate taxes, operating expenses and utility expenses.
"Class A office buildings" means office buildings that have excellent
location and access, attract major corporate tenants, have high quality
finishes, are well maintained, professionally managed and are either new
buildings or buildings that are competitive with new buildings.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means common stock, par value $.01 per share, of the Company.
"Company" means Kilroy Realty Corporation and its consolidated subsidiaries
and the Services Company.
"Continuing Investors" shall mean the persons and entities receiving Units
in connection with the Formation Transactions. See "Note 1. Organization and
Basis of Presentation" to the Combined Financial Statements of the Kilroy
Group.
"Credit Facility" means the $100.0 million revolving credit facility that
the Company expects to enter into shortly after consummation of the Offering.
"$84.0 Million Loan" means the $84.0 million mortgage loan secured by
certain of the Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Committee" means the executive committee of the Board of
Directors.
"Formation Transactions" means those transactions relating to the
organization of the Company and its subsidiaries, including the transfer of
the Properties and other assets to the Company, as described under "Formation
and Structure of the Company--Formation Transactions."
"Funds from Operations" means, in accordance with the resolution adopted by
the Board of Governors of NAREIT in its March 1995 White Paper, net income
(loss) computed in accordance with GAAP, excluding gains (or losses) from debt
restructuring and sales of property, plus real estate related depreciation and
amortization (excluding amortization of deferred financing costs), and after
adjustments for unconsolidated partnerships and joint ventures.
"Independent Director" means a director of the Company who is not an
employee, officer or affiliate of the Company or a subsidiary or division
thereof, or a relative of a principal executive officer, and who is not an
163
<PAGE>
individual member of an organization acting as advisor, consultant or legal
counsel, receiving compensation on a continuing basis from the Company in
addition to director's fees.
"Industrial Properties" means the 12 industrial properties in which the
Company will have an ownership interest upon completion of the Offering,
including the Industrial Property located at 15752-12822 Monarch Street,
Garden Grove, California which was purchased by KI on behalf of the Company
prior to consummation of the Offering and will be assigned to the Company upon
consummation of the Offering.
"IRAs" means individual retirement accounts.
"IRS" means the Internal Revenue Service.
"KI" means Kilroy Industries, a California corporation, that operated the
Company's business prior to the consummation of the Offering and the Formation
Transactions.
"Kilroy Group" means KI and the partnerships and trusts affiliated with KI
that prior to the Offering owned the Properties (other than the Acquisition
Properties) and other assets being transferred to the Company in the Formation
Transactions. See "Note 1. Organization and Basis of Presentation" of the
historical financial statements of the Kilroy Group.
"Kilroy Realty Corporation" means Kilroy Realty Corporation, a Maryland
corporation with its principal office at 2250 East Imperial Highway, Suite
1200, El Segundo, California 90245.
"LAX" means Los Angeles International Airport.
"look-through rule" means the ERISA rule providing that in certain
circumstances where a Plan holds an interest in an entity, the assets of the
entity are deemed to be the Plan's assets.
"MGCL" means the Maryland General Corporation Law.
"Mortgage Loans" means the $96.0 million mortgage loans, the closing of
which is a condition to the completion of the Offering, to be obtained by the
Company concurrently with the consummation of the Offering.
"NAREIT" means the National Association of Real Estate Investment Trusts.
"net absorption" means, with respect to a specified market area, the net
increase in occupied rentable space.
"NYSE" means the New York Stock Exchange, Inc.
"Offering" means the initial public offering of shares of Common Stock of
Kilroy Realty Corporation pursuant to and as described in this Prospectus.
"Office Properties" means the 14 office properties in which the Company will
have an ownership interest upon completion of the Offering, including
consummation of the Formation Transactions and acquisition of the Acquisition
Properties.
"Omnibus Agreement" means the agreement by and among each of the Continuing
Investors and the Company pursuant to which the Continuing Investors will
contribute their interests in the Properties (other than the Acquisition
Properties), and certain other assets, in exchange for Units representing
limited partnership interests in the Operating Partnership.
"Operating Partnership" means Kilroy Realty, L.P., a Delaware limited
partnership with its office at 2250 East Imperial Highway, Suite 1200, El
Segundo, California 90245, organized in the Formation Transactions and through
which all of the Company's interests in the Properties will be held and real
estate activities will be conducted.
164
<PAGE>
"Ownership Limit" means the restriction contained in the Company's Articles
of Incorporation providing that, subject to certain exceptions, no holder may
own, or be deemed to own by virtue of the constructive ownership provisions of
the Code, more than 7.0% (by number or value, whichever is more restrictive)
of the outstanding shares of Common Stock.
"Partnership Agreement" means the Amended and Restated Agreement of Limited
Partnership of the Operating Partnership, as amended from time to time.
"Partnerships" means those corporations, general and limited partnerships
and trusts affiliated with Kilroy Industries whose Properties are being
acquired by the Operating Partnership.
"Plans" means employee benefit plans and IRAs.
"Preferred Stock" means shares of preferred stock, par value $.01 per share,
of the Company.
"Properties" means the real property and related assets owned by the
Partnerships and contributed to the Company by the Continuing Investors in
connection with the Formation Transactions, including, but not limited to,
real property and the Acquisition Properties.
"Prospectus" means this prospectus relating to the sale of up to 12,500,000
shares of Common Stock of the Company in the Offering, plus the 1,875,000
shares subject to the Underwriters' over-allotment option.
"Regulations" means regulations issued by the United States Department of
Labor defining "plan assets."
"REIT" means a real estate investment trust as defined in Section 856 of the
Code which meets the requirements for qualification as a REIT described in
Sections 856 through 860 of the Code.
"Related Party Tenant" means a tenant of a REIT in which the REIT, or an
owner of 10% or more of the REIT, actually or constructively owns a 10% or
greater ownership interest.
"rentable square feet" means a building's usable area plus common areas and
penetrations, expressed collectively in square feet which are allocated pro
rata to tenants.
"Representatives" means Prudential Securities Incorporated, Donaldson,
Lufkin & Jenrette Securities Corporation, J.P. Morgan Securities Inc. and
Smith Barney Inc., as representatives of the Underwriters.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"SeaTac Loan" means the $12.0 million mortgage loan secured by the SeaTac
Office Center.
"Securities Act" means the Securities Act of 1933, as amended.
"Services Company" means Kilroy Services, Inc., a Maryland corporation with
its principal office at 2250 East Imperial Highway, El Segundo, CA 90245,
which will perform the Company's development activities and third party
development services, and the economic value of which will be owned 95.0% by
the Operating Partnership and 5.0% collectively by John B. Kilroy, Sr. and
John B. Kilroy, Jr.
"Southern California Area" means the counties of Los Angeles, Orange,
Riverside, San Bernardino and Ventura.
"Stock Incentive Plan" means the Company's stock incentive plan, as further
described in this Prospectus under the caption entitled "Management--Stock
Incentive Plan."
"Thousand Oaks Office Property" means the office building and related realty
located at 2829 Townsgate Road, Thousand Oaks, California.
165
<PAGE>
"Treasury Regulations" means regulations of the U.S. Department of Treasury
under the Code.
"triple net basis lease" means a lease pursuant to which a tenant is
responsible for the base rent in addition to the costs and expenses in
connection with and related to property taxes, insurance and repairs and
maintenance applicable to the leased space.
"Underwriters" means each of the Underwriters named in the section of this
Prospectus entitled "Underwriting."
"Underwriting Agreement" means the Underwriting Agreement between the
Company and the Representatives relating to the purchase of the Common Stock
offered hereby.
"Units" means limited and general partnership interests representing an
ownership interest in the Operating Partnership.
166
<PAGE>
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Kilroy Realty Corporation
Pro Forma (Unaudited):
Pro Forma Condensed Consolidated Balance Sheet as of September 30,
1996................................................................... F-2
Notes to Pro Forma Condensed Consolidated Balance Sheet................. F-3
Pro Forma Condensed Consolidated Statements of Operations for the nine
months ended September 30, 1996 and the year ended December 31, 1995... F-5
Notes to Pro Forma Condensed Consolidated Statements of Operations...... F-7
Historical:
Independent Auditors' Report............................................ F-8
Balance Sheet as of September 30, 1996.................................. F-9
Notes to Balance Sheet.................................................. F-10
Kilroy Group (Predecessor Affiliates)
Independent Auditors' Report............................................ F-12
Combined Balance Sheets as of September 30, 1996, and December 31, 1995
and 1994............................................................... F-13
Combined Statements of Operations for the nine months ended September
30, 1996 and 1995 and the three years ended December 31, 1995, 1994 and
1993................................................................... F-14
Combined Statements of Accumulated Deficit for the three years ended
December 31, 1995, 1994 and 1993 and nine months ended September 30,
1996................................................................... F-15
Combined Statements of Cash Flows for the nine months ended September
30, 1996 and 1995 and the three years ended December 31, 1995, 1994 and
1993................................................................... F-16
Notes to Combined Financial Statements.................................. F-17
Acquisition Properties
Independent Auditors' Report............................................ F-27
Combined Historical Summaries of Certain Revenues and Certain Expenses
for the nine months ended September 30, 1996 and for the year ended
December 31, 1995...................................................... F-28
Notes to Combined Historical Summaries of Certain Revenues and Certain
Expenses............................................................... F-29
</TABLE>
F-1
<PAGE>
KILROY REALTY CORPORATION
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1996
(UNAUDITED)
(DOLLARS IN THOUSANDS)
This unaudited pro forma condensed consolidated balance sheet is presented
as if (i) the transfer of the Properties and business and operations of the
Kilroy Group pursuant to the Formation Transactions and (ii) the Offering, the
Mortgage Loans and use of proceeds to repay indebtedness and purchase the
Acquisition Properties had each occurred on September 30, 1996. Such pro forma
information is based upon the historical balance sheet of the Kilroy Group at
September 30, 1996. The acquisition of the Properties (other than the
Acquisition Properties) and business and operations of the Kilroy Group will
be recorded by the Company at the historical cost reflected in the Kilroy
Group financial statements. The historical cost basis, similar to a pooling of
interests, will be used because these Properties have been under the common
control of John B. Kilroy, Sr. and John B. Kilroy, Jr. The purchase of the
Acquisition Properties will be accounted for as a purchase transaction. Future
acquisitions, including the possible purchase of Excluded Properties, will be
accounted as purchase transactions. This pro forma condensed balance sheet
should be read in conjunction with the pro forma condensed statement of
operations of the Company and the historical combined financial statements and
notes thereto of the Kilroy Group and the historical combined summaries of
certain revenues and certain expenses of the Acquisition Properties included
elsewhere in this Prospectus. See "The Company" and "Use of Proceeds."
The unaudited pro forma condensed balance sheet is not necessarily
indicative of what the actual financial position of the Company would have
been assuming the Company had been formed and the consummation of the
Formation Transactions, the Offering and the Mortgage Loans and the use of
proceeds thereof, and the acquisition of the Acquisition Properties at
September 30, 1996, nor does it purport to represent the future financial
position of the Company.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1996
-------------------------------------------------------
KILROY REALTY
KILROY REALTY KILROY CORPORATION
CORPORATION GROUP ACQUISITION PRO FORMA PRO FORMA
HISTORICAL HISTORICAL PROPERTIES ADJUSTMENTS CONSOLIDATED
------------- ---------- ----------- ----------- -------------
(A) (B)
ASSETS
<S> <C> <C> <C> <C> <C>
Rental properties, net
of accumulated
depreciation and
amortization........... $ -- $ 119,405 $ 58,022 (C) $ -- $177,427
Cash and cash
equivalents............ 1 (58,022)(C) 129,958 (D) 71,937
Tenant receivables,
net.................... 3,363 3,363
Deferred charges and
other assets, net of
accumulated
amortization........... 8,294 24 (E) 8,318
--------- --------- -------- --------- --------
Total................ $ 1 $ 131,062 -- $ 129,982 $261,045
========= ========= ======== ========= ========
<CAPTION>
LIABILITIES AND
STOCKHOLDERS'
EQUITY (DEFICIT)
<S> <C> <C> <C> <C> <C>
Liabilities:
Debt................... $ -- $ 224,046 $(128,046)(F) $ 96,000
Accounts payable and
accrued expenses...... 2,600 2,600
Accrued construction
costs................. 460 (460)(G)
Accrued property
taxes................. 1,007 1,007
Accrued interest
payable............... 3,538 (3,538)(H)
Accrued cost of option
buy-out and tenant
improvements.......... 3,650 (2,260)(I) 1,390
Rent received in
advance and tenant
security deposits..... 8,984 8,984
--------- --------- -------- --------- --------
Total liabilities.... 244,285 (134,304) 109,981
--------- --------- -------- --------- --------
Minority interest....... 26,285 (J) 26,285
--------- --------- -------- --------- --------
Stockholders' equity
(deficit):
Common stock........... 1 125 (K) 126
Additional paid-in
capital............... 264,161 (K) 124,653
(26,285)(J)
(113,223)(L)
Accumulated deficit.... (113,223) 113,223 (L)
--------- --------- -------- --------- --------
Total stockholders'
equity (deficit).... 1 (113,223) 238,001 124,779
--------- --------- -------- --------- --------
Total................ $ 1 $ 131,062 $ 129,982 $261,045
========= ========= ======== ========= ========
</TABLE>
F-2
<PAGE>
KILROY REALTY CORPORATION
NOTES TO PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET (UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
PRO FORMA ADJUSTMENTS
These pro forma adjustments are to reflect the Offering, the Formation
Transactions, including the transfer of the Properties (other than the
Acquisition Properties), the purchase of the Acquisition Properties and the
Mortgage Loans and the use of proceeds thereof.
(A) Reflects Kilroy Realty Corporation audited balance sheet as of September
30, 1996.
(B) Reflects Kilroy Group audited historical combined balance sheet as of
September 30, 1996.
(C) Reflects the cost of the Acquisition Properties.
The Acquisition Properties, all of which will be acquired from unaffiliated
third parties, are as follows:
<TABLE>
<CAPTION>
PROPERTY CASH PURCHASE PRICE SELLER
-------- ------------------- ------
<S> <C> <C>
Westlake Plaza Centre.... $13,235 Westlake Plaza Partners
Long Beach Phase I....... 23,488 The Northwestern Mutual Life
Insurance Company
La Palma Business
Center.................. 12,208 Horowitz Brothers 1975 Trust
Monarch Building......... 9,091 ARGO REO Limited Partnership
-------
Total................ $58,022
=======
</TABLE>
The acquisition of the Acquisition Properties will be accounted for as
purchase transactions. The operations of the Sellers were not acquired and
land and buildings were the only assets purchased. The cost of the
properties will be allocated as follows:
<TABLE>
<S> <C>
Land............................................................. $19,297
Buildings and improvements....................................... 38,725
-------
$58,022
=======
</TABLE>
(D) The adjustment to pro forma cash and cash equivalents was determined as
follows:
<TABLE>
<S> <C>
. Net proceeds from the Offering after underwriting discount and
estimated issuance costs of $24,228............................ $ 257,022
. Net proceeds from the $84.0 Million Loan bearing interest at
8.2% and the $12.0 million SeaTac Loan bearing interest at 30-
day LIBOR plus 300 basis points after estimated issuance cost
of $480........................................................ 95,520
---------
. Net proceeds................................................... 352,542
. Repayment of mortgage debts net of forgiveness of $4,062 and
including $338 of additional loan fees ........................ (220,322)
. Purchase of Acquisition Properties............................. (58,022)
. Payment of accrued interest.................................... (912)
. Payment of debt issuance costs................................. (1,350)
---------
Net increase in cash and cash equivalents........................ $ 71,936
=========
(E) Reflects the net increase as follows:
. Issuance costs of the Mortgage Loans and the $100 million
Credit Facility................................................ $ 1,830
. Write-off of loan costs relating to repayment of mortgage
debt........................................................... (1,806)
---------
Net increase in deferred charge.................................. $ 24
=========
</TABLE>
F-3
<PAGE>
KILROY REALTY CORPORATION
NOTES TO PRO FORMA CONDENSED CONSOLIDATED
BALANCE SHEET (UNAUDITED)--(CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
(F) Reflects the net decrease as follows:
<TABLE>
<S> <C>
. Issuance of $84.0 Million Loan payable monthly until maturity
in 2005....................................................... $ 84,000
. Issuance of $12.0 million SeaTac Loan......................... 12,000
. Repayment of mortgage debt from net proceeds of the Offering
and the Mortgage Loans........................................ (224,046)
---------
Net decrease in mortgage debt................................... $(128,046)
=========
</TABLE>
(G) Amount represents a liability for construction costs which will not be
assumed by Kilroy Realty Corporation.
(H) Amount represents accrued interest which will not be assumed by Kilroy
Realty Corporation ($732) and accrued interest forgiven ($1,894) and paid
($912) in connection with the repayment of mortgage debt.
(I) Amount represents the portion of accrued cost of option buy-out which will
not be assumed by Kilroy Realty Corporation.
(J) Reflects the estimated minority interest of the Continuing Investors in
the Operating Partnership computed as follows:
<TABLE>
<S> <C>
Pro forma total assets............................................. $261,044
Pro forma total liabilities........................................ (109,981)
--------
Pro forma net book value of Operating Partnership.................. $151,063
========
Minority interest of Continuing Investors at 17.4%................. $ 26,285
========
</TABLE>
(K) Reflects the issuance of 12,500,000 shares of Common Stock, par value $.01
per share, at an assumed initial Offering price of $22.50 per share. The
following table sets forth the adjustments to additional paid-in capital:
<TABLE>
<S> <C>
. Net proceeds from the Offering of Common Stock after
underwriting discounts and commissions and estimated issuance
costs of $24,228................................................ $257,022
Less: par value of Common Stock of 12,500,000 shares at $.01 per
share........................................................... (125)
. Accrued interest which will not be assumed by Kilroy Realty
Corporation..................................................... 732
. Write-off of loan costs relating to repayment of mortgage debt.. (1,806)
. Portion of liability for option buy-out cost which will not be
assumed by Kilroy Realty Corporation............................ 2,260
. Net gain on repayment of mortgage debt and accrued interest..... 5,618
. Liability for construction costs which will not be assumed by
Kilroy Realty Corporation....................................... 460
--------
Net adjustment to additional paid-in capital...................... $264,161
========
</TABLE>
(L) Reflects the reclassification of the accumulated deficit.
F-4
<PAGE>
KILROY REALTY CORPORATION
PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
NINE MONTHS ENDED SEPTEMBER 30, 1996 AND YEAR ENDED DECEMBER 31, 1995
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
The unaudited pro forma condensed consolidated statements of operations are
presented as if (i) the transfer of the Properties (other than the Acquisition
Properties) and business and operations of the Kilroy Group pursuant to the
Formation Transactions and (ii) the Offering and the Mortgage Loans, and the
use of proceeds thereof to repay indebtedness and purchase the Acquisition
Properties, each had occurred on January 1, 1995. Such pro forma information
is based upon the historical results of operations of the Kilroy Group for the
nine months ended September 30, 1996, and the year ended December 31, 1995.
This pro forma condensed consolidated statement of operations should be read
in conjunction with the pro forma condensed consolidated balance sheet of the
Company and the historical combined financial statements and notes thereto of
the Kilroy Group and the historical combined summaries of certain revenues and
certain expenses of the Acquisition Properties and notes thereto included
elsewhere in this Prospectus. Reference is also made to "The Company" and "Use
of Proceeds."
The unaudited pro forma condensed consolidated statement of operations is
not necessarily indicative of what the actual results of operations of the
Company would have been assuming the Company had been formed and the
consummation of the Formation Transactions, the Offering and the Mortgage
Loans and the use of proceeds thereof, and the acquisition of the Acquisition
Properties at January 1, 1995, nor does it purport to represent the results of
operations of future periods of the Company.
F-5
<PAGE>
KILROY REALTY CORPORATION
PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30, 1996
----------------------------------------------------------------
KILROY COMPANY PRO
GROUP ACQUISITION PRO FORMA PRO FORMA FORMA
HISTORICAL PROPERTIES SUBSIDIARY ADJUSTMENTS CONSOLIDATED
---------- ----------- ---------- ----------- ------------
<S> <C> <C> <C> <C> <C>
REVENUES:
Rental income.... $25,156 $5,875 $ (396)(A) $ 30,635
Tenant
reimbursements.. 2,583 743 3,326
Parking.......... 1,317 1,317
Development and
management
fees............ 580 $(580)(B)
Lease termination
fees............
Sale of air
rights..........
Other income..... 65 299 364
------- ------ ----- -------- ----------
Total revenues.. 29,701 6,917 (580) (396) 35,642
------- ------ ----- -------- ----------
EXPENSES:
Property
expenses........ 5,042 1,315 54 (C) 6,411
Real estate
taxes........... 970 417 70 (D) 1,457
General and
administrative.. 1,607 200 1,293 (E) 3,100
Ground lease..... 579 253 832
Option buy-out
cost............ 3,150 3,150
Development and
management
expenses........ 584 (584)(B)
Interest
expense......... 16,234 (10,297)(F) 5,937
Depreciation and
amortization.... 6,838 830(G) 7,668
------- ------ ----- -------- ----------
Total expenses.. 35,004 3,015 (584) (8,880) 28,555
------- ------ ----- -------- ----------
Income (loss)
from operations
before equity in
income
of subsidiaries
and minority
interest........ (5,303) 3,902 4 8,484 7,087
Equity in income
of subsidiary... (58)(B) (58)
Minority
interest........ (1,223)(H) (1,223)
------- ------ ----- -------- ----------
Net income
(loss) $(5,303) $3,902 $ 4 $ 7,203 $ 5,806
======= ====== ===== ======== ==========
Average number of
shares
outstanding...... 12,600,000
==========
Net income per
common share(I).. $ 0.46
==========
<CAPTION>
YEAR ENDED DECEMBER 31, 1995
-----------------------------------------------------------------
KILROY COMPANY PRO
GROUP ACQUISITION PRO FORMA PRO FORMA FORMA
HISTORICAL PROPERTIES SUBSIDIARY ADJUSTMENTS CONSOLIDATED
---------- ------------ ------------- -------------- ------------
<S> <C> <C> <C> <C> <C>
REVENUES:
Rental income.... $ 32,314 $7,355 $ (528)(A) $ 39,141
Tenant
reimbursements.. 3,002 884 3,886
Parking.......... 1,582 1,582
Development and
management
fees............ 1,156 $(1,156)(B)
Lease termination
fees............ 100 100
Sale of air
rights.......... 4,456 4,456
Other income..... 298 407 705
-------- ------ ------- -------- ----------
Total revenues.. 42,908 8,646 (1,156) (528) 49,870
-------- ------ ------- -------- -----------
EXPENSES:
Property
expenses........ 6,834 1,882 (48)(C) 8,668
Real estate
taxes........... 1,416 495 91 (D) 2,002
General and
administrative.. 2,152 303 1,678 (E) 4,133
Ground lease..... 789 338 1,127
Option buy-out
cost............
Development and
management
expenses........ 737 (737)(B)
Interest
expense......... 24,159 (16,243)(F) 7,916
Depreciation and
amortization.... 9,474 1,106(G) 10,580
-------- ------ ------- -------- ----------
Total expenses.. 45,561 4,124 (737) (14,522) 34,426
-------- ------ ------- -------- ----------
Income (loss)
from operations
before equity in
income
of subsidiaries
and minority
interest........ (2,653) 4,522 (419) 13,994 15,444
Equity in income
of subsidiary... 136 (B) 136
Minority
interest........ (2,711)(H) (2,711)
-------- ------ ------- -------- ----------
Net income
(loss) $(2,653) $4,522 $ (419) $ 11,419 $ 12,869
======= ====== ======= ======== ==========
Average number of
shares
outstanding...... 12,600,000
==========
Net income per
common share(I).. $ 1.02
==========
</TABLE>
F-6
<PAGE>
KILROY REALTY CORPORATION
NOTES TO PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED) (DOLLARS IN THOUSANDS)
(A) Represents the elimination of rental income received from Kilroy
Industries.
(B) Represents the elimination of the Services Company's gross revenues and
expenses and the recording of the equity in income of the Services Company
net of income taxes.
<TABLE>
<CAPTION>
NINE MONTHS YEAR ENDED
ENDED SEPTEMBER 30, DECEMBER 31,
1996 1995
------------------- ------------
<S> <C> <C>
Development and management fees........... $ 580 $1,156
Development and management expenses....... (584) (737)
Elimination of nonrecurring Services
Company expenses......................... 80
----- ------
76 419
Elimination of management fees earned on
one of the Acquisition Properties........ (137) (181)
----- ------
(61) 238
Income tax expense........................ (95)
----- ------
Estimated service company net income
(loss)................................... (61) 143
----- ------
At 95% economic interest.................. $ (58) $ 136
===== ======
</TABLE>
(C) Represents the elimination of management fees charged to the Kilroy Group
by Kilroy Industries and the reclassification of expenses which previously
had not been allocated to individual properties.
(D) Represents incremental property taxes on the Acquisition Properties due to
change of ownership.
(E) Represents the estimated incremental increases in other general and
administrative expenses, including, without limitation, the incremental
general and administrative expenses to be incurred as a public company,
increases in other G&A expenses, less the effect of the reclassification
of property expenses which previously had not been allocated to individual
properties.
(F) Reflects reduction of interest expenses associated with the mortgage debts
assumed to be repaid using net proceeds from the Offering:
<TABLE>
<CAPTION>
NINE MONTHS YEAR ENDED
ENDED SEPTEMBER 30, DECEMBER 31,
1996 1995
------------------- ------------
<S> <C> <C>
. Interest expense on the Mortgage Loans
(fixed interest rate of 8.2% on $84,000
with 25-year amortization; variable
interest rate of LIBOR plus 3.0% on
$12,000)................................ $ 5,892 $ 7,856
. Amortization of the issuance costs on
the Mortgage Loans...................... 45 60
. Interest expense on debt assumed to be
retired................................. (16,234) (24,159)
-------- --------
Net interest expense reduction.......... $(10,297) $(16,243)
======== ========
</TABLE>
(G) Represents depreciation expense calculated based on the cost of the
Acquisition Properties' buildings depreciated on the straight-line method
over a 35 year life.
(H) Represents the income allocated to the 17.4% minority interest (Units) in
the Operating Partnership owned by Continuing Investors.
(I) Pro forma net income per share of Common Stock is based upon 12,500,000
shares of Common Stock assumed to be outstanding in connection with the
Offering and 100,000 restricted shares of Common Stock granted to an
officer of the Company.
F-7
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholder of
Kilroy Realty Corporation:
We have audited the accompanying balance sheet of Kilroy Realty Corporation
(the "Company") as of September 30, 1996. This financial statement is the
responsibility of the Company's management. Our responsibility is to express
an opinion on this financial statement based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the balance sheet is free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the balance sheet. An audit also
includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall balance sheet
presentation. We believe that our audit provides a reasonable basis for our
opinion.
In our opinion, such balance sheet presents fairly, in all material
respects, the financial position of the Company at September 30, 1996 in
conformity with generally accepted accounting principles.
Deloitte & Touche LLP
Los Angeles, California
October 25, 1996
F-8
<PAGE>
KILROY REALTY CORPORATION
BALANCE SHEET
SEPTEMBER 30, 1996
<TABLE>
<S> <C>
ASSETS
Cash............................................................... $1,000
======
STOCKHOLDER'S EQUITY
Common Stock, $.01 par value, 10,000,000 shares authorized;
50 shares issued and outstanding.................................. $1,000
======
</TABLE>
See notes to balance sheet.
F-9
<PAGE>
KILROY REALTY CORPORATION
NOTES TO BALANCE SHEET
SEPTEMBER 30, 1996
1. FORMATION OF THE COMPANY
Kilroy Realty Corporation (the "Company") was incorporated in Maryland on
September 13, 1996. The Company will file a Registration Statement on Form S-
11 with the Securities and Exchange Commission with respect to a proposed
public offering (the "Offering") of 12,500,000 shares of Common Stock. The
Company has been formed to succeed to the business of the Kilroy Group
consisting of a portfolio of 19 office and industrial properties (the "Kilroy
Properties") and the real estate ownership, acquisition, development, leasing
and management businesses historically conducted by Kilroy Industries and
related partnerships. The Company's assets will be owned and controlled by,
and all of its operations will be conducted through, Kilroy Realty, L.P. (the
"Operating Partnership") and other subsidiaries. The Company will control, as
the sole general partner, and will initially own an approximately 84.6%
interest in, the Operating Partnership. The Operating Partnership will conduct
certain development services through Kilroy Services, Inc. ("Services
Company"). John B. Kilroy, Sr. and John B. Kilroy, Jr. together will own 100%
of the voting common stock representing a 5% economic interest in the Services
Company. The Operating Partnership will own 100% of the nonvoting preferred
stock representing 95% of the economic interest in the Services Company. The
nonvoting preferred stock will not have any voting rights except as provided
by law, will not be convertible or exchangeable into other securities of the
Company, will have no redemption rights or any appraisal rights except as
provided by law and the holders thereof will have no preemptive rights to
subscribe for any securities of the Company. Holders of the nonvoting
preferred stock will participate in all distributions from the Services
Company and receive 95% of all distributions, if and when such distributions
are authorized and declared by the Services Company's board of directors out
of funds legally available therefor. Upon dissolution, holders of nonvoting
preferred stock will be entitled to receive preferential liquidating
distributions in an amount equal to 95% of the value of the Services Company's
assets. The Operating Partnership's investment in the Services Company will be
accounted for under the equity method. As of October 25, 1996, the Services
Company had not yet been formed.
Prior to and simultaneous with the consummation of the Offering, the
Company, the Operating Partnership and the Continuing Investors intend to
engage in certain formation transactions (the "Formation Transactions")
summarized as follows:
(i) The Continuing Investors will contribute all of their interests in
the Kilroy Properties to the Operating Partnership in exchange for units
representing limited partnership interests in the Operating Partnership
("Units"). The transfer of the Kilroy Properties, which are under the
common control of John B. Kilroy, Sr. and John B. Kilroy, Jr., to the
Operating Partnership will be accounted for at the historical cost of the
Continuing Investors' interests therein similar to a pooling of interests;
(ii) The Company will sell shares of Common Stock in the Offering and
will contribute the net proceeds from the Offering (estimated to be
approximately $257.0 million after deduction of estimated offering
expenses) to the Operating Partnership in exchange for Units in the
Operating Partnership. The Operating Partnership will use substantially all
of such net proceeds, together with the net proceeds of borrowings under
the Mortgage Loans, discussed below, for the repayment of certain existing
mortgage and loan indebtedness on the Kilroy Properties, the acquisition of
certain properties (the "Acquisition Properties") and additions to working
capital cash reserves;
(iii) The Operating Partnership will enter into an $84.0 million secured
mortgage financing and a $12.0 million secured mortgage financing (the
"Mortgage Loans"), which will be nonrecourse obligations of the Operating
Partnership; and
(iv) The Company will amend its charter and authorize 150,000,000 shares
of Common Stock, $.01 par value per share, and 30,000,000 shares of
Preferred Stock, par value $.01 per share.
F-10
<PAGE>
KILROY REALTY CORPORATION
NOTES TO BALANCE SHEET--(CONTINUED)
SEPTEMBER 30, 1996
2. INCOME TAXES
It is the intent of the Company to qualify as a real estate investment trust
("REIT") under the Internal Revenue Code of 1986, as amended. As a REIT, the
Company generally will not be subject to federal income tax to the extent that
it distributes at least 95% of its REIT taxable income to its stockholders.
REITs are subject to a number of organizational and operational requirements.
If the Company fails to qualify as a REIT in any taxable year, the Company
will be subject to federal income tax (including any applicable alternative
minimum tax) on its taxable income at regular corporate tax rates.
3. OFFERING COSTS
In connection with the Offering, affiliates have or will incur legal,
accounting and related costs which will be reimbursed by the Company upon the
consummation of the Offering. These costs will be deducted from the gross
proceeds of the Offering.
4. STOCK INCENTIVE PLAN AND RESTRICTED STOCK GRANT
Prior to the consummation of the Offering, the Company intends to adopt and
have its shareholders approve a stock incentive plan (the "Stock Incentive
Plan"), for the purpose of attracting and retaining executive officers,
directors and employees. A maximum of 1,500,000 shares of Common Stock
(subject to adjustment) will be reserved by the Company for issuance under the
Stock Incentive Plan, including 100,000 restricted shares of Common Stock
which will be issued to an officer of the Company upon consummation of the
Offering and which will vest in equal annual installments over a three-year
period.
******
F-11
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Partners of Kilroy Group:
We have audited the accompanying combined balance sheets of Kilroy Group
(described in Note 1) as of September 30, 1996 and December 31, 1995 and 1994,
and the related combined statements of operations, accumulated deficit, and
cash flows for the nine months ended September 30, 1996 and each of the three
years in the period ended December 31, 1995 and the combined statements of
operations and cash flows for the nine months ended September 30, 1995. These
financial statements are the responsibility of the management of Kilroy Group.
Our responsibility is to express an opinion on these financial statements
based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform our audits to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, such financial statements present fairly, in all material
respects, the financial position of Kilroy Group as of September 30, 1996 and
December 31, 1995 and 1994, and the results of its operations and its cash
flows for the nine months ended September 30, 1996 and 1995 and for each of
the three years in the period ended December 31, 1995 in conformity with
generally accepted accounting principles.
Deloitte & Touche LLP
Los Angeles, California
December 20, 1996
F-12
<PAGE>
KILROY GROUP
COMBINED BALANCE SHEETS
SEPTEMBER 30, 1996 AND DECEMBER 31, 1995 AND 1994
(IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, --------------------
1996 1995 1994
------------- --------- ---------
<S> <C> <C> <C>
ASSETS
RENTAL PROPERTIES (Notes 1, 2, 4, 5, 6 and
9):
Land..................................... $ 12,490 $ 12,490 $ 12,490
Buildings and improvements............... 214,637 212,493 211,331
--------- --------- ---------
Total rental properties................ 227,127 224,983 223,821
Accumulated depreciation and
amortization............................ (107,722) (101,774) (93,475)
--------- --------- ---------
Rental properties, net................. 119,405 123,209 130,346
TENANT RECEIVABLES, NET (Note 2)........... 3,363 3,973 3,961
DEFERRED CHARGES AND OTHER ASSETS, NET
(Notes 2, 3 and 7)........................ 8,294 5,675 8,944
--------- --------- ---------
TOTAL...................................... $ 131,062 $ 132,857 $ 143,251
========= ========= =========
LIABILITIES AND ACCUMULATED DEFICIT
LIABILITIES:
Debt (Notes 4, 8 and 9).................. $ 224,046 $ 233,857 $ 250,059
Accounts payable and accrued expenses.... 2,600 2,590 3,482
Accrued construction costs (Note 2)...... 460 874 --
Accrued property taxes (Note 2).......... 1,007 1,399 1,563
Property tax refund payable to tenants
(Note 3)................................ -- -- 1,500
Accrued interest payable (Note 4)........ 3,538 7,251 8,057
Accrued cost of option buy-out and tenant
improvements (Note 5)................... 3,650 -- --
Rents received in advance and tenant
security deposits (Note 2).............. 8,984 8,712 8,924
--------- --------- ---------
Total liabilities...................... 244,285 254,683 273,585
COMMITMENTS AND CONTINGENCIES (Note 6).....
ACCUMULATED DEFICIT (Note 1)............... (113,223) (121,826) (130,334)
--------- --------- ---------
TOTAL...................................... $ 131,062 $ 132,857 $ 143,251
========= ========= =========
</TABLE>
See notes to combined financial statements.
F-13
<PAGE>
KILROY GROUP
COMBINED STATEMENTS OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1995 AND
YEARS ENDED DECEMBER 31, 1995, 1994 AND 1993
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED SEPTEMBER
30, DECEMBER 31,
----------------- -------------------------
1996 1995 1995 1994 1993
------- -------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
REVENUES (Notes 2 and 5):
Rental income (Note 7).......... $25,156 $ 24,056 $32,314 $31,220 $34,239
Tenant reimbursements (Note 3).. 2,583 2,377 3,002 1,643 4,916
Parking......................... 1,317 1,193 1,582 1,357 1,360
Development and management
fees........................... 580 926 1,156 919 751
Sale of air rights (Note 2)..... -- 4,456 4,456 -- --
Lease termination fees.......... -- -- 100 300 5,190
Other income (Note 3)........... 65 211 298 784 188
------- -------- ------- ------- -------
Total revenues................ 29,701 33,219 42,908 36,223 46,644
------- -------- ------- ------- -------
EXPENSES:
Property expenses (Notes 2 and
7)............................. 5,042 5,045 6,834 6,000 6,391
Real estate taxes (Note 3)...... 970 1,088 1,416 (448) 2,984
General and administrative...... 1,607 1,554 2,152 2,467 1,113
Ground leases (Note 6).......... 579 542 789 913 941
Development and management
expenses....................... 584 564 737 468 581
Option buy-out cost (Note 5).... 3,150 -- -- -- --
Interest expense................ 16,234 18,660 24,159 25,376 25,805
Depreciation and amortization... 6,838 7,171 9,474 9,962 10,905
------- -------- ------- ------- -------
Total expenses................ 35,004 34,624 45,561 44,738 48,720
------- -------- ------- ------- -------
LOSS BEFORE EXTRAORDINARY GAINS.. (5,303) (1,405) (2,653) (8,515) (2,076)
EXTRAORDINARY GAINS
(Note 4)........................ 20,095 15,267 15,267 1,847 --
------- -------- ------- ------- -------
NET INCOME (LOSS)................ $14,792 $ 13,862 $12,614 $(6,668) $(2,076)
======= ======== ======= ======= =======
</TABLE>
See notes to combined financial statements.
F-14
<PAGE>
KILROY GROUP
COMBINED STATEMENTS OF ACCUMULATED DEFICIT
YEARS ENDED DECEMBER 31, 1995, 1994 AND 1993 AND
NINE MONTHS ENDED SEPTEMBER 30, 1996
(IN THOUSANDS)
<TABLE>
<S> <C>
BALANCE, JANUARY 1, 1993............................................ $(102,148)
Deemed and actual distributions to partners, net of
contributions.................................................... (10,736)
Net loss.......................................................... (2,076)
---------
BALANCE, DECEMBER 31, 1993.......................................... (114,960)
Deemed and actual distributions to partners, net of
contributions.................................................... (8,706)
Net loss.......................................................... (6,668)
---------
BALANCE, DECEMBER 31, 1994.......................................... (130,334)
Deemed and actual distributions to partners, net of
contributions.................................................... (4,106)
Net income........................................................ 12,614
---------
BALANCE, DECEMBER 31, 1995.......................................... (121,826)
Deemed and actual distributions to partners, net of
contributions.................................................... (6,189)
Net income........................................................ 14,792
---------
BALANCE, SEPTEMBER 30, 1996......................................... $(113,223)
=========
</TABLE>
See notes to combined financial statements.
F-15
<PAGE>
KILROY GROUP
COMBINED STATEMENTS OF CASH FLOWS
NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1995 AND
YEARS ENDED DECEMBER 31, 1995, 1994 AND 1993
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, DECEMBER 31,
-------------------- ---------------------------
1996 1995 1995 1994 1993
--------- --------- --------- ------- -------
<S> <C> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING
ACTIVITIES:
Net income (loss).......... $ 14,792 $ 13,862 $ 12,614 $(6,668) $(2,076)
Adjustment to reconcile net
income (loss) to net cash
provided by (used in)
operating activities:
Depreciation and
amortization............. 6,838 7,171 9,474 9,962 10,905
Net (increase) decrease:
Provision for bad debts.. 920 839 1,000 909 350
Extraordinary gains...... (20,095) (15,267) (15,267) (1,847) --
Changes in assets and
liabilities:
Tenant receivables....... (310) (571) (1,012) (760) (695)
Deferred charges and
other assets, net ...... (1,688) 2,331 2,095 (3,212) 34
Accounts payable and
accrued expenses........ 10 1,519 (892) 2,274 (698)
Accrued construction
costs................... (414) -- 874 -- --
Accrued property taxes... (392) (671) (164) (2,411) 1,676
Property tax refund
payable to tenants...... -- (1,500) (1,500) 1,500 --
Accrued interest
payable................. 1,945 2,274 3,061 1,846 1,368
Accrued cost of option
buy-out and tenant
improvements............ 3,650 -- -- -- --
Rents received in advance
and tenant security
deposits................ 272 (717) (212) 5,014 593
--------- --------- --------- ------- -------
Net cash provided by
operating activities... 5,528 9,270 10,071 6,607 11,457
--------- --------- --------- ------- -------
CASH FLOWS FROM INVESTING
ACTIVITIES:
Expenditures for rental
properties................ (2,140) (446) (1,162) (1,765) (633)
Reimbursement of tenant
improvements.............. -- -- -- -- 2,661
--------- --------- --------- ------- -------
Net cash (used in)
provided by investing
activities............. (2,140) (446) (1,162) (1,765) 2,028
--------- --------- --------- ------- -------
CASH FLOWS FROM FINANCING
ACTIVITIES:
Net proceeds received from
debt...................... 21,057 489 625 11,127 7,191
Principal payments on
debt...................... (18,256) (2,207) (5,428) (7,263) (9,940)
Deemed and actual
distributions to
partners.................. (6,189) (7,106) (4,106) (8,706) (10,736)
--------- --------- --------- ------- -------
Net cash (used in)
provided by financing
activities............. $ (3,388) $ (8,824) $ (8,909) (4,842) (13,485)
========= ========= ========= ======= =======
SUPPLEMENTAL CASH FLOW
INFORMATION:
Cash paid during the period
for interest.............. $ (14,289) $ (16,386) $ (21,098) (23,530) (24,437)
========= ========= ========= ======= =======
</TABLE>
See notes to combined financial statements.
F-16
<PAGE>
KILROY GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS
NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1995 AND
YEARS ENDED DECEMBER 31, 1995, 1994 AND 1993
1. ORGANIZATION AND BASIS OF PRESENTATION
Organization--Kilroy Group (not a legal entity) consists of the combination
of Kilroy Industries ("KI") and general and limited partnerships, a limited
liability company and trusts, the properties of which are under common control
of KI and/or its stockholders, John B. Kilroy, Sr. and John B. Kilroy, Jr. The
entities referred to collectively as Kilroy Group ("KG") are engaged in the
acquisition, development, ownership and operation of 19 office and industrial
properties (the "Kilroy Properties") located in California, Washington and
Arizona. KI has historically provided acquisition, financing, construction and
leasing services with respect to the Kilroy Properties. KI has also provided
development services to third-party owners of properties for a fee.
The names of the corporation, partnerships and trusts which directly own the
Kilroy Properties are as follows:
<TABLE>
<CAPTION>
PERCENTAGE OWNERSHIP
OF PROPERTY BY KI,
JOHN B. KILROY, SR.,
AND/OR
ENTITY NAME JOHN B. KILROY, JR. PROPERTY LOCATION
----------- -------------------- -------- --------
<S> <C> <C> <C>
OFFICE:
Kilroy Airport
Associates 100% Kilroy Airport Center at El Segundo:
2240 E. Imperial Highway El Segundo, California
2250 E. Imperial Highway El Segundo, California
2260 E. Imperial Highway El Segundo, California
Kilroy Long Beach
Partner II 99%(1) Kilroy Airport Center Long Beach:
3750 Kilroy Airport Way Long Beach, California
3760 Kilroy Airport Way Long Beach, California
3780 Kilroy Airport Way Long Beach, California
Kilroy Freehold
Industrial
Development
Organization
("K-FIDO") 83%(2) 185/181 S. Douglas Street El Segundo, California
SeaTac Properties Ltd. 99%(1) SeaTac Office Center:
17900 Pacific Highway Seattle, Washington
17930 Pacific Highway Seattle, Washington
18000 Pacific Highway Seattle, Washington
INDUSTRIAL:
Kilroy Industries 100% 2031 E. Mariposa Avenue El Segundo, California
Kilroy Building 73
Partnership 100% 3332 E. La Palma Avenue Anaheim, California
K-FIDO 83%(2) 2260 E. El Segundo Boulevard El Segundo, California
K-FIDO 83%(2) 2265 E. El Segundo Boulevard El Segundo, California
K-FIDO 83%(2) 2270 E. El Segundo Boulevard El Segundo, California
A-102 Trust 20%(2) 5115 N. 27th Avenue Phoenix, Arizona
KI 1979 Trust 85%(2) 1000 E. Ball Road Anaheim, California
KI 1979 Trust 85%(2) 1230 S. Lewis Street Anaheim, California
Kilroy Garden Grove
Associates 100% 12681/12691 Pala Drive Garden Grove, California
</TABLE>
- --------
(1) The balance of the ownership interests are held by Marshall L. McDaniel
(representing an aggregate interest of approximately 1%).
(2) The balance of the ownership interests are held by the four adult
daughters of John B. Kilroy, Sr.
F-17
<PAGE>
KILROY GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
The development services of KG relating to non-owned properties have been
conducted by KI and Kilroy Technologies Company, LLC, both wholly-owned by
John B. Kilroy, Sr. and John B. Kilroy, Jr.
Certain of the named entities are owned by other entities. The Kilroy
Properties are ultimately owned beneficially in the proportions identified
above.
Basis of Presentation--The accompanying combined financial statements of KG
have been presented on a combined basis because of the common ownership and
management and because the entities are expected to be the subject of a
business combination with Kilroy Realty Corporation (the "Company"), a
recently formed Maryland corporation which is expected to qualify as a real
estate investment trust under the Internal Revenue Code of 1986, as amended.
Concurrently with the business combination, the Company intends to raise
capital through an initial public offering of Common Stock, mortgage loans and
a credit facility to be secured by mortgage liens on the properties. The
business combination has been structured to allow the beneficial owners of the
Kilroy Properties (including members of KG) to receive limited partnership
interests in Kilroy Realty, L.P. (the "Operating Partnership") aggregating a
17.4% interest. The Company will be the managing general partner of the
Operating Partnership, which will hold the operating assets and will manage
the Kilroy Properties. Certain other properties and operations affiliated with
KI have been excluded as they are not compatible with the investment purposes
of the Company. Deemed and actual cash distributions to partners, net of
contributions, included in the combined statements of accumulated deficit
generally represent distributions of the cash flows generated by KG, and
advances to partners and KI, as well as related-party transactions (see
Note 7).
2. SIGNIFICANT ACCOUNTING POLICIES
Rental Properties--Rental properties are stated at historical cost less
accumulated depreciation, which, in the opinion of KG's management, is not in
excess of net realizable value. Net realizable value does not purport to
represent fair market value. Costs incurred for the acquisition, renovation
and betterment of the properties are capitalized. Maintenance and repairs are
charged to expense as incurred.
During 1995, the Company adopted Statement of Financial Accounting Standards
("SFAS") No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed of." Under this standard, if impairment
conditions exist, the Company makes an assessment of the recoverability of the
carrying amounts of individual properties by estimating the future
undiscounted cash flows, excluding interest charges, on a property by property
basis. If the carrying amount exceeds the aggregate future cash flows, the
Company would recognize an impairment loss to the extent the carrying amount
exceeds the fair value of the property. Any long-lived assets to be disposed
of are to be valued at estimated fair value less costs to sell. Based on such
periodic assessments, no impairments have been determined and, therefore, no
real estate carrying amounts have been adjusted.
Depreciation and Amortization--The cost of buildings and improvements are
depreciated on the straight-line method over estimated useful lives, as
follows:
Buildings--25 to 40 years
Tenant improvements--shorter of lease term or useful lives ranging from 5
to 20 years
Deferred Charges--Deferred charges include deferred leasing costs and loan
fees. Leasing costs include leasing commissions that are amortized on the
straight-line basis over the initial lives of the leases, which range from 5
to 10 years. Deferred loan fees are amortized on a straight-line basis over
the terms of the respective loans, which approximates the effective interest
method.
Accrued Property Taxes--As of September 30, 1996 and December 31, 1995 and
1994, $202,000, $696,000 and $783,000, respectively, of accrued property taxes
were past due.
F-18
<PAGE>
KILROY GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
Revenue Recognition and Tenant Receivables--Leases with tenants are
accounted for as operating leases. Minimum annual rentals are recognized on a
straight-line basis over the lease term. Unbilled deferred rent represents the
amount that expected straight-line rental income exceeds rents currently due
under the lease agreement. Total tenant receivables consists of the following
amounts:
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, ---------------
1996 1995 1994
------------- ------- ------
(IN THOUSANDS)
<S> <C> <C> <C>
Tenant rent and reimbursements receivable... $ 3,889 $ 3,171 $1,981
Allowance for uncollectible rent............ (2,757) (1,837) (837)
Unbilled deferred rent...................... 2,231 2,639 2,817
------- ------- ------
Tenants receivables, net.................... $ 3,363 $ 3,973 $3,961
======= ======= ======
</TABLE>
Included in tenant rent and reimbursements receivable are additional rentals
based on common area maintenance expenses and certain other expenses that are
accrued in the period in which the related expenses are incurred.
Rents Received in Advance and Tenant Security Deposits--The balances as of
September 30, 1996 and December 31, 1995 and 1994 include a $4,000,000 payment
received from a tenant in connection with the tenant's obligation to remove
tenant improvements upon termination of the lease. Such payment is
nonrefundable and will be recognized as income, net of the costs of removal of
improvements, upon termination of the lease. The related lease expires in
1999, subject to a five-year option to renew.
Use of Estimates--The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Parking--The Kilroy Airport Center--LAX and the SeaTac Office Center include
parking facilities. KG records as revenue the gross parking receipts. KG
contracts with parking management companies to operate the parking facilities,
and such contract costs are included in property expenses.
Development Services--Development and management fees represent fees earned
by KG for supervision services provided for building development and
management of nonowned properties. Fees are typically a percentage of total
development costs plus reimbursement for certain expenses. Unreimbursed
expenses are recorded as development expenses and include items such as wages,
equipment rental, supplies, etc.
Sale of Air Rights--In 1995, based on an agreement between KG and the
California Transportation Commission, KG received $4,456,000, net of related
expenses, for granting temporary construction and permanent air right
easements over a portion of its property for the construction of a freeway on-
ramp. In connection with this transaction, KG accrued $874,000 as of December
31, 1995 for the costs of restoration of the property after construction of
the on-ramp.
F-19
<PAGE>
KILROY GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
3. DEFERRED CHARGES AND OTHER ASSETS
Deferred charges and other assets are summarized as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, -----------------
1996 1995 1994
------------- -------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Deferred assets:
Deferred financing costs................ $ 2,631 $ 3,436 $ 3,333
Deferred leasing costs (Note 7)......... 11,069 11,327 10,650
------- -------- -------
Total deferred assets................. 13,700 14,763 13,983
Accumulated amortization.................. (6,791) (10,142) (8,934)
------- -------- -------
Deferred assets, net...................... 6,909 4,621 5,049
Prepaid expenses.......................... 1,385 1,054 1,075
Property tax refunds receivable........... --- --- 2,820
------- -------- -------
Total deferred charges and other
assets............................... $ 8,294 $ 5,675 $ 8,944
======= ======== =======
</TABLE>
Property tax refunds, which were collected in 1995, relate to appeals filed
by KG in the fourth quarter of 1994 for refunds of property taxes paid in 1990
through 1994 and include related interest income of $441,000. Such amounts
were recorded as a reduction of property taxes and as other income during the
year ended December 31, 1994. Of these property tax recoveries, approximately
$1,500,000 was refunded to tenants of the related properties and has been
recorded as a reduction to tenant reimbursements income during the year ended
December 31, 1994.
4. DEBT
Debt consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, -----------------
1996 1995 1994
------------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Bank notes payable, due in December 1994,
bearing interest at prime (8.5% at
December 31, 1995)(a)..................... --- $ 16,536 $ 30,536
Bank notes payable, due in January 1999,
bearing interest at LIBOR + 1.15% (6.4% at
September 30, 1996 and 6.9% at December
31, 1995)................................. $ 56,168 54,811 54,186
Notes payable to finance company and
related pension funds, maturing in 1997
and 1998, bearing interest at rates from
8.5% to 12.7%(b)(c)....................... 28,537 33,447 33,705
Note payable to insurance company, maturing
April 2001, bearing interest at 9.75%(d).. 20,162 20,162 21,173
Notes payable to insurance companies,
maturing March 2006, bearing interest at
9.5%(c)................................... 1,989 10,722 11,170
Note payable to insurance company due April
2002, bearing interest at 9.25%(e)........ 94,799 97,283 98,347
Notes payable to underwriter due in June
1997, bearing
interest at LIBOR + 3% (8.5% at September
30, 1996)(c).............................. 21,525 -- --
Bank notes payable, due in July 2008,
bearing interest at 10%................... 866 896 942
-------- -------- --------
$224,046 $233,857 $250,059
======== ======== ========
</TABLE>
- --------
(a) In September 1995, a note payable to a bank of $14,000,000 due in December
1994 and accrued interest payable of $3,867,000 was retired by a cash
payment of $2,600,000. KG recorded an extraordinary gain of
F-20
<PAGE>
KILROY GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
$15,267,000 as a result of this transaction. The remaining notes payable of
$16,536,000 were in default as of December 31, 1995 and 1994. Past due
interest on the remaining notes, approximately $5,003,000 at December 31,
1995, is included in accrued interest. See discussion below under (c)
regarding settlement of this loan and accrued interest.
(b) During the nine months ended September 30, 1996, three of the notes payable
totaling $16,608,000 were amended to extend the maturity dates from 1996 to
1997 and 1998. In May, 1996, an additional note with a principal balance of
$2,500,000 which was due in February 1996 was amended to extend the
maturity date from February 1996 to 1997. During June 1996, notes payable
of $5,765,000 were amended to extend the maturity date from June 1996 to
April 1998.
(c) On June 20, 1996, KG obtained a mortgage loan of $21,525,000 from one of
the underwriters of the proposed public offering of common stock referred
to in Note 1. Such loan is due on June 20, 1997 and bears interest at 3%
above LIBOR. Fees of $2,279,000 were incurred in connection with obtaining
this loan. An additional fee of $337,500 is payable if the loan is not
repaid within 150 days after June 20, 1996. The proceeds were used to pay:
$2,100,000 as settlement of bank notes with an aggregate principal balance
of $16,536,000 and $5,659,000 of unpaid interest, a note payable to an
insurance company with a principal balance of $8,549,000 and a note payable
to a finance company with a principal balance of $4,600,000. The
forgiveness of $20,095,000 has been recorded as an extraordinary gain.
(d) KG is not currently making the required monthly principal installments of
$239,000 on this note and accrued interest of $1,894,000 is unpaid as of
September 30, 1996. The SeaTac Office Center is pledged as collateral for
the note payable. On October 25, 1996, KG and the insurance company entered
into a forbearance agreement which provides KG with the exclusive right to
purchase the note payable for $16,100,000 on or before January 31, 1997. In
the event KG does not acquire the loan, the fee owner of the property has
the right from February 1, 1997 through February 28, 1997 to pay off the
loan on the same terms and conditions. In the event KG is unable to acquire
the loan on or prior to January 31, 1997, the fee owner has assigned its
rights to KG for the period February 1, 1997 to February 10, 1997. If KG
fails to perform any of its obligations under the agreement, an event of
default shall occur and the insurance company shall have the right to
pursue any and all remedies available under the agreement and the note
payable, including foreclosure. It is contemplated that a portion of the
proceeds from the initial public offering referred to in Note 1, will be
used to purchase this note. KG believes it will be able to meet this
commitment irrespective of the consummation of the Offering referred to in
Note 1 based upon discussions with other sources of financing.
(e) Under an agreement with the insurance company, monthly payments of
principal and interest are calculated based on gross receipts from leases
of the property that secures the loan. All receipts from the property are
deposited into a lock box account from which all operating costs, which
must be approved by the lender, are to be paid. Monthly installments of
principal and interest of $881,475 and property taxes are payable from the
lockbox account and any deficiency must be funded by KG. There are certain
provisions in the agreement that may require additional payments of
principal.
In 1994, two notes payable to insurance companies, with an aggregate unpaid
balance of $6,782,000 were paid after forgiveness of $1,847,000 of principal by
the lenders, which has been recorded as an extraordinary gain.
The notes payable are secured by deeds of trust on all Kilroy Properties and
the assignment of certain rents and leases associated with the related
properties. The notes are generally due in monthly installments of principal
and interest or interest only. As of September 30, 1996, approximately $37.2
million of notes payable are guaranteed by certain members of KG. Several notes
contain restrictive covenants with which KG has complied as well as penalties
for early repayment of principal equal to a percentage of the unpaid balance.
F-21
<PAGE>
KILROY GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
Aggregate future principal payments on notes payable are as follows:
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
YEAR ENDING 1996 1995
----------- ------------- ------------
(IN THOUSANDS)
<S> <C> <C>
1996........................................... $ 41 $ 4,301
1997........................................... 64,174 69,935
1998........................................... 10,317 10,626
1999........................................... 58,658 57,301
2000........................................... 2,722 2,722
Thereafter..................................... 88,134 88,972
-------- --------
Total........................................ $224,046 $233,857
======== ========
</TABLE>
5. FUTURE MINIMUM RENT
KG has operating leases with tenants that expire at various dates through
2006 and are either subject to scheduled fixed increases or adjustments based
on the Consumer Price Index. Generally, the leases grant tenants renewal
options. Leases also provide for additional rents based on certain operating
expenses as well as sales volume of certain retail space within the office
buildings. Future minimum rent to be received under operating leases,
excluding tenant reimbursements of certain costs, are as follows as of:
<TABLE>
<CAPTION>
DECEMBER 31,
YEAR ENDING 1995
----------- ------------
(IN THOUSANDS)
<S> <C>
1996....................................................... $ 33,359
1997....................................................... 33,013
1998....................................................... 30,750
1999....................................................... 26,999
2000....................................................... 23,297
Thereafter................................................. 67,612
--------
Total.................................................... $215,030
========
</TABLE>
Rental revenue from one tenant, Hughes Electronic Corporation's Space &
Communications Company ("Hughes"), was $8,161,142, $10,817,000, $11,395,000
and $12,258,000 for the nine months ended September 30, 1996 and the years
ended December 31, 1995, 1994 and 1993, respectively. Future minimum rents
from this tenant are $66,949,000 at December 31, 1995.
On September 18, 1996, KG and Hughes amended the terms of certain of their
lease agreements. Such amendments included the extension of one lease through
October 31, 2001 and a $500,000 allowance for tenant improvements. In
addition, KG agreed to pay Hughes $3,150,000 in consideration for the
cancellation of an option to purchase a 50% equity interest in Kilroy Airport
Center at El Segundo which has been reflected in the statement of operations
for the nine months ended September 30, 1996. In November 1996, $2,260,000 of
the total liability of $3,650,000 was paid by KI and its stockholders. The
remaining balance is payable in monthly installments of $100,000 commencing in
January 1997.
The majority of Kilroy Properties are located in Southern California. The
ability of the tenants to honor the terms of their respective leases is
dependent upon the economic, regulatory and social factors affecting the
communities and industries in which the tenants operate.
F-22
<PAGE>
KILROY GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
6. COMMITMENTS AND CONTINGENCIES
Operating Leases--KG has noncancelable ground lease obligations on Kilroy
Airport Center--Long Beach with an initial lease period expiring on July 31,
2035, classified as an operating lease. Further, KG has noncancelable ground
lease obligations on the SeaTac Office Center expiring on December 31, 2032
with an option to extend the leases for an additional 30 years. Rentals are
subject to adjustment every five years based on the variation of the Consumer
Price Index. The minimum commitment under these leases at December 31, 1995 is
as follows:
<TABLE>
<CAPTION>
YEAR ENDING
----------- (IN THOUSANDS)
<S> <C>
1996....................................................... $ 743
1997....................................................... 743
1998....................................................... 761
1999....................................................... 923
2000....................................................... 1,056
Thereafter................................................. 35,737
-------
Total.................................................... $39,963
=======
</TABLE>
Litigation--KG is subject to various legal proceedings and claims that arise
in the ordinary course of business. These matters are generally covered by
insurance. While the resolution of these matters cannot be predicted with
certainty, management believes that the final outcome of such matters will not
have a material adverse effect on the financial position or results of
operations of KG.
7. RELATED-PARTY TRANSACTIONS
KI provides management, legal, accounting and general administrative
services pursuant to agreements that provide for management fees based upon a
percentage of gross revenues from the Kilroy Properties and reimbursement of
other costs incurred by KI in connection with providing the aforementioned
services. Kilroy Company ("KC"), an affiliated entity, provides marketing and
leasing services. Charges by KC include leasing commissions paid to employees
and outside leasing brokers as well as fees to cover its general
administrative costs. Management fees are expensed as incurred and are
included in property expenses. Leasing fees are capitalized and amortized over
the life of the related leases. In the opinion of KG management, the fees paid
to KI and KC for management and leasing services are comparable to the rates
which KG would have paid an independent company to provide similar services.
In addition, KI is a tenant at the Kilroy Airport Center--LAX, Kilroy Airport
Center--Long Beach and SeaTac Office Center, under month-to-month leases.
Charges for services provided by KI and KC and rental income from KI are
summarized as follows:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER YEAR ENDED DECEMBER
30, 31,
----------- --------------------
1996 1995 1995 1994 1993
------ ---- ------ ------ ------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Management fees................................ $ 916 $754 $1,343 $1,026 $1,359
Leasing fees................................... $1,372 $743 $ 804 $1,456 $ 431
Rental income.................................. $ 396 $396 $ 528 $ 528 $ 797
</TABLE>
Management fees in 1995 include a fourth quarter charge of $321,000 relating
to management time incurred for the renegotiation of loans.
F-23
<PAGE>
KILROY GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
8. FAIR VALUE DISCLOSURES OF FINANCIAL INSTRUMENTS
The following disclosure of estimated fair value was determined by KG using
available market information and appropriate valuation methodologies. However,
considerable judgment is necessary to interpret market data and develop the
related estimates of fair value. Accordingly, the estimates presented herein
are not necessarily indicative of the amounts that could be realized upon
disposition of the financial instruments. The use of different market
assumptions and/or estimation methodologies may have a material effect on the
estimated fair value amounts.
Receivables, accounts payable and other liabilities are carried at amounts
that reasonably approximate their fair value.
The fixed rate mortgage notes payable totaling $146,352,000, $162,510,000
and $165,325,000 as of September 30, 1996, December 31, 1995 and 1994 have
fair values of $149,600,000, $165,300,000 and $169,900,000, respectively
(excluding prepayment penalties), as estimated based upon interest rates
available for the issuance of debt with similar terms and remaining
maturities. These notes were subject to prepayment penalties of $542,000,
$722,000 and $757,000 at September 30, 1996, December 31, 1995 and 1994,
respectively, that would be required to retire these notes prior to maturity.
The carrying values of floating rate mortgages totaling $77,694,000,
$71,347,000 and $84,734,000 at September 30, 1996, December 31, 1995 and 1994,
respectively, reasonably approximate their fair values.
The fair value estimates presented herein are based on information available
to KG management as of September 30, 1996, December 31, 1995 and 1994.
Although KG management is not aware of any factors that would significantly
affect the estimated fair value amounts, such amounts have not been
comprehensively revalued for purposes of these financial statements since that
date, and current estimates of fair value may differ significantly from the
amounts presented herein.
F-24
<PAGE>
KILROY GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
9. SCHEDULE OF RENTAL PROPERTY
<TABLE>
<CAPTION>
DECEMBER 31, 1995
------------------------------------------------------------------------------------------------------
GROSS AMOUNTS
AT WHICH CARRIED AT CLOSE OF
INITIAL COST COSTS PERIOD
-------------------- CAPITALIZED -----------------------------
BUILDINGS SUBSEQUENT TO DATE OF
AND ACQUISITION/ BUILDING AND ACCUMULATED ACQUIS. (A)
PROPERTY ENCUMBRANCES LAND IMPROVEMENTS IMPROVEMENT LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTR. (C)
-------- ------------ ------- ------------ ------------- ------- ------------ -------- ------------ -----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Kilroy Airport
Center
El Segundo, CA..... $97,283 $ 6,141 $69,195 $18,884 $ 6,141 $88,079 $94,220 $42,495 1983(C)
Kilroy Airport
Center
Long Beach, CA..... 54,811 -- 47,387 11,041 -- 58,428 58,428 15,322 1989(C)
185/181 S. Douglas
Street
El Segundo,
California(1)...... 15,639 525 4,687 1,845 628 6,429 7,057 3,509 1978(C)
SeaTac Office
Center............. 26,999 -- 25,993 8,109 -- 33,239 33,239 22,523 1977(C)
2270 E. El Segundo
Boulevard
El Segundo,
California(1)...... -- 361 100 76 419 118 537 73 1977(C)
2260 E. El Segundo
Boulevard,
El Segundo,
California(1)...... -- 1,423 4,194 1,236 1,703 5,150 6,853 2,914 1979(C)
2031 E. Mariposa
Avenue,
El Segundo,
California......... 12,000 132 867 2,668 132 3,535 3,667 2,328 1954(C)
3332 E. La Palma
Avenue,
Anaheim,
California......... 7,683 67 1,521 2,851 67 4,372 4,439 3,028 1966(C)
2265 E. El Segundo
Boulevard,
El Segundo,
California......... 4,600 1,352 2,028 644 1,570 2,454 4,024 1,550 1978(C)
5115 N. 27th
Avenue,
Phoenix, Arizona... 3,000 125 1,206 (27) 126 1,178 1,304 1,168 1962(C)
1000 E. Ball Road,
Anaheim,
California(2)...... 5,846 838 1,984 719 838 2,703 3,541 1,563 1979(A)(3)
1956(C)
1230 S. Lewis
Street,
Anaheim,
California(2)...... -- 395 1,489 1,994 395 3,483 3,878 2,444 1982(C)
12681/12691 Pala
Drive,
Garden Grove,
California......... 5,996 471 2,115 1,210 471 3,325 3,796 2,857 1980(A)
1970(C)
-------- ------- -------- ------- ------- -------- -------- --------
Total........... $233,857 $11,830 $162,766 $51,250 $12,490 $212,493 $224,983 $101,774
======== ======= ======== ======= ======= ======== ======== ========
</TABLE>
- ----
(1) Two notes payable of $8,639,000 and $7,000,000 are secured by the
buildings located at 2260 and 2270 E. El Segundo Boulevard, El Segundo,
California, and the buildings located at 185/181 S. Douglas Street, El
Segundo, California.
(2) A note payable of $5,846,000 is secured by the buildings located at 1000
East Ball Road, Anaheim, California and 1230 South Lewis Street, Anaheim,
California.
(3) The Property located at 1000 E. Ball Road, Anaheim, California, was
developed for a third party by the Company in 1956, and acquired by the
Company in 1979.
F-25
<PAGE>
KILROY GROUP
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
The aggregate gross cost of property included above, for federal income tax
purposes, approximated $200,782,000 as of December 31, 1995.
The following table reconciles the historical cost of the Kilroy Properties
from January 1, 1993 to December 31, 1995:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------
1995 1994 1993
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Balance, beginning of period.................... $223,821 $222,056 $235,549
Additions during period--Acquisition,
improvements, etc............................ 1,162 1,765 633
Deductions during period--Write-off of tenant
improvements................................. -- -- (14,126)
-------- -------- --------
Balance, close of period........................ $224,983 $223,821 $222,056
======== ======== ========
</TABLE>
The following table reconciles the accumulated depreciation from January 1,
1993 to December 31, 1995:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------
1995 1994 1993
-------- ------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Balance, beginning of period..................... $ 93,475 $84,759 $ 86,442
Additions during period--Depreciation and
amortization for the year..................... 8,299 8,716 9,782
Deductions during period--Accumulated
depreciation of written-off tenant
improvements.................................. -- -- (11,465)
-------- ------- --------
Balance, close of period......................... $101,774 $93,475 $ 84,759
======== ======= ========
</TABLE>
F-26
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Partners of Kilroy Group:
We have audited the accompanying combined historical summaries of certain
revenues and certain expenses (defined as operating revenues less direct
operating expenses) of the Acquisition Properties for the nine months ended
September 30, 1996 and the year ended December 31, 1995. These financial
statements are the responsibility of the Acquisition Properties' management.
Our responsibility is to express an opinion on these combined financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the combined historical summary of
certain revenues and certain expenses is free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts and
disclosures in the combined historical summary of certain revenues and certain
expenses. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
presentation of the combined historical summary of certain revenues and
certain expenses. We believe our audits provide a reasonable basis for our
opinion.
The accompanying combined historical summaries of certain revenues and
certain expenses were prepared for the purpose of complying with the rules and
regulations of the Securities and Exchange Commission for inclusion in the
Form S-11 Registration Statement of Kilroy Realty Corporation. Material
amounts, described in Note 1 to the historical summaries of certain revenues
and certain expenses, that would not be comparable to those resulting from the
proposed future operation of the Acquisition Properties are excluded, and the
summaries are not intended to be a complete presentation of the revenues and
expenses of these properties.
In our opinion, such historical summaries of certain revenues and certain
expenses present fairly, in all material respects, the combined certain
revenues and certain expenses, as defined in Note 1, of the Acquisition
Properties for the nine months ended September 30, 1996 and the year ended
December 31, 1995 in conformity with generally accepted accounting principles.
DELOITTE & TOUCHE LLP
Los Angeles, California
December 20, 1996
F-27
<PAGE>
ACQUISITION PROPERTIES
COMBINED HISTORICAL SUMMARIES OF CERTAIN REVENUES AND CERTAIN EXPENSES
NINE MONTHS ENDED SEPTEMBER 30, 1996 AND
YEAR ENDED DECEMBER 31, 1995
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED
SEPTEMBER 30, DECEMBER 31,
1996 1995
------------- ------------
<S> <C> <C>
CERTAIN REVENUES:
Rental income..................................... $5,875 $7,355
Tenant reimbursements............................. 743 884
Other income...................................... 299 407
------ ------
Total certain revenues.......................... 6,917 8,646
------ ------
CERTAIN EXPENSES:
Property expenses (Note 3)........................ 1,315 1,882
Real estate taxes................................. 417 495
Ground rent (Note 4).............................. 253 338
General and administrative........................ 200 303
------ ------
Total certain expenses.......................... 2,185 3,018
------ ------
CERTAIN REVENUES IN EXCESS OF CERTAIN EXPENSES...... $4,732 $5,628
====== ======
</TABLE>
See notes to combined statements of certain revenues and certain expenses.
F-28
<PAGE>
ACQUISITION PROPERTIES
NOTES TO COMBINED HISTORICAL SUMMARIES OF CERTAIN REVENUES AND CERTAIN
EXPENSES
1. BASIS OF PRESENTATION
The combined historical summaries of certain revenues and certain expenses
relate to the operations of four properties, Westlake Plaza Centre (located in
Thousand Oaks), Long Beach Phase I, La Palma Business Center (located in
Anaheim) and the Monarch Building (located in Garden Grove) (collectively, the
"Acquisition Properties"), which are expected to be acquired by Kilroy Realty
Corporation (the "Company") from four unaffiliated third parties.
Operating revenues and operating expenses are presented on the accrual basis
of accounting. The accompanying statements of certain revenues and certain
expenses are not representative of the actual operations for the period
presented, as certain revenues and certain expenses that may not be comparable
to the revenues and expenses expected to be incurred by the Company in the
proposed future operation of the Acquisition Properties have been excluded.
Revenues excluded consist of termination fees and interest income. Expenses
excluded consist of interest, depreciation, professional fees and other costs
not directly related to the future operations of the Acquisition Properties.
Financial statements for the three years ended December 31, 1995, as
required by Rule 3-14(a)(1), have not been provided because:
(i) the properties were not acquired from a related party;
(ii) material factors such as rental markets and occupancy rates have
been disclosed in the Prospectus under the caption "Prospectus
Summary--The Office and Industrial Properties" and "Business and
Properties--General"; and
(iii) management is not aware of any material factors relating to the
properties that would cause the summaries of certain revenues and
certain expenses for the nine months ended September 30, 1996 and
the year ended December 31, 1995 not to be indicative of future
operating results.
2. OPERATING LEASES
Rental income is recognized on the accrual method as earned, which
approximates recognition on a straight line basis.
The Acquisition Properties are leased to tenants under operating leases with
expiration dates extending to the year 2009. Future minimum rents under the
Acquisition Property's office leases, excluding tenant reimbursements are as
follows as of September 30, 1996:
<TABLE>
<CAPTION>
YEAR ENDING
DECEMBER 31,
------------ (IN THOUSANDS)
<S> <C>
1996 (three months)....................................... $ 1,988
1997...................................................... 8,244
1998...................................................... 8,119
1999...................................................... 7,270
2000...................................................... 6,413
Thereafter................................................ 25,768
-------
Total................................................... $57,802
=======
</TABLE>
F-29
<PAGE>
ACQUISITION PROPERTIES
NOTES TO COMBINED HISTORICAL SUMMARIES OF CERTAIN REVENUES AND CERTAIN
EXPENSES--(CONTINUED)
3. RELATED-PARTY TRANSACTIONS
Property expenses include $137,000 and $181,000 of management fees for the
nine months ended September 30, 1996 and for the year ended December 31, 1995,
respectively, related to Long Beach Phase I, which was paid to an affiliate of
the Company.
4. COMMITMENTS
Long Beach Phase I is located on land that is under a noncancelable ground
lease which expires in 2035 and is classified as an operating lease. Minimum
annual lease payments are as follows as of September 30, 1996:
<TABLE>
<CAPTION>
YEAR ENDING
DECEMBER 31,
------------ (IN THOUSANDS)
<S> <C>
1996 (three months)....................................... $ 85
1997...................................................... 338
1998...................................................... 338
1999...................................................... 338
2000...................................................... 338
Thereafter................................................ 11,661
-------
Total................................................... $13,098
=======
</TABLE>
F-30
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY IN-
FORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND, IF GIVEN
OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR ANY OF THE UNDERWRITERS. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF ANY OFFER TO BUY
ANY SECURITY OTHER THAN THE SHARES OF COMMON STOCK OFFERED BY THIS PROSPECTUS,
NOR DOES IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY
THE SHARES OF COMMON STOCK BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER
OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM IT IS UNLAW-
FUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPEC-
TUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IM-
PLICATION THAT ANY INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUB-
SEQUENT TO THE DATE HEREOF.
UNTIL , 1997 (25 DAYS AFTER COMMENCEMENT OF THIS OFFERING), ALL DEALERS EF-
FECTING TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR NOT PARTICIPAT-
ING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN
ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS
UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
--------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary....................................................... 1
Risk Factors............................................................. 20
Formation and Structure of the Company................................... 36
Formation of Kilroy Services, Inc........................................ 44
The Company.............................................................. 45
Use of Proceeds.......................................................... 51
Distribution Policy...................................................... 53
Capitalization........................................................... 58
Dilution................................................................. 59
Selected Financial Data.................................................. 60
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 62
Business and Properties.................................................. 68
Policies with Respect to Certain Activities.............................. 111
The Financing............................................................ 116
Management............................................................... 118
Certain Relationships and Related Transactions........................... 128
Principal Stockholders................................................... 129
Description of Capital Stock............................................. 130
Certain Provisions of Maryland Law and of the Company's Articles of
Incorporation and Bylaws................................................ 134
Partnership Agreement of the Operating Partnership....................... 139
Shares Available for Future Sale......................................... 143
Federal Income Tax Consequences.......................................... 145
Other Tax Consequences................................................... 158
ERISA Considerations..................................................... 158
Underwriting............................................................. 160
Legal Matters............................................................ 161
Experts.................................................................. 161
Additional Information................................................... 162
Glossary................................................................. 163
Index to Financial Statements............................................ F-1
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
12,500,000 Shares
[LOGO OF KILROY REALTY CORPORATION]
KILROY REALTY CORPORATION
Common Stock
----------
PROSPECTUS
----------
PRUDENTIAL SECURITIES INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
J.P. MORGAN & CO.
SMITH BARNEY INC.
, 1997
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
DESCRIPTION OF GRAPHICS AND PHOTOS FOR EDGAR TRANSMISSION
Inside Front Cover: Map of Southern California, indicating the Company's office
and industrial properties by location.
Fold-out Inside Front Cover: Ten photos of Office Properties: Clockwise, in
order: 1. Two photos of SeaTac Office Center in Seattle, Washington --
pedestrian view of the office's exterior at night and aerial view of the Office
Property and parking lot during the day; 2. Four photos of Kilroy Airport
Center Long Beach in Long Beach, California -- pedestrian views of the office's
main entrance at night and during the day and interior view of the office's
reception area; 3. 2829 Townsgate Road in Thousand Oaks, California -- view from
across the parking lot of the office building; 4. Three photos of Kilroy
Airport Center in El Segundo, California -- the office's main entrance from two
different pedestrian views, and two office buildings on the northwest corner of
the property from across the street.
Inside Back Cover: Five photos of Industrial Properties: Top to bottom, in
order: 1. Photo of 3340 East La Palma in Anaheim, California; 2. 1230 South
Lewis Street in Anaheim, California; 3. 2031 East Mariposa Avenue in El
Segundo, California; 4. 2265 East El Segundo Boulevard in El Segundo,
California; 5. 2260 East El Segundo Boulevard in El Segundo, California.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 30. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses in connection with the
issuance and distribution of the securities being registered hereunder. Except
for the SEC registration fee, all amounts are estimates.
<TABLE>
<S> <C>
SEC Registration Fee........................................... $ 100,189
NYSE Filing Fee................................................ 126,600
Printing and Engraving Expenses................................ 900,000
Legal Fees and Expenses........................................ 1,700,000
Accounting Fees and Expenses................................... 1,350,000
Registrar and Transfer Agent Fees and Expenses................. 2,500
Blue Sky Fees and Expenses..................................... 20,000
National Association of Securities Dealers, Inc. .............. 26,375
Miscellaneous Expenses......................................... 315,336
----------
Total........................................................ $4,541,000
==========
</TABLE>
All of the costs identified above will be paid by the Company.
ITEM 31. SALES TO SPECIAL PARTIES.
See Item 32.
ITEM 32. RECENT SALES OF UNREGISTERED SECURITIES.
In connection with the Formation Transactions, immediately prior to or
simultaneous with the consummation of the Offering an aggregate of 2,652,374
Units will be issued to Kilroy Industries, Kilroy Technologies Company, LLC, a
California limited liability company, John B. Kilroy, Sr., John B. Kilroy,
Jr., Ms. Patrice Bouzaid, Ms. Susan Hahn, Ms. Anne McCahon and Ms. Dana
Pantuso, the daughters of John B. Kilroy, Sr., and Marshall L. McDaniel, a
long-time employee of Kilroy Industries, each of which will be transferring
interests in the Properties and certain other assets to the Company in
consideration of the transfer of such Properties and assets. The book value to
the Continuing Investors of the assets to be contributed to the Operating
Partnership is a negative $113.2 million and the value of the Units
representing limited partnership interests in the Operating Partnership to be
received by the Continuing Investors is $50.7 million, assuming a Unit value
equal to the assumed initial public offering price of $22.50 per share. No
independent valuations or appraisals of the Properties were obtained in
connection with the Formation Transactions. All of such persons irrevocably
committed to the exchange of Units for the contribution of their respective
interests in the Properties on November 3, 1996, prior to the filing of the
Registration Statement, and are "accredited investors" as defined under
Regulation D. The issuance of such Units will be effected in reliance upon an
exemption from registration under Section 4(2) of the Securities Act as a
transaction by an issuer not involving a public offering. See "The Formation
and Structure of the Company."
In September 1996, 50 shares of Common Stock were issued to John B. Kilroy,
Sr. for an aggregate purchase price of $1,000. The issuance of such shares was
effected in reliance upon an exemption from registration under Section 4(2) of
the Securities Act as a transaction by an issuer not involving a public
offering. In addition, upon consummation of the Offering, 100,000 restricted
shares of Common Stock will be issued to Mr. Richard E. Moran Jr. against the
payment of $1,000 in cash therefor pursuant to the terms of his employment
agreement. The issuance of such shares will be effected in reliance upon an
exemption from registration under Section 4(2) of the Securities Act as a
transaction by an issuer not involving a public offering.
II-1
<PAGE>
ITEM 33. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 2-418 of the MGCL permits a corporation to indemnify its directors
and officers and certain other parties against judgments, penalties, fines,
settlements, and reasonable expenses actually incurred by them in connection
with any proceeding to which they may be made a party by reason of their
service in those or other capacities unless it is established that (i) the act
or omission of the director or officer was material to the matter giving rise
to the proceeding and (a) was committed in bad faith or (b) was the result of
active and deliberate dishonesty; (ii) the director or officer actually
received an improper personal benefit in money, property or services; or (iii)
in the case of any criminal proceeding, the director or officer had reasonable
cause to believe that the act or omission was unlawful. Indemnification may be
made against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by the director or officer in connection with the
proceeding; provided, however, that if the proceeding is one by or in the
right of the corporation, indemnification may not be made with respect to any
proceeding in which the director or officer has been adjudged to be liable to
the corporation. In addition, a director or officer may not be indemnified
with respect to any proceeding charging improper personal benefit to the
director or officer, whether or not involving action in the director's or
officer's official capacity, in which the director or officer was adjudged to
be liable on the basis that personal benefit was received. The termination of
any proceeding by conviction, or upon a plea of nolo contendere or its
equivalent, or an entry of any order of probation prior to judgment, creates a
rebuttable presumption that the director or officer did not meet the requisite
standard of conduct required for indemnification to be permitted.
In addition, Section 2-418 of the MGCL requires that, unless prohibited by
its charter, a corporation indemnify any director or officer who is made a
party to any proceeding by reason of service in that capacity against
reasonable expenses incurred by the director or officer in connection with the
proceeding, in the event that the director or officer is successful, on the
merits or otherwise, in the defense of the proceeding.
The Company's Charter and Bylaws provide in effect for the indemnification
by the Company of the directors and officers of the Company to the fullest
extent permitted by applicable law. The Company is currently in the process of
purchasing directors' and officers' liability insurance for the benefit of its
directors and officers and expects such insurance to be in effect prior to
consummation of the Offering.
ITEM 34. TREATMENT OF PROCEEDS FROM STOCK BEING REGISTERED.
Not applicable.
II-2
<PAGE>
ITEM 35. FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES AND EXHIBITS.
(a)(1) FINANCIAL STATEMENTS
Kilroy Realty Corporation
Pro Forma (Unaudited):
Pro Forma Condensed Consolidated Balance Sheet as of September 30, 1996
Notes to Pro Forma Condensed Consolidated Balance Sheet
Pro Forma Condensed Consolidated Statements of Operations for the nine
months ended September 30, 1996 and the Year Ended December 31, 1995
Notes to Pro Forma Condensed Consolidated Statements of Operations
Historical:
Independent Auditors' Report
Balance Sheet as of September 30, 1996
Notes to Balance Sheet
Kilroy Group (Predecessor Affiliates)
Independent Auditors' Report
Combined Balance Sheets as of September 30, 1996, and December 31, 1995
and 1994
Combined Statements of Operations for the nine months ended September 30,
1996 and 1995 and the three years ended December 31, 1995
Combined Statements of Partners' Deficit for the nine months ended
September 30, 1996 and for the three years ended December 31, 1995
Combined Statements of Cash Flows for the nine months ended September 30,
1996 and 1995 and the three years ended December 31, 1995
Notes to Combined Financial Statements
Acquisition Properties
Independent Auditors' Report
Combined Historical Summaries of Certain Revenues and Certain Expenses
for the nine months ended September 30, 1996 and for the year ended
December 31, 1995
Notes to Combined Historical Summaries of Certain Revenues and Certain
Expenses
(a)(2) FINANCIAL STATEMENT SCHEDULE
Schedule II--Valuation and qualifying accounts for the three years ended
December 31, 1995
(b) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
***1.1 Form of Underwriting Agreement.
**3.1 Articles of Amendment and Restatement of the Registrant.
**3.2 Amended and Restated Bylaws of the Registrant.
**3.3 Form of Certificate for Common Stock of the Registrant.
***5.1 Opinion of Ballard Spahr Andrews & Ingersoll regarding the validity of
the Common Stock being registered.
***8.1 Opinion of Latham & Watkins regarding certain federal income tax
matters.
**10.1 Amended and Restated Agreement of Limited Partnership of Kilroy
Realty, L.P.
**10.2 Form of Registration Rights Agreement among the Registrant and the
persons named therein.
**10.3 Omnibus Agreement dated as of October 30, 1996 by and among Kilroy
Realty, L.P. and the parties named therein.
***10.4 Supplemental Representations, Warranties and Indemnity Agreement by
and among Kilroy Realty, L.P. and the parties named therein.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
-------- -----------
<C> <S>
**10.5 Pledge Agreement by and among Kilroy Realty, L.P., John B. Kilroy,
Sr., John B. Kilroy, Jr. and Kilroy Industries.
**10.6 1997 Stock Incentive Plan of the Registrant and Kilroy Realty, L.P.
**10.7 Form of Indemnity Agreement of the Registrant and Kilroy Realty, L.P.
with certain officers and directors.
**10.8 Lease Agreement dated January 24, 1989 by and between Kilroy Long
Beach Associates and the City of Long Beach for Kilroy Long Beach
Phase I.
**10.9 First Amendment to Lease Agreement dated December 28, 1990 by and
between Kilroy Long Beach Associates and the City of Long Beach for
Kilroy Long Beach Phase I.
**10.10 Lease Agreement dated July 17, 1985 by and between Kilroy Long Beach
Associates and the City of Long Beach for Kilroy Long Beach Phase
III.
**10.11 Lease Agreement dated April 21, 1988 by and between Kilroy Long Beach
Associates and the Board of Water Commissioners of the City of Long
Beach, acting for and on behalf of the City of Long Beach, for Long
Beach Phase IV.
**10.12 Lease Agreement dated December 30, 1988 by and between Kilroy Long
Beach Associates and the City of Long Beach for Kilroy Long Beach
Phase II.
**10.13 First Amendment to Lease, dated January 24, 1989, by and between
Kilroy Long Beach Associates and the City of Long Beach for Kilroy
Long Beach Phase III.
**10.14 Second Amendment to Lease Agreement, dated December 28, 1990, by and
between Kilroy Long Beach Associates and the City of Long Beach for
Kilroy Long Beach Phase III.
**10.15 First Amendment to Lease Agreement, dated December 28, 1990, by and
between Kilroy Long Beach Associates and the City of Long Beach for
Kilroy Long Beach Phase II.
**10.16 Third Amendment to Lease Agreement, dated October 10, 1994, by and
between Kilroy Long Beach Associates and the City of Long Beach for
Kilroy Long Beach Phase III.
**10.17 Development Agreement by and between Kilroy Long Beach Associates and
the City of Long Beach.
**10.18 Amendment No. 1 to Development Agreement by and between Kilroy Long
Beach Associates and the City of Long Beach.
**10.19 Ground Lease by and between Frederick Boysen and Ted Boysen and
Kilroy Industries dated May 15, 1969 for SeaTac Office Center.
**10.20 Amendment No. 1 to Ground Lease and Grant of Easement dated April 27,
1973 among Frederick Boysen and Dorothy Boysen, Ted Boysen and Rose
Boysen and Sea/Tac Properties.
**10.21 Amendment No. 2 to Ground Lease and Grant of Easement dated May 17,
1977 among Frederick Boysen and Dorothy Boysen, Ted Boysen and Rose
Boysen and Sea/Tac Properties.
**10.22 Airspace Lease dated July 10, 1980 by and among the Washington State
Department of Transportation, as lessor, and Sea Tac Properties, Ltd.
and Kilroy Industries, as lessee.
**10.23 Lease dated April 1, 1980 by and among Bow Lake, Inc., as lessor, and
Kilroy Industries and SeaTac Properties, Ltd., as lessees for Sea/Tac
Office Center.
**10.24 Amendment No. 1 to Ground Lease dated September 17, 1990 between Bow
Lake, Inc., as lessor, and Kilroy Industries and Sea/Tac Properties,
Ltd., as lessee.
**10.25 Amendment No. 2 to Ground Lease dated March 21, 1991 between Bow
Lake, Inc., as lessor, and Kilroy Industries and Sea/Tac Properties,
Ltd., as lessee.
***10.26 Property Management Agreement between Kilroy Realty Finance
Partnership, L.P. and Kilroy Realty, L.P.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
-------- -----------
<C> <S>
***10.27 Form of Environmental Indemnity Agreement.
**10.28 Option Agreement by and between Kilroy Realty, L.P. and Kilroy
Airport Imperial Co.
**10.29 Option Agreement by and between Kilroy Realty, L.P. and Kilroy
Calabasas Associates.
**10.30 Employment Agreement between the Registrant and John B. Kilroy, Jr.
**10.31 Employment Agreement between the Registrant and Richard E. Moran Jr.
**10.32 Employment Agreement between the Registrant and Jeffrey C. Hawken.
**10.33 Employment Agreement between the Registrant and C. Hugh Greenup.
**10.34 Noncompetition Agreement by and between the Registrant and John B.
Kilroy, Sr.
**10.35 Noncompetition Agreement by and between the Registrant and John B.
Kilroy, Jr.
**10.36 License Agreement by and among the Registrant and the other persons
named therein.
**10.37 Form of Indenture of Mortgage, Deed of Trust, Security Agreement,
Financing Statement, Fixture Filing and Assignment of Leases, Rents
and Security Deposits.
**10.38 Form of Mortgage Note.
**10.39 Form of Indemnity Agreement.
**10.40 Form of Assignment of Leases, Rents and Security Deposits.
**10.41 Form of Credit Agreement.
**10.42 Form of Variable Interest Rate Indenture of Mortgage, Deed of Trust,
Security Agreement, Financing Statement, Fixture Filing and
Assignment of Leases and Rents.
**10.43 Form of Environmental Indemnity Agreement.
**10.44 Form of Assignment, Rents and Security Deposits.
**10.45 Form of Revolving Credit Agreement.
**10.46 Form of Mortgage, Deed of Trust, Security Agreement, Financing
Statement, Fixture Filing and Assignment of Leases and Rents.
**10.47 Assignment of Leases, Rents and Security Deposits.
**21.1 List of Subsidiaries of the Registrant.
***23.1 Consent of Latham & Watkins (filed with Exhibit 8.1).
***23.2 Consent of Ballard Spahr Andrews & Ingersoll (filed with Exhibit
5.1).
***23.3 Consent of Deloitte & Touche LLP.
***23.4 Consent of Robert Charles Lesser & Co.
**23.5 Consent of William P. Dickey.
**23.6 Consent of Matthew J. Hart.
**23.7 Consent of Dale F. Kinsella.
**24.1 Power of Attorney.
**24.2 Power of Attorney.
**27.1 Financial Data Schedule.
</TABLE>
- --------
** Previously Filed
*** Filed Herewith
II-5
<PAGE>
ITEM 36. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the provisions described under Item 33
above, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer,
or controlling person of the registrant in the successful defense of any
action, suit, or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
The Registrant hereby undertakes:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of Prospectus filed as part of the
Registration Statement in reliance upon Rule 430A and contained in the form
of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Act shall be deemed to be part of the Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
The Registrant hereby undertakes to provide to the Underwriters at the
closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
II-6
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS AMENDMENT NO. 5 TO ITS REGISTRATION STATEMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED THEREUNTO DULY AUTHORIZED IN THE CITY
OF EL SEGUNDO, STATE OF CALIFORNIA, ON THE 28TH DAY OF JANUARY, 1997.
Kilroy Realty Corporation
By: /s/ John B. Kilroy, Sr
-----------------------------------
JOHN B. KILROY, SR.
Chairman of the Board of Directors
Date: January 28, 1997
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
AMENDMENT NO. 5 HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS ON BEHALF OF
THE REGISTRANT AND IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ John B. Kilroy, Sr. Chairman of the January 28, 1997
- ------------------------------------- Board and Director
JOHN B. KILROY, SR.
* President, Chief January 28, 1997
- ------------------------------------- Executive Officer
JOHN B. KILROY, JR. and Director
(Principal
Executive Officer)
/s/ Richard E. Moran Jr. Chief Financial January 28, 1997
- ------------------------------------- Officer and
RICHARD E. MORAN JR. Secretary
(Principal
Financial Officer
and Principal
Accounting Officer)
/s/ John B. Kilroy, Sr.
* By_________________________________
JOHN B. KILROY, SR.
Attorney-in-Fact
</TABLE>
II-7
<PAGE>
KILROY GROUP
SCHEDULE OF VALUATION AND QUALIFYING ACCOUNTS
EACH OF THE YEARS ENDED DECEMBER 31, 1995, 1994 AND 1993
(IN THOUSANDS)
<TABLE>
<CAPTION>
CHARGED TO
BALANCE AT COSTS AND BALANCE
BEGINNING EXPENSES OR AT END
OF PERIOD RENTAL REVENUE DEDUCTIONS OF PERIOD
---------- -------------- ---------- ---------
<S> <C> <C> <C> <C>
Year Ended December 31, 1995
Allowance for uncollectible
rent......................... $837 $1,000 $ -- $1,837
==== ====== ===== ======
Year Ended December 31, 1994
Allowance for uncollectible
rent......................... $514 $ 909 $(586) $ 837
==== ====== ===== ======
Year Ended December 31, 1993
Allowance for uncollectible
rent......................... $337 $ 350 $(173) $ 514
==== ====== ===== ======
</TABLE>
S-1
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NO. DESCRIPTION OF EXHIBIT NO.
-------- ---------------------- ----------
<C> <S> <C>
***1.1 Form of Underwriting Agreement.
**3.1 Articles of Amendment and Restatement of the Registrant.
**3.2 Amended and Restated Bylaws of the Registrant.
**3.3 Form of Certificate for Common Stock of the Registrant.
***5.1 Opinion of Ballard Spahr Andrews & Ingersoll regarding
the validity of the Common Stock being registered.
***8.1 Opinion of Latham & Watkins regarding certain federal
income tax matters.
**10.1 Amended and Restated Agreement of Limited Partnership of
Kilroy Realty, L.P.
**10.2 Form of Registration Rights Agreement among the
Registrant and the persons named therein.
**10.3 Omnibus Agreement dated as of October 30, 1996 by and
among Kilroy Realty, L.P. and the parties named therein.
***10.4 Supplemental Representations, Warranties and Indemnity
Agreement by and among Kilroy Realty, L.P. and the
parties named therein.
**10.5 Pledge Agreement by and among Kilroy Realty, L.P., John
B. Kilroy, Sr., John B. Kilroy, Jr. and Kilroy
Industries.
**10.6 1997 Stock Incentive Plan of the Registrant and Kilroy
Realty, L.P.
**10.7 Form of Indemnity Agreement of the Registrant and Kilroy
Realty, L.P. with certain officers and directors.
**10.8 Lease Agreement dated January 24, 1989 by and between
Kilroy Long Beach Associates and the City of Long Beach
for Kilroy Long Beach Phase I.
**10.9 First Amendment to Lease Agreement dated December 28,
1990 by and between Kilroy Long Beach Associates and the
City of Long Beach for Kilroy Long Beach Phase I.
**10.10 Lease Agreement dated July 17, 1985 by and between
Kilroy Long Beach Associates and the City of Long Beach
for Kilroy Long Beach Phase III.
**10.11 Lease Agreement dated April 21, 1988 by and between
Kilroy Long Beach Associates and the Board of Water
Commissioners of the City of Long Beach, acting for and
on behalf of the City of Long Beach, for Long Beach
Phase IV.
**10.12 Lease Agreement dated December 30, 1988 by and between
Kilroy Long Beach Associates and the City of Long Beach
for Kilroy Long Beach Phase II.
**10.13 First Amendment to Lease, dated January 24, 1989, by and
between Kilroy Long Beach Associates and the City of
Long Beach for Kilroy Long Beach Phase III.
**10.14 Second Amendment to Lease Agreement, dated December 28,
1990, by and between Kilroy Long Beach Associates and
the City of Long Beach for Kilroy Long Beach Phase III.
**10.15 First Amendment to Lease Agreement, dated December 28,
1990, by and between Kilroy Long Beach Associates and
the City of Long Beach for Kilroy Long Beach Phase II.
**10.16 Third Amendment to Lease Agreement, dated October 10,
1994, by and between Kilroy Long Beach Associates and
the City of Long Beach for Kilroy Long Beach Phase III.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NO. DESCRIPTION OF EXHIBIT NO.
-------- ---------------------- ----------
<C> <S> <C>
**10.17 Development Agreement by and between Kilroy Long Beach
Associates and the City of Long Beach.
**10.18 Amendment No. 1 to Development Agreement by and between
Kilroy Long Beach Associates and the City of Long Beach.
**10.19 Ground Lease by and between Frederick Boysen and Ted
Boysen and Kilroy Industries dated May 15, 1969 for
SeaTac Office Center.
**10.20 Amendment No. 1 to Ground Lease and Grant of Easement
dated April 27, 1973 among Frederick Boysen and Dorothy
Boysen, Ted Boysen and Rose Boysen and Sea/Tac
Properties.
**10.21 Amendment No. 2 to Ground Lease and Grant of Easement
dated May 17, 1977 among Frederick Boysen and Dorothy
Boysen, Ted Boysen and Rose Boysen and Sea/Tac
Properties.
**10.22 Airspace Lease dated July 10, 1980 by and among the
Washington State Department of Transportation, as
lessor, and Sea Tac Properties, Ltd. and Kilroy
Industries, as lessee.
**10.23 Lease dated April 1, 1980 by and among Bow Lake, Inc.,
as lessor, and Kilroy Industries and Sea/Tac Properties,
Ltd., as lessees for Sea/Tac Office Center.
**10.24 Amendment No. 1 to Ground Lease dated September 17, 1990
between Bow Lake, Inc., as lessor, and Kilroy Industries
and Sea/Tac Properties, Ltd., as lessee.
**10.25 Amendment No. 2 to Ground Lease dated March 21, 1991
between Bow Lake, Inc., as lessor, and Kilroy Industries
and Sea/Tac Properties, Ltd., as lessee.
***10.26 Property Management Agreement between Kilroy Realty
Finance Partnership, L.P. and Kilroy Realty, L.P.
***10.27 Form of Environmental Indemnity Agreement.
**10.28 Option Agreement by and between Kilroy Realty, L.P. and
Kilroy Airport Imperial Co.
**10.29 Option Agreement by and between Kilroy Realty, L.P. and
Kilroy Calabasas Associates.
**10.30 Employment Agreement between the Registrant and John B.
Kilroy, Jr.
**10.31 Employment Agreement between the Registrant and Richard
E. Moran Jr.
**10.32 Employment Agreement between the Registrant and Jeffrey
C. Hawken.
**10.33 Employment Agreement between the Registrant and C. Hugh
Greenup.
**10.34 Noncompetition Agreement by and between the Registrant
and John B. Kilroy, Sr.
**10.35 Noncompetition Agreement by and between the Registrant
and John B. Kilroy, Jr.
**10.36 License Agreement by and among the Registrant and the
other parties named therein.
**10.37 Form of Indenture of Mortgage, Deed of Trust, Security
Agreement, Financing Statement, Fixture Filing and
Assignment of Leases, Rents and Security Deposits.
**10.38 Form of Mortgage Note.
**10.39 Form of Indemnity Agreement.
**10.40 Form of Assignment of Leases, Rents and Security
Deposits.
**10.41 Form of Credit Agreement.
**10.42 Form of Variable Interest Rate Indenture of Mortgage,
Deed of Trust, Security Agreement, Financing Statement,
Fixture Filing and Assignment of Leases and Rents.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NO. DESCRIPTION OF EXHIBIT NO.
-------- ---------------------- ----------
<C> <S> <C>
**10.43 Form of Environmental Indemnity Agreement.
**10.44 Form of Assignment, Rents and Security Deposits.
**10.45 Form of Revolving Credit Agreement.
**10.46 Form of Mortgage, Deed of Trust, Security Agreement,
Financing Statement, Fixture Filing and Assignment of
Leases and Rents.
**10.47 Assignment of Leases, Rents and Security Deposits.
**21.1 List of Subsidiaries of the Registrant.
***23.1 Consent of Latham & Watkins (filed with Exhibit 8.1).
***23.2 Consent of Ballard Spahr Andrews & Ingersoll (filed with
Exhibit 5.1).
***23.3 Consent of Deloitte & Touche LLP.
***23.4 Consent of Robert Charles Lesser & Co.
**23.5 Consent of William P. Dickey.
**23.6 Consent of Matthew J. Hart.
**23.7 Consent of Dale F. Kinsella.
**24.1 Power of Attorney.
**24.2 Power of Attorney.
**27.1 Financial Data Schedule
</TABLE>
- --------
** Previously Filed
*** Filed Herewith
<PAGE>
EXHIBIT 1.1
KILROY REALTY CORPORATION
11,300,000 Shares/1/
Common Stock
UNDERWRITING AGREEMENT
----------------------
________ ___, 1997
PRUDENTIAL SECURITIES INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
J.P. MORGAN SECURITIES INC.
SMITH BARNEY INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Dear Sirs:
Kilroy Realty Corporation, a Maryland corporation (the "Company"), and
Kilroy Realty, L.P., a Delaware limited partnership (the "Operating
Partnership"), each hereby confirms its agreement with the several underwriters
named in Schedule 1 hereto (the "Underwriters"), for whom you have been duly
authorized to act as representatives (in such capacities, the
"Representatives"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be to the
Underwriters.
1. Securities. Subject to the terms and conditions herein contained, the
----------
Company proposes to issue and sell to the several Underwriters an aggregate of
11,300,000 shares (the "Firm Securities") of the Company's common stock, par
value $.01 per share ("Common Stock"). The Company also proposes to issue and
sell to the several Underwriters not more than 1,695,000 additional shares of
Common Stock if requested by the Representatives as provided in Section 3 of
this Agreement. Any and all shares of Common Stock to be purchased by the
Underwriters pursuant to such option are referred to herein as the "Option
Securities", and the Firm Securities and any Option Securities are collectively
referred to herein as the "Securities".
- --------------------
/1/ Plus an option to purchase from Kilroy Realty Corporation up to 1,695,000
additional shares to cover over-allotments.
<PAGE>
2. Representations and Warranties of the Company and the Operating
---------------------------------------------------------------
Partnership. The Company and the Operating Partnership, jointly and severally,
- -----------
represent and warrant to, and agree with, each of the several Underwriters that:
(a) A registration statement on Form S-11 (File No. 333-15553) with
respect to the Securities, including a prospectus subject to completion, has
been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and one
or more amendments to such registration statement may have been so filed. After
the execution of this Agreement, the Company will file with the Commission
either (i) if such registration statement, as it may have been amended, has been
declared by the Commission to be effective under the Act, either (A) if the
Company relies on Rule 434 under the Act, a Term Sheet (as hereinafter defined)
relating to the Securities, that shall identify the Preliminary Prospectus (as
hereinafter defined) that it supplements containing such information as is
required or permitted by Rules 434, 430A and 424(b) under the Act or (B) if the
Company does not rely on Rule 434 under the Act, a prospectus in the form most
recently included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A under the Act or permitted by
Rule 424(b) under the Act, and in the case of either clause (i)(A) or (i)(B) of
this sentence as have been provided to and approved by the Representatives prior
to the execution of this Agreement, or (ii) if such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the Act, an amendment to such registration statement, including
a form of prospectus, a copy of which amendment has been furnished to and
approved by the Representatives prior to the execution of this Agreement. The
Company may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Act for the purpose of registering certain
additional Securities, which registration, assuming compliance with the
requirements of Rule 462(b), shall be effective upon filing with the Commission.
As used in this Agreement, the term "Original Registration Statement" means the
registration statement initially filed relating to the Securities, as amended at
the time when it was or is declared effective, including all financial schedules
and exhibits thereto and including any information omitted therefrom pursuant to
Rule 430A under the Act and included in the Prospectus (as hereinafter defined);
the term "Rule 462(b) Registration Statement" means any registration statement
filed with the Commission pursuant to Rule 462(b) under the Act (including the
Registration Statement and any Preliminary Prospectus or Prospectus incorporated
therein at the time such Registration Statement becomes effective); the term
"Registration Statement" includes both the Original Registration Statement and
any Rule 462(b) Registration Statement; the term "Preliminary Prospectus" means
each prospectus subject to completion filed with such registration statement and
any amendment or supplement thereto (including the prospectus subject to
completion, if any, included in the Registration Statement or any amendment
thereto at the time it was or is declared effective); the term "Prospectus"
means:
(A) if the Company relies on Rule 434 under the Act, the Term Sheet
relating to the Securities that is first filed pursuant to Rule 424(b)(7)
under the Act, together with the Preliminary Prospectus identified therein
that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act, the
prospectus first filed with the Commission pursuant to Rule 424(b) under
the Act; or
2
<PAGE>
(C) if the Company does not rely on Rule 434 under the Act and if no
prospectus is required to be filed pursuant to Rule 424(b) under the Act,
the prospectus included in the Registration Statement;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
that includes a Term Sheet shall mean the date of such Term Sheet.
(b) The Commission has not issued any order preventing or suspending
use of any Preliminary Prospectus. Each Preliminary Prospectus provided to
Underwriters for use in connection with the issuance and sale of the Securities
(i) contained all statements required to be stated therein in accordance with,
and complied in all material respects with the requirements of, the Act and the
rules and regulations of the Commission thereunder and (ii) did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. When the Registration Statement or any
amendment thereto was or is declared effective, it (i) contained or will contain
all statements required to be stated therein in accordance with, and complied or
will comply in all material respects with the requirements of, the Act and the
rules and regulations of the Commission thereunder and (ii) did not or will not
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading. When the
Prospectus or any Term Sheet that is a part thereof or any amendment or
supplement to the Prospectus is filed with the Commission pursuant to Rule
424(b) (or, if the Prospectus or part thereof or such amendment or supplement is
not required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective) and on the Firm Closing Date and any Option Closing Date
(both as hereinafter defined), the Prospectus, as amended or supplemented at any
such time, (i) contained or will contain all statements required to be stated
therein in accordance with, and complied or will comply in all material respects
with the requirements of, the Act and the rules and regulations of the
Commission thereunder and (ii) did not or will not include any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (b) do not
apply to statements or omissions made in any Preliminary Prospectus, the
Registration Statement or any amendment thereto or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(c) If the Company has elected to rely on Rule 462(b) and the Rule
462(b) Registration Statement has not been declared effective (i) the Company
has filed a Rule 462(b) Registration Statement in compliance with and that,
assuming compliance with Rule 462(b), is effective upon filing with the
Commission and has received confirmation of its receipt and (ii) the Company has
given irrevocable instructions for transmission of the applicable filing fee in
connection with the filing of the Rule 462(b) Registration Statement, in
compliance with Rule 111 promulgated under the Act or the Commission has
received payment of such filing fee.
(d) The Company and each of its subsidiaries (which are corporations)
have been duly organized and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation and
are duly qualified to transact business as foreign corporations and are in good
standing under the laws of all other jurisdictions where the ownership
3
<PAGE>
or leasing of their respective properties or the conduct of their respective
businesses requires such qualification, except where the failure to be so
qualified does not amount to a material liability or disability to the Company
and its subsidiaries, taken as a whole.
(e) The Company and each of its subsidiaries have full power
(corporate or other) to own or lease their respective properties and conduct
their respective businesses as described in the Registration Statement and the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus; and each of the Company and the Operating Partnership
has full power (corporate or other) to enter into this Agreement and to carry
out all the terms and provisions hereof to be carried out by it.
(f) The issued shares of capital stock of each of the Company's
subsidiaries (which are corporations) have been duly authorized and validly
issued, are fully paid and nonassessable and, except as otherwise set forth in
the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus, are owned beneficially by the Company free and clear of
any security interests, liens, encumbrances, equities or claims.
(g) The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of its
jurisdiction of organization and is duly qualified to transact business as a
foreign limited partnership and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure to be so
qualified does not amount to a material liability or disability to the Company
and its subsidiaries, taken as a whole. As of the Firm Closing Date, the
Company and the limited partners of the Operating Partnership will enter into an
Amended and Restated Agreement of Limited Partnership of the Operating
Partnership, substantially in the form of Exhibit 10.1 to the Registration
Statement, with such other nonmaterial changes and revisions as are acceptable
to the Representatives (the "Operating Partnership Agreement"), which agreement
will be in full force and effect as of the Firm Closing Date. All of the
partnership interests in the Operating Partnership (the "Units") to be issued in
connection with the Formation Transactions (as defined in the Registration
Statement and the Prospectus, or if the Prospectus is not in existence, the most
recent Preliminary Prospectus) have been duly authorized for issuance by the
Operating Partnership to the holders or prospective holders thereof, and, at the
Firm Closing Date, against the payment of consideration therefor in accordance
with the Operating Partnership Agreement, will be validly issued, fully paid and
owned in the amounts set forth on Schedule 2 hereto, and, in the case of the
Units to be issued to the Company, free and clear of any security interests,
liens, encumbrances, equities or claims. Immediately after the Firm Closing
Date, 2,692,374 Units will be issued and outstanding. The Units conform in all
material respects to the description thereof contained in the Prospectus or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus. The
Company is, and immediately after the Firm Closing Date will be, the sole
general partner of the Operating Partnership.
(h) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus. All of the issued shares of
capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable. The Firm Securities and the Option Securities
have been duly authorized and at the Firm Closing Date or the related Option
Closing Date (as the case may be), after payment therefor in accordance
herewith, will be validly issued, fully paid and nonassessable. No holders of
outstanding shares of capital stock of the Company are entitled as such to any
preemptive or other rights to subscribe for any of the Securities, and no
4
<PAGE>
holder of securities of the Company has any right which has not been fully
exercised or waived to require the Company to register the offer or sale of any
securities owned by such holder under the Act in the public offering
contemplated by this agreement.
(i) The capital stock of the Company conforms to the description
thereof contained in the Prospectus or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus.
(j) All of the issued and outstanding shares of capital stock of the
Company have been offered and sold in compliance with all applicable laws
(including, without limitation, federal and state securities laws). Except as
described in the Prospectus (or, if the Prospectus does not exist, the most
recent Preliminary Prospectus) and 50 shares of Common Stock issued to John B.
Kilroy, Sr. (which will be repurchased on the Closing Date), the Company has not
issued or sold any shares of its capital stock during the six-month period
preceding the initial filing date of the Registration Statement including any
sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act.
(k) Except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
outstanding (A) securities, equity interests or obligations of the Company or
any of its subsidiaries convertible into or exchangeable for any capital stock
or equity interests (as the case may be) of the Company or any such subsidiary,
(B) warrants, rights or options to subscribe for or purchase from the Company or
any such subsidiary any such capital stock or equity interests or any such
convertible or exchangeable securities, equity interests or obligations, or (C)
obligations of the Company or any such subsidiary to issue any shares of capital
stock, equity interests, any such convertible or exchangeable securities, equity
interests or obligations, or any such warrants, rights or options.
(l) The offer, issuance and exchange of the Units in connection with
the Formation Transactions were or will be exempt from the registration
requirements of the Act and applicable state securities and blue sky laws. The
Company and the Operating Partnership reasonably believe that all persons and
entities to whom such Units have been issued or will be issued on the Firm
Closing Date were or will be at the time of issuance "accredited investors" as
that term is defined in Rule 501(a) under the Act.
(m) The balance sheet of the Company (including the notes thereto)
included in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) fairly presents the
financial position of the Company at the date therein specified. The combined
financial statements (including the notes thereto) of the Kilroy Group (as
defined in the notes thereto) and schedule of the Kilroy Group included in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present the financial
position, the results of operations and cash flows and changes in financial
condition of the Kilroy Group, at the date and for the periods therein
specified. The combined historical summaries of certain revenues and certain
expenses (including the notes thereto) of the Acquisition Properties (as defined
in the notes thereto) included in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) fairly present the combined certain revenues and certain expenses of
the Acquisition Properties for the periods therein specified. All of the
foregoing financial statements (including the notes thereto) and schedules have
been prepared in accordance with generally accepted accounting principles
consistently applied for each of the periods presented.
5
<PAGE>
The selected financial data set forth under the caption "Selected Financial
Data" in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) fairly present, on the basis stated in the
Prospectus (or such Preliminary Prospectus), the information included therein.
(n) The pro forma consolidated financial statements (including the
notes thereto) of the Company included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) comply in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X of the Commission and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of such information and the assumptions used in the preparation
thereof are, in the opinion of the Company, reasonable. Other than the
historical and pro forma financial statements (and schedules) included therein,
no other historical or pro forma financial statements (or schedules) are
required to be included in the Registration Statement or Prospectus.
(o) Deloitte & Touche LLP, who have certified certain financial
statements and schedules, and delivered their reports with respect to the
audited financial statements and schedules, included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), are independent public accountants as
required by the Act and the applicable rules and regulations thereunder.
(p) The adjustments made to the Company's pro forma Funds from
Operations for the 12 months ending September 30, 1996 fairly reflect (A) the
net increase in contractual rental income for the 12 months ending January 31,
1998 (over actual rental revenue included in pro forma Funds from Operations for
the 12 months ended September 30, 1996); (B) the net increase in revenue from
new executed leases commencing after September 30, 1995 for the 12 months ending
January 31, 1998; (C) the net effect of lease expirations for leases which
expired between September 30, 1995 and September 30, 1996 and leases which will
expire between October 1, 1996 and January 31, 1998 for that portion of the 12-
month period ending January 31, 1998 that such leases are no longer in effect;
(D) the effect of adjusting straight-line rental income and expense from an
accrual basis under generally accepted accounting principles to a cash basis;
and (E) the estimated interest earned at 5% per annum on excess cash proceeds of
$20,444,000. The assumptions made by the Company disclosed in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), under the caption "Distribution Policy" are reasonable in light of
the expected and intended method of operation of the Company and the Operating
Partnership.
(q) The execution and delivery of this Agreement have been duly
authorized by the Company and the Operating Partnership and this Agreement has
been duly executed and delivered by the Company and the Operating Partnership,
and is the valid and binding agreement of each of the Company and the Operating
Partnership, enforceable against the Company and the Operating Partnership in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance, reorganization and similar laws relating to
creditors' rights generally and to the application of equitable principles in
any proceeding, whether at law or in equity.
(r) No legal or governmental proceedings are pending to which the
Company or any of its subsidiaries is a party or to which the property of the
Company or any of its subsidiaries is subject that are required to be described
in the Registration Statement or the
6
<PAGE>
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and are not described therein, and no such proceedings
have been threatened against the Company or any of its subsidiaries or with
respect to any of their respective properties; and no contract or other document
is required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that is not described
therein (or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) or filed as required.
(s) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company and the Operating Partnership with the other provisions of this
Agreement and the consummation of the other transactions herein contemplated do
not (i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained, such as may be required under state securities or blue sky laws and,
if the registration statement filed with respect to the Securities (as amended)
is not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the Act,
or (ii) conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
any of their respective properties are bound, or the charter documents or by-
laws or certificate of limited partnership or partnership agreement (as the case
may be) of the Company or any of its subsidiaries, or any statute or any
judgment, decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to the Company or any of its
subsidiaries.
(t) Each of the Company and its subsidiaries has full power (corporate
or other) to enter into and deliver (as applicable) the agreements set forth on
Schedule 3 hereto and all other agreements and other documents related to the
Formation Transactions (collectively, the "Transaction Documents") to which each
is party and to carry out all the terms and provisions thereof to be carried out
by each, respectively. The execution and delivery of the Transaction Documents
have been duly authorized by the Company and its subsidiaries (as applicable)
and the Transaction Documents have been or will be on the Firm Closing Date duly
executed and delivered by the Company and its subsidiaries (as applicable), and
each is the valid and binding agreement of the Company and its subsidiaries (as
applicable), enforceable against the Company and its subsidiaries (as
applicable) in accordance with its terms, subject to the effect of bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization and similar laws
relating to creditors' rights generally and to the application of equitable
principles in any proceeding, whether at law or in equity.
(u) The execution and delivery of the Transaction Documents, the
compliance by the Company and its subsidiaries (as applicable) with their
respective obligations under the Transaction Documents and the consummation of
the Formation Transactions do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained, such as may be required under
state securities or blue sky laws and, if the registration statement filed with
respect to the Securities (as amended) is not effective under the Act as of the
time of execution hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Act, or (ii) conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or any of their
7
<PAGE>
respective properties are bound, or the charter documents or by-laws or
certificate of limited partnership or partnership agreement (as the case may be)
of the Company or any of its subsidiaries, or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental authority
or any arbitrator applicable to the Company or any of its subsidiaries.
(v) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), neither the Company
nor any of its subsidiaries has sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding and there has not been any
material adverse change, or any development involving a prospective material
adverse change, in the condition (financial or otherwise), management, business
prospects, net worth, or results of operations of the Company and its
subsidiaries, taken as a whole, except in each case as described in or
contemplated by the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(w) The Company has not, directly or indirectly, (i) taken any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(x) The Company has not distributed and, prior to the later of (i) the
Closing Date and (ii) the completion of the distribution of the Securities, will
not distribute any offering material in connection with the offering and sale of
the Securities other than the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or other materials, if any, permitted by the Act.
(y) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), (1) the Company and
its subsidiaries have not incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction not in the ordinary
course of business; (2) the Company has not purchased any of its outstanding
capital stock (other than as contemplated by Section 2(j) hereof); and (3) there
has not been any material change in the capital stock or partnership interests
(as the case may be), short-term debt or long-term debt of the Company and its
consolidated subsidiaries, except in each case as described in or contemplated
by the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(z) Upon consummation of the Formation Transactions, the Company or
its subsidiaries will have good and marketable title in fee simple to all items
of real property comprising part of the Properties (as defined in the
Registration Statement and the Prospectus, or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) (except with respect to land
held pursuant to a ground lease or subject to an air space lease) and marketable
title to all personal property comprising part of the Properties, in each case
free and clear of any security interests, liens, encumbrances, equities, claims
and other defects, except such as do not materially
8
<PAGE>
and adversely affect the value of such property and do not interfere with the
use made or proposed to be made of such property by the Company or such
subsidiary, and any real property and buildings comprising part of the
Properties held pursuant to or subject to a ground lease, air space lease or
other lease will be held by the Company or any such subsidiary under or subject
to valid, subsisting and enforceable ground leases, air space leases or other
leases, with such exceptions as are not material and do not interfere with the
use made or proposed to be made of such property and buildings by the Company or
such subsidiary, in each case except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(aa) No labor dispute with the employees of the Company or any of its
subsidiaries exists or is threatened or, to the knowledge of the Company or any
of its subsidiaries, imminent that could result in a material adverse change in
the condition (financial or otherwise), business prospects, net worth or results
of operations of the Company and its subsidiaries, taken as a whole, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(bb) Upon consummation of the Formation Transactions, the Company and
its subsidiaries will own or possess, or will be able to acquire on reasonable
terms, all material patents, patent applications, trademarks, service marks,
trade names, licenses, copyrights and proprietary or other confidential
information currently employed or proposed to be employed by them in connection
with the business now operated or proposed to be operated by them as described
in the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and neither the Company nor any such subsidiary has
received any notice of infringement of or conflict with asserted rights of any
third party with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a material adverse change in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(cc) Upon consummation of the Formation Transactions, the Company and
each of its subsidiaries will own or possess all contract rights that are
material to the businesses now operated or proposed to be operated by them taken
as a whole as described in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), including all such contract
rights referred to in the Prospectus. All such contracts are in full force and
effect, and neither the Company nor any such subsidiary is aware of any material
breach by any party under any of such contracts.
(dd) As of the Firm Closing Date, the Company and each of its
subsidiaries will be insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary
in the businesses in which they are or will be engaged as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); and neither the Company nor any such subsidiary has any
reason to believe that it will not be able to renew such insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not
materially and adversely affect the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
9
<PAGE>
subsidiaries, taken as a whole, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(ee) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock or partnership interests, from
repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) and except pursuant to (i) existing
indebtedness as in effect on the date hereof, (ii) the Mortgage Loans (as
defined in the Registration Statement and the Prospectus, or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), (iii) the Credit
Facility (as defined in the Registration Statement and the Prospectus, or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus),
(iv) applicable law and (v) with respect to prohibitions only against
transferring any of such subsidiary's property or assets to the Company or any
other subsidiary of the Company, (A) customary non-assignment provisions
contained in leases to which the Company or any of its subsidiaries is a party
and (B) security interests, including purchase money obligations, applicable to
any property of the Company or any of its subsidiaries as of the date hereof.
(ff) The Company and its subsidiaries will possess as of the Firm
Closing Date all certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or
in the aggregate, if the subject of any unfavorable decision, ruling or finding,
would result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(gg) The Company is not, and as of the Firm Closing Date and the
Option Closing Date will not be, subject to registration as an investment
company under the Investment Company Act of 1940, as amended.
(hh) Each of the Company and its subsidiaries has filed all foreign,
federal, state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to file
would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(ii) Neither the Company nor any of its subsidiaries is in violation
of any applicable federal or state law or regulation relating to occupational
safety and health or to the storage, handling or transportation of hazardous or
toxic materials and the Company and its subsidiaries have received all permits,
licenses or other approvals required of them under applicable federal and state
occupational safety and health and environmental laws and regulations to conduct
their respective businesses or the businesses proposed to be conducted by them
as described in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary
10
<PAGE>
Prospectus), and the Company and each such subsidiary is in compliance with all
terms and conditions of any such permit, license or approval, except any such
violation of law or regulation, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals which would not, singly or in the aggregate,
result in a material adverse change in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(jj) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters on the Firm
Closing Date or on the Option Closing Date shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
(kk) Except for the shares of capital stock of, or partnership
interests in (as applicable), each of the subsidiaries owned by the Company and
such subsidiaries, neither the Company nor any such subsidiary owns any shares
of stock or any other equity securities of any corporation or has any equity
interest in any firm, partnership, association or other entity, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(ll) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or specific
authorizations; (2) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (3) access to assets is
permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(mm) No default exists, and no event has occurred which, with notice
or lapse of time or both, would constitute a default in the due performance and
observance of any term, covenant or condition of any indenture, mortgage, deed
of trust, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
or any of their respective properties is bound or may be affected in any
material adverse respect with regard to property, business or operations of the
Company and its subsidiaries taken as a whole.
(nn) All claims, suits or proceedings instituted by ACD2, a California
corporation, or its affiliates or by Hughes Aircraft Company or Hughes
Electronic Corporation's Space & Communications Company or its affiliates, in
each case against any member of the Kilroy Group (as defined in the Registration
Statement and the Prospectus, or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) either have been settled with prejudice or
dismissed pursuant to a final judgment with prejudice, the time for appeal
therefrom having expired.
(oo) Except as otherwise disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), since
January 1, 1990 no foreclosures have been instituted and none are currently
threatened with respect to any property or assets directly or indirectly owned
(whether now or in the past) by the Kilroy Group or the Company or any of its
11
<PAGE>
subsidiaries. Except for the Excluded Properties (as defined in the
Registration Statement and the Prospectus, or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and the properties set forth
on Schedule 4 hereto, no member of the Kilroy Group owns or operates any real
property other than the real properties comprising part of the Properties.
(pp) Except as otherwise described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), (i) no
proceeding or filing of a petition seeking relief under Title 11 of the United
States Code or any other federal, state or foreign bankruptcy, insolvency,
liquidation or similar law has been commenced or instituted (whether voluntary
or involuntary) by or with respect to any member of the Kilroy Group, (ii) no
member of the Kilroy Group has applied for or consented to the appointment of a
receiver, trustee, custodian, sequestrator or similar official for any such
persons or for a substantial part of any such persons' property or assets and
(iii) no member of the Kilroy Group has made a general assignment for the
benefit of its creditors.
(qq) No relationship, direct or indirect, exists between or among the
Company or the Operating Partnership on the one hand, and the directors,
officers, stockholders (in the case of the Company), limited partners (in the
case of the Operating Partnership), tenants, customers or suppliers of the
Company or the Operating Partnership on the other hand, which is required to be
described in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) which is not so described.
(rr) The transfer of interests or other assets pursuant to the
Transaction Documents does not violate the articles or certificate of
incorporation, by-laws, limited liability company operating agreement,
declaration of trust, certificate of limited partnership, partnership agreement
or other organizational documents, as the case may be, of any member of the
Kilroy Group. The agreements and instruments set forth on Schedule 6 hereto
(the "Transfer Documents") are sufficient to effect the transfer to the Company
or its subsidiaries of all direct or indirect interests in the Properties and
other assets specified therein upon payment of the consideration therefor.
Pursuant to the Transfer Documents, the Properties and other assets specified
therein will be transferred to the Company or its subsidiaries directly and not
by way of a transfer of interests in partnerships or other types of entities
which own the Properties and such other assets.
(ss) Commencing with the Firm Closing Date, after giving effect to the
Formation Transactions, the Company will be organized in conformity with the
requirements for qualification as a real estate investment trust (a "REIT")
under the Internal Revenue Code of 1986, as amended (the "Code"), and will have
no earnings and profits accumulated in a non-REIT year within the meaning of
Section 857(a)(3)(B) of the Code, and the proposed method of operation of the
Company and its subsidiaries will enable the Company to meet the requirements
for taxation as a REIT under the Code beginning with its taxable year ending
December 31, 1997 and for its subsequent taxable years. All statements in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) regarding the Company's qualification as a REIT are
true, complete and correct in all material respects.
(tt) (i) Each of the Properties (including, for purposes of this
paragraph, the Excluded Properties) complies with all applicable codes, laws,
ordinances and regulations (including, without limitation, building and zoning
codes and laws and regulations relating to access to the Properties) and deed
restrictions or other covenants, except for such failures to comply that
12
<PAGE>
would not materially impair the value of any of the Properties or would not
result in a forfeiture or reversion of title; (ii) neither the Company nor any
of its subsidiaries has knowledge of any pending or threatened litigation,
moratorium, condemnation proceedings, zoning change, or other similar proceeding
or action that could in any manner affect the size of, use of, improvements on,
construction on, access to or availability of utilities or other necessary
services to, the Properties, except such proceedings or actions which are not
reasonably expected to, singly or in the aggregate, result in a material adverse
change in the condition (financial or otherwise), business prospects, net worth
or results of operations of the Company and its subsidiaries, taken as a whole;
(iii) all liens, charges, encumbrances, claims, or restrictions on or affecting
the properties and assets (including the Properties) of the Company or any of
its subsidiaries that are required to be disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) are
disclosed therein; (iv) neither the Company, any of its subsidiaries nor any
tenant of any portion of any of the Properties is in default under any of the
ground leases or air space leases (as lessee), space leases (as lessor or
lessee, as the case may be) or other occupancy or license agreement relating to,
or under any of the mortgages or other security documents or other agreements
encumbering or otherwise recorded against, the Properties and there is no event
which, but for the passage of time or the giving of notice or both, would
constitute a default under any of such documents or agreements, except, with
respect to such leases and other occupancy or license agreements (other than
ground leases) and mortgages and ground and air space leases in connection with
the SeaTac Office Center Property, such defaults that have been, or will be as
of the Firm Closing Date, cured or waived and except such defaults that would
not, singly or in the aggregate, result in a material adverse change in the
condition (financial or otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, taken as a whole; and (v) except
as described in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) and except as otherwise provided by law,
upon consummation of the Formation Transactions, no tenant under any lease
pursuant to which the Company or any of its subsidiaries will lease the
Properties will have an option or right of first refusal to purchase the
premises leased thereunder or the building of which such premises are a part.
(uu) Each of the Properties (including, for purposes of this
paragraph, the Excluded Properties) is in substantial compliance with all
presently applicable provisions of the Americans with Disabilities Act and no
failure of the Company or any of the Subsidiaries to comply with all presently
applicable provisions of the Americans with Disabilities Act would result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole.
(vv) Except as otherwise disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), (i)
neither the Company, any of its subsidiaries nor, to the best knowledge of the
Company, any other owners of the Properties (including, for purposes of this
paragraph, the Excluded Properties) at any time or any other party has at any
time, handled, stored, treated, transported, manufactured, spilled, leaked, or
discharged, dumped, transferred or otherwise disposed of or dealt with,
Hazardous Materials (as hereinafter defined) on, to or from the Properties,
other than by any such action taken in compliance with all applicable
Environmental Statutes; (ii) neither the Company nor any of its subsidiaries
intends to use the Properties or any subsequently acquired properties for the
purpose of handling, storing, treating, transporting, manufacturing, spilling,
leaking, discharging, dumping, transferring or otherwise disposing of or dealing
with Hazardous Materials; (iii) neither the Company nor any of its subsidiaries
knows of any seepage, leak, discharge, release, emission, spill, or dumping of
Hazardous Materials into waters on or adjacent to the Properties or any other
real property owned
13
<PAGE>
or occupied by any such party, or onto lands from which Hazardous Materials
might seep, flow or drain into such waters; (iv) except as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), neither the Company nor any of its subsidiaries has
received any notice of, or has any knowledge of any occurrence or circumstance
which, with notice or passage of time or both, would give rise to a claim under
or pursuant to any federal, state or local environmental statute or regulation
or under common law, pertaining to Hazardous Materials on or originating from
any of the Properties or any assets described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) or any
other real property owned or occupied by any such party or arising out of the
conduct of any such party, including without limitation a claim under or
pursuant to any Environmental Statute (hereinafter defined); (v) neither the
Properties nor any other real properties owned by members of the Kilroy Group is
included or, to the best of the Company's knowledge, proposed for inclusion on
the National Priorities List issued pursuant to CERCLA (as hereinafter defined)
by the United States Environmental Protection Agency (the "EPA") or, to the best
of the Company's knowledge, proposed for inclusion on any similar list or
inventory issued pursuant to any other Environmental Statute or issued by any
other Governmental Authority (as hereinafter defined).
As used herein, "Hazardous Material" shall include, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, toxic substances, or related materials, asbestos or
any hazardous materials as defined by any federal, state or local environmental
law, ordinance, rule or regulation including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended, 42 U.S.C. (S)(S) 9601-9675 ("CERCLA"), the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. (S)(S) 1801-1819, the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. (S)(S) 6901-6992K, the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
(S)(S)11001-11050, the Toxic Substances Control Act, 15 U.S.C. (S)(S) 2601-2671,
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. (S)(S) 136-
136y, the Clean Air Act, 42 U.S.C. (S)(S) 7401-7642, the Clean Water Act
(Federal Water Pollution Control Act), 33 U.S.C. (S)(S) 1251-1387, the Safe
Drinking Water Act, 42 U.S.C. (S)(S) 300f-300j-26, and the Occupational Safety
and Health Act, 29 U.S.C. (S)(S) 651-678, as any of the above statutes may be
amended from time to time, and in the regulations promulgated pursuant to each
of the foregoing (individually, an "Environmental Statute") or by any federal,
state or local governmental authority having or claiming jurisdiction over the
properties and assets described in the Prospectus (a "Governmental Authority").
(ww) None of the environmental consultants which prepared
environmental and asbestos inspection reports with respect to any of the
Properties (including, for purposes of this paragraph, the Excluded Properties),
the engineering consultants which prepared engineering inspection reports with
respect to any of the Properties or Robert Charles Lesser & Co., real estate
advisors, which prepared a regional economic overview and market analysis for
Kilroy Industries dated January 2, 1997, were employed for such purpose on a
contingent basis or has any substantial interest in the Company or any of its
subsidiaries and none of them or any of their directors, officers or employees
is connected with the Company or any of its subsidiaries as a promoter, selling
agent, voting trustee, director, officer or employee.
(xx) Except as set forth in the environmental and engineering
inspection reports prepared with respect to the Properties (including, for
purposes of this paragraph, the Excluded Properties), neither the Company nor
the Operating Partnership is aware of any environmental or engineering condition
at any of the Properties that would result in a material adverse change in the
14
<PAGE>
condition (financial or otherwise) or business prospects, net worth or results
of operations of the Company and its subsidiaries, taken as a whole.
(yy) No real estate transfer or similar taxes are or will become due
and payable by the Company or any of its subsidiaries as a result of the
acquisition by the Company or any of its subsidiaries of any direct or indirect
interest in any Property in connection with the Formation Transactions, other
than customary documentary transfer taxes which will be paid in full on or prior
to the Firm Closing Date.
(zz) At the Firm Closing Date, the Company or its subsidiaries will
have obtained title insurance on each of the Properties which constitute real
property (including ground leasehold estates) in an amount at least equal to
$240,000,000 and with a tie-in endorsement attached to each owner policy and
without coinsurance provisions.
(aaa) At or prior to the Firm Closing Date, each of the transactions
constituting the Formation Transactions will have occurred in the manner
described in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), except for those transactions contemplated in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) to occur subsequent to the Firm Closing Date.
(bbb) All of the representations and warranties of the Company, the
Operating Partnership, the Kilroy Group and the Continuing Investors (as defined
in the Registration Statement and the Prospectus, or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) contained in the
Transaction Documents are true and correct in all material respects.
Each reference in this Section 2 to "the condition (financial or
otherwise), management, business prospects, net worth, or results of operations
of the Company and its subsidiaries, taken as a whole" means the condition
(financial or otherwise), management, business prospects, net worth, or results
of operations of the Company and its subsidiaries, taken as a whole, upon
consummation of the Formation Transactions.
3. Purchase, Sale and Delivery of the Securities. (a) On the basis of
---------------------------------------------
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company, at a purchase
price of $________ per share, the number of Firm Securities set forth opposite
the name of such Underwriter in Schedule 1 hereto. One or more certificates in
definitive form for the Firm Securities that the several Underwriters have
agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as the Representatives request upon notice to
the Company at least 48 hours prior to the Firm Closing Date, shall be delivered
by or on behalf of the Company to the Representatives for the respective
accounts of the Underwriters, against payment by or on behalf of the
Underwriters of the purchase price therefor by wire transfer in same-day funds
(the "Wired Funds") to the account of the Company. Such delivery of and payment
for the Firm Securities shall be made at the offices of Latham & Watkins, 633
West 5th Street, Suite 4000, Los Angeles, California 90071 at 6:30 A.M., local
time, on __________, 1997, or at such other place, time or date as the
Representatives and the Company may agree upon or as the Representatives may
determine pursuant to Section 9 hereof, such time and date of delivery against
payment being herein referred to as the "Firm Closing Date". The Company will
make such certificate or certificates for the Firm Securities available for
checking and
15
<PAGE>
packaging by the Representatives at the offices in New York, New York of the
Company's transfer agent or registrar or of Prudential Securities Incorporated
at least 24 hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in connection with
the distribution and sale of the Firm Securities as contemplated by the
Prospectus, the Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, the Option Securities. The purchase price
to be paid for any Option Securities shall be the same price per share as the
price per share for the Firm Securities set forth above in paragraph (a) of this
Section 3, plus, if the purchase and sale of any Option Securities takes place
after the Firm Closing Date and after the Firm Securities are trading "ex-
dividend", an amount equal to the dividends payable on such Option Securities.
The option granted hereby may be exercised as to all or any part of the Option
Securities from time to time within thirty days after the date of the Prospectus
(or, if such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for trading).
The Underwriters shall not be under any obligation to purchase any of the Option
Securities prior to the exercise of such option. The Representatives may from
time to time exercise the option granted hereby by giving notice in writing or
by telephone (confirmed in writing) to the Company setting forth the aggregate
number of Option Securities as to which the several Underwriters are then
exercising the option and the date and time for delivery of and payment for such
Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
five business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and Company
may agree upon or as the Representatives may determine pursuant to Section 9
hereof, is herein called the "Option Closing Date" with respect to such Option
Securities. Upon exercise of the option as provided herein, the Company shall
become obligated to sell to each of the several Underwriters, and, subject to
the terms and conditions herein set forth, each of the Underwriters (severally
and not jointly) shall become obligated to purchase from the Company, the same
percentage of the total number of the Option Securities as to which the several
Underwriters are then exercising the option as such Underwriter is obligated to
purchase of the aggregate number of Firm Securities, as adjusted by the
Representatives in such manner as they deem advisable to avoid fractional
shares. If the option is exercised as to all or any portion of the Option
Securities, one or more certificates in definitive form for such Option
Securities, and payment therefor, shall be delivered on the related Option
Closing Date in the manner, and upon the terms and conditions, set forth in
paragraph (a) of this Section 3, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) The Company hereby acknowledges that the wire transfer by or on
behalf of the Underwriters of the purchase price for any Securities does not
constitute closing of a purchase and sale of the Securities. Only execution and
delivery of a receipt for Securities by the Underwriters indicates completion of
the closing of a purchase of the Securities from the Company. Furthermore, in
the event that the Underwriters wire funds to the Company prior to the
completion of the closing of a purchase of Securities, the Company hereby
acknowledges that until the Underwriters execute and deliver a receipt for the
Securities, by facsimile or otherwise, the Company will not be entitled to the
Wired Funds and shall return the Wired Funds to the Underwriters as soon as
practicable (by wire transfer of same-day funds) upon demand. In the event that
the closing of a purchase of Securities is not completed and the Wire Funds are
not
16
<PAGE>
returned by the Company to the Underwriters on the same day the Wired Funds were
received by the Company, the Company agrees to pay to the Underwriters in
respect of each day the Wire Funds are not returned by it, in same-day funds,
interest on the amount of such Wire Funds in an amount representing the
Underwriters' cost of financing as reasonably determined by Prudential
Securities Incorporated.
(d) It is understood that any of you, individually and not as one of
the Representatives, may (but shall not be obligated to) make payment on behalf
of any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such
Underwriter or Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. Upon your authorization of the release
----------------------------
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. Covenants of the Company. Each of the Company and the Operating
------------------------
Partnership covenants and agrees with each of the Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto to become effective as promptly as possible. If required,
the Company will file the Prospectus or any Term Sheet that constitutes a part
thereof and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rules 434 and 424(b) under the
Act. During any time when a prospectus relating to the Securities is required
to be delivered under the Act, the Company (i) will comply with all requirements
imposed upon it by the Act and the rules and regulations of the Commission
thereunder to the extent necessary to permit the continuance of sales of or
dealings in the Securities in accordance with the provisions hereof and of the
Prospectus, as then amended or supplemented, and (ii) will not file with the
Commission the Prospectus, Term Sheet or the amendment referred to in the second
sentence of Section 2(a) hereof, any amendment or supplement to such Prospectus,
Term Sheet or any amendment to the Registration Statement or any Rule 462(b)
Registration Statement of which the Representatives shall not previously have
been advised and furnished with a copy for a reasonable period of time prior to
the proposed filing and as to which filing the Representatives shall not have
given their consent. The Company will prepare and file with the Commission, in
accordance with the rules and regulations of the Commission, promptly upon
request by the Representatives or counsel for the Underwriters, any amendments
to the Registration Statement or amendments or supplements to the Prospectus
that may be necessary or advisable in connection with the distribution of the
Securities by the several Underwriters, and will use its best efforts to cause
any such amendment to the Registration Statement to be declared effective by the
Commission as promptly as possible. The Company will advise the Representatives,
promptly after receiving notice thereof, of the time when the Registration
Statement or any amendment thereto has been filed or declared effective or the
Prospectus or any amendment or supplement thereto has been filed and will
provide evidence satisfactory to the Representatives of each such filing or
effectiveness.
(b) The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement or any
amendment thereto or any order preventing or suspending the use of any
17
<PAGE>
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
(ii) the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, (iii) the institution, threatening or contemplation of any
proceeding for any such purpose or (iv) any request made by the Commission for
amending the Original Registration Statement or any Rule 462(b) Registration
Statement, for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will arrange for the qualification of the Securities
for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities, provided, however, that in connection therewith
-----------------
the Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (i) the final date when a
prospectus relating to the Securities is required to be delivered under the Act
or (ii) the Option Closing Date, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if for any other reason it is necessary at any time to
amend or supplement the Prospectus to comply with the Act or the rules or
regulations of the Commission thereunder, the Company will promptly notify the
Representatives thereof and, subject to Section 5(a) hereof, will prepare and
file with the Commission, at the Company's expense, an amendment to the
Registration Statement or an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the
Representatives and to counsel for the Underwriters a conformed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) or any Rule 462(b)
Registration Statement, certified by the Secretary or an Assistant Secretary of
the Company to be true and complete copies thereof as filed with the Commission
by electronic transmission, (ii) to each other Underwriter, a conformed copy of
such registration statement or any Rule 462(b) Registration Statement and each
amendment thereto (in each case without exhibits thereto) and (iii) so long as a
prospectus relating to the Securities is required to be delivered under the Act,
as many copies of each Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto as the Representatives may reasonably request; without
limiting the application of clause (iii) of this sentence, the Company, not
later than (A) 6:00 P.M., New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior to 10:00
A.M., New York City time, on such date or (B) 2:00 P.M., New York City time, on
the business day following the date of determination of the public offering
price, if such determination occurred after 10:00 A.M., New York City time, on
such date, will deliver to the Underwriters, without charge, as many copies of
the Prospectus and any amendment or supplement thereto as the Representatives
may reasonably request for purposes of confirming orders that are expected to
settle on the Firm Closing Date. The Company will provide or cause to be
provided to each of the Representatives, and to each Underwriter that so
requests in writing, a copy of each report on Form SR filed by the Company as
required by Rule 463 under the Act.
18
<PAGE>
(f) The Company, as soon as practicable, will make generally available
to its securityholders and to the Representatives a consolidated earnings
statement of the Company and its subsidiaries that satisfies the provisions of
Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the prior
written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise sell or dispose (or announce any offer, sale,
offer of sale, contract of sale, pledge, grant of any option to purchase or
other sale or disposition) of any shares of Common Stock or other capital stock
of the Company or Units or other partnership interests of the Operating
Partnership, or any securities convertible into, or exchangeable or exercisable
for, shares of Common Stock or other capital stock of the Company or Units or
other partnership interests of the Operating Partnership, for a period of 180
days after the date hereof, except (i) pursuant to this Agreement, (ii) pursuant
to a dividend reinvestment plan of the Company, (iii) pursuant to the Company's
1997 Stock Incentive Plan, and (iv) in connection with the acquisition by the
Company or the Operating Partnership of real property or interests in entities
holding real property, provided that the recipient or transferee of such
--------
securities or interests agrees in a writing satisfactory to Prudential
Securities Incorporated, on behalf of the Underwriters, to be subject to the
lock-up contained in this Section 5(h) for a period ending on the date that is
180 days after the date hereof.
(i) The Company will not, directly or indirectly, (i) take any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(j) The Company will obtain the agreements described in Section 7(f)
hereof prior to the Firm Closing Date.
(k) If at any time during the 25-day period after the Registration
Statement becomes effective or the period prior to the Option Closing Date, any
rumor, publication or event relating to or affecting the Company shall occur as
a result of which in your opinion the market price of the Common Stock has been
or is likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Prospectus), subject to the Company's policy on issuing public statements, the
Company will, after notice from you advising the Company to the effect set forth
above, forthwith prepare, consult with you concerning the substance of, and
disseminate a press release or other public statement, reasonably satisfactory
to you, responding to or commenting on such rumor, publication or event.
(l) If the Company elects to rely on Rule 462(b), the Company shall
both file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) and pay the applicable fees in accordance with Rule 111
promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on the
date of this Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
19
<PAGE>
(m) The Company will cause the Securities to be duly authorized for
listing by the New York Stock Exchange prior to the Firm Closing Date, subject
to official notice of issuance.
(n) The Company will use its best efforts to meet the requirements to
qualify, commencing with the taxable year ending December 31, 1997, as a REIT
under the Code.
(o) The Company will cause the Operating Partnership to operate as a
limited partnership in accordance with the requirements of Delaware law.
6. Expenses. The Company will pay all costs and expenses incident to the
--------
performance of its and the Operating Partnership's obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 11 hereof, including all
costs and expenses incident to (i) the printing or other production of documents
with respect to the transactions, including any costs of printing the
registration statement originally filed with respect to the Securities and any
amendment thereto, any Rule 462(b) Registration Statement, any Preliminary
Prospectus and the Prospectus and any amendment or supplement thereto, this
Agreement and any blue sky memoranda, (ii) all arrangements relating to the
delivery to the Underwriters of copies of the foregoing documents, (iii) the
fees and disbursements of the counsel, the accountants and any other experts or
advisors retained by the Company, (iv) preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Securities, including transfer
agent's and registrar's fees, (v) the qualification of the Securities under
state securities and blue sky laws, including filing fees and fees and
disbursements of counsel for the Underwriters relating thereto, (vi) the filing
fees of the Commission and the National Association of Securities Dealers, Inc.
relating to the Securities, (vii) any listing of the Securities on the New York
Stock Exchange, (viii) any meetings with prospective investors in the Securities
(other than as shall have been specifically approved by the Representatives to
be paid for by the Underwriters) and (ix) advertising relating to the offering
of the Securities (other than as shall have been specifically approved by the
Representatives to be paid for by the Underwriters). If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
because this Agreement is terminated pursuant to Section 11 hereof or because of
any failure, refusal or inability on the part of the Company or the Operating
Partnership to perform all obligations and satisfy all conditions on its part to
be performed or satisfied hereunder other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable counsel fees and
disbursements) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities. The Company shall not in any
event be liable to any of the Underwriters for the loss of anticipated profits
from the transactions covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations of the
-------------------------------------------
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company and the Operating Partnership
contained herein as of the date hereof and as of the Firm Closing Date, as if
made on and as of the Firm Closing Date, to the accuracy of the statements of
the Company's officers made pursuant to the provisions hereof, to the
performance by the Company and the Operating Partnership of their respective
covenants and agreements hereunder and to the following additional conditions:
20
<PAGE>
(a) If the Original Registration Statement or any amendment thereto
filed prior to the Firm Closing Date has not been declared effective as of the
time of execution hereof, the Original Registration Statement or such amendment
and, if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have been declared effective not later than the
earlier of (i) 11:00 A.M., New York time, on the date on which the amendment to
the registration statement originally filed with respect to the Securities or to
the Registration Statement, as the case may be, containing information regarding
the initial public offering price of the Securities has been filed with the
Commission and (ii) the time confirmations are sent or given as specified by
Rule 462(b)(2), or with respect to the Original Registration Statement, or such
later time and date as shall have been consented to by the Representatives; if
required, the Prospectus or any Term Sheet that constitutes a part thereof and
any amendment or supplement thereto shall have been filed with the Commission in
the manner and within the time period required by Rules 434 and 424(b) under the
Act; no stop order suspending the effectiveness of the Registration Statement or
any amendment thereto shall have been issued, and no proceedings for that
purpose shall have been instituted or threatened or, to the knowledge of the
Company or the Representatives, shall be contemplated by the Commission; and the
Company shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise).
(b) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Latham & Watkins, counsel for the Company and its subsidiaries,
to the effect that:
(i) the Company and Kilroy Services, Inc. (the "Services
Company") have been duly incorporated and are validly existing as
corporations in good standing under the laws of the State of Maryland and
are duly qualified to transact business as foreign corporations and are in
good standing under the laws of the States of California and Delaware, and
based solely on certificates from public officials, we confirm that each of
the Company and the Services Company is duly qualified to transact business
as foreign corporations and in good standing under the laws of the States
of Arizona and Washington. The Operating Partnership has been duly
organized and is validly existing as a limited partnership in good standing
under the laws of the State of Delaware and is duly qualified to transact
business as a foreign limited partnership and is in good standing under the
laws of the State of California, and based solely on certificates from
public officials, we confirm that the Operating Partnership is duly
qualified to transact business in the States of Arizona and Washington;
[ALSO, TO COVER ANY OTHER SUBSIDIARIES TO BE FORMED BEFORE CLOSING]
(ii) the Company and each of the Subsidiaries have corporate or
partnership power (as the case may be) to own or lease their respective
properties and conduct their respective businesses as described in the
Registration Statement and the Prospectus, and each of the Company and the
Operating Partnership has corporate or partnership power (as the case may
be) to enter into this Agreement and to carry out all the terms and
provisions hereof to be carried out by it;
(iii) the issued shares of capital stock of the Services Company
have been duly authorized and validly issued, are fully paid and
nonassessable and, except as otherwise set forth in the Prospectus, to the
best knowledge of such counsel, are owned beneficially by the Company free
and clear of any perfected
21
<PAGE>
security interests or any other security interests, liens, encumbrances,
equities or claims;
(iv) the authorized, issued and outstanding capital stock of the
Company is as set forth under the caption "Capitalization" in the
Prospectus; all necessary and proper corporate proceedings have been taken
in order to authorize validly the Common Stock referred to therein; all
outstanding shares of Common Stock (including the Firm Securities, when
issued and paid for by the Underwriters in accordance with the terms of
this Agreement) have been (or, in the case of the Firm Securities, will be)
duly and validly issued, are fully paid and nonassessable, have been issued
in compliance with the registration requirements of federal and state
securities laws (or pursuant to an exemption therefrom), were not, to the
knowledge of such counsel, issued in violation of or subject to, under the
Company's charter or Maryland law or any agreement to which the Company is
a party and which is known to such counsel, any preemptive rights or other
rights to subscribe for or purchase any securities, and conform to the
description thereof contained in the Prospectus; to the knowledge of such
counsel, no holders of outstanding shares of capital stock of the Company
are entitled under the Company's charter or Maryland law or any agreement
to which the Company is a party and which is known to such counsel, as
such, to any preemptive or other rights to subscribe for any of the Firm
Securities; and no holders of securities of the Company are entitled to
have such securities registered under the Registration Statement;
(v) the Units issued in connection with the Formation
Transactions, including, without limitation, the Units issued to the
Company, were duly authorized for issuance by the Operating Partnership to
the holders thereof. The Units issued to the Company, upon contribution of
cash in the amount specified in the Operating Partnership Agreement, will
be validly issued. The Units issued to the Continuing Investors in
connection with the Formation Transactions, upon delivery of the
consideration specified in the Omnibus Option Agreement (identified on
Schedule 3 hereto), will be validly issued. The issuance of the Units to
the Continuing Investors at or prior to the Firm Closing Date as
contemplated in the Omnibus Option Agreement is or was (as the case may be)
exempt from registration under the Act. The terms of the Units conform in
all material respects to the description thereof and all statements related
thereto contained in the Prospectus. The issuances of securities described
in Items 31 and 32 of the Registration Statement were not at the time of
issue, and are not as of the Delivery Date, required to be registered under
the Act;
(vi) the Formation Transactions did not constitute a "roll-up
transaction" under Item 901(c) of Regulation S-K of the federal securities
laws ("Regulation S-K") since they fall within Item 901(c)(2)(ii) of
Regulation S-K;
(vii) except as disclosed in the Registration Statement and the
Prospectus, to the best knowledge of such counsel there are no outstanding
(A) securities, equity interests or obligations of the Company or any of
its subsidiaries convertible into or exchangeable for any capital stock or
equity interests (as the case may be) of the Company or any such
subsidiary, (B) warrants, rights or options to subscribe for or purchase
from the Company to any such subsidiary
22
<PAGE>
any such capital stock or equity interests or any such convertible or
exchangeable securities, equity interests or obligations, or (C)
obligations of the Company or any such subsidiary to issue any shares of
capital stock, equity interests, any such convertible or exchangeable
securities, equity interests or obligations, or any such warrants, rights
or options;
(vi) the statements set forth under the headings "Description of
Capital Stock", "Formation and Structure of the Company", "Certain
Relationships and Transactions", "Certain Provisions of Maryland Law and of
the Company's Articles of Incorporation and Bylaws", "Partnership Agreement
of the Operating Partnership", "Shares Available for Future Sale", "Federal
Income Tax Considerations" and "ERISA Considerations" in the Prospectus,
insofar as such statements describe statutes, rules or regulations, legal
conclusions with respect to their application or provisions of the
organizational documents of the Company, the Operating Partnership or the
Services Company, have been reviewed by such counsel, are correct in all
material respects and present fairly the information required to be
disclosed therein;
(ix) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate or partnership (as the case may be)
action of the Company and the Operating Partnership, and this Agreement has
been duly executed and delivered by the Company and the Operating
Partnership, and is the valid and binding agreement of each of the Company
and the Operating Partnership, enforceable against the Company and the
Operating Partnership in accordance with its terms, subject to the effect
of bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating to creditors' rights generally and
to the application of equitable principles in any proceeding, whether at
law or in equity;
(x) to the best knowledge of such counsel, (A) no legal or
governmental proceedings are pending to which the Company or any of the
Subsidiaries is a party or to which the property of the Company or any of
the Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not described therein, and
no such proceedings have been threatened against the Company or any of the
Subsidiaries or with respect to any of their respective properties and (B)
no contract or other document is required to be disclosed in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that is not disclosed therein or filed as
required;
(xi) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by
the Company and the Operating Partnership with the other provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not (A) require the consent, approval, authorization,
registration or qualification of or with any federal, or California, New
York or Maryland governmental authority, except such as have been obtained
under the Act and such as may be required under state securities or blue
sky laws, or (B) conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
the Company or any
23
<PAGE>
of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their respective properties are bound identified by
an officer of the Company as material to the Company or any of the
Subsidiaries (the "Material Agreements"), or the charter documents or by-
laws or certificate of limited partnership or partnership agreement (as the
case may be) of the Company or any of the Subsidiaries, or any provision of
any California, New York or Maryland statute, rule or regulation (other
than federal or state securities laws, which are addressed elsewhere
herein), or court orders specifically directed to the Company and
identified by an officer of the Company as material to the Company or any
of the Subsidiaries (the "Court Orders");
(xii) each of the Company and its Subsidiaries has the corporate
or partnership power (as the case may be) to enter into and deliver (as
applicable) the agreements and instruments set forth on Schedule 5 hereto
(the "Operative Documents") to which it is party and to carry out all the
terms and provisions thereof to be carried out by it. The execution and
delivery of the Operative Documents have been duly authorized by the
Company and the Subsidiaries (as applicable) and the Operative Documents
have been or will be on the Firm Closing Date duly executed and delivered
by the Company and the Subsidiaries (as applicable), and each is the valid
and binding agreement of the Company and the Subsidiaries (as applicable),
enforceable against the Company and the Subsidiaries (as applicable) in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance, reorganization and similar laws relating
to creditors' rights generally and to the application of equitable
principles in any proceeding, whether at law or in equity;
(xiii) the execution and delivery of the Operative Documents, the
compliance by the Company and the Subsidiaries (as applicable) with their
respective obligations under the Operative Documents and the consummation
of the Formation Transactions do not (A) require the consent, approval,
authorization, registration or qualification of or with any federal,
California, New York or Maryland governmental authority, except such as
have been obtained under the Act, such as may be required under state
securities or blue sky laws and, if the registration statement filed with
respect to the Securities (as amended) is not effective under the Act as of
the time of execution hereof, such as may be required (and shall be
obtained as provided in this Agreement) under the Act, or (B) conflict
with or result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any Material Agreement, or the charter
documents or by-laws or certificate of limited partnership or partnership
agreement (as the case may be) of the Company or any of the Subsidiaries,
or any provision of any California, New York or Maryland statute, rule or
regulation (other than federal or state securities laws, which are
addressed elsewhere herein), or any Court Order;
(xiv) all of the Collateral (as defined in the Pledge Agreement
listed on Schedule 5 hereto) has been duly and validly pledged with the
Company, as agent for the pledgees under the Pledge Agreement, in
accordance with law, and the Company, as agent for the pledgees under the
Pledge Agreement, has a valid and enforceable security interest in all of
the Collateral under the Uniform Commercial
24
<PAGE>
Code of California, ranking prior to and free and clear of the interests,
claims and rights of others;
(xv) the Company is not, and after giving effect to the Formation
Transactions and the other transactions contemplated by this Agreement will
not be, subject to registration as an investment company under the
Investment Company Act of 1940, as amended;
(xvi) the transfer of interests or other assets pursuant to the
agreements and instruments set forth on Schedule 6 hereto (the "Transfer
Documents") does not violate the articles or certificate of incorporation,
by-laws, limited liability company agreement, declaration of trust,
certificate of limited partnership, partnership agreement or other
organizational documents, as the case may be, of any member of the Kilroy
Group. The Transfer Documents are sufficient to effect the transfer to the
Company or the Subsidiaries of all direct or indirect interests in the
Properties and other assets specified therein upon payment of the
consideration therefor;
(xvii) the Registration Statement is effective under the Act; any
required filing of the Prospectus, or any Term Sheet that constitutes a
part thereof, pursuant to Rules 424(b) and 434 has been made in the manner
and within the time period required thereby; and based upon such counsel's
due inquiry made to the Office of the Secretary of the Commission, no stop
order suspending the effectiveness of the Registration Statement or any
amendment thereto has been issued, and no proceedings for that purpose have
been instituted or threatened or, to the best knowledge of such counsel,
are contemplated by the Commission;
(xviii) the Registration Statement originally filed with respect
to the Securities and each amendment thereto, any Rule 462(b) Registration
Statement and the Prospectus (in each case, other than the financial
statements, schedules and other financial and statistical data contained
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements of the Act
and the rules and regulations of the Commission thereunder;
(xix) if the Company elects to rely on Rule 434, the Prospectus
is not "materially different", as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time of its
effectiveness or an effective post-effective amendment thereto (including
such information that is permitted to be omitted pursuant to Rule 430A);
and
(xx) upon completion of the Formation Transactions, the Company
will be organized in conformity with the requirements for qualification as
a real estate investment trust under the Code, and the proposed method of
operation of the Company and the Operating Partnership as described in the
Registration Statement and the Prospectus and a certificate of a
responsible officer of the Company will enable the Company to meet the
requirements for taxation as a real estate investment trust under the Code
beginning with the year ended December 31, 1997.
25
<PAGE>
Such counsel shall also state that they have no reason to believe that the
Registration Statement, as of its effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or the date of such opinion, included or includes any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood
that such counsel need express no belief with respect to the financial
statements, schedules and other financial and statistical data included in the
Registration Statement or the Prospectus.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
application of laws of any jurisdiction other than the State of California, the
State of New York, the Delaware General Corporation Law and the Delaware Revised
Limited Partnership Act or the United States, to the extent satisfactory in form
and scope to counsel for the Underwriters, upon the opinions of Ballard Spahr
Andrews & Ingersoll, Baltimore, Maryland, and as to matters involving the
application of community property law of the State of California, to the extent
satisfactory in form and scope to counsel for the Underwriters, upon the opinion
of Rosenfeld, Meyer & Susman, LLP. The foregoing opinion shall also state that
the Underwriters are justified in relying upon such opinions of Ballard Spahr
Andrews & Ingersoll and Rosenfeld, Meyer & Susman, LLP, and copies of such
opinions shall be delivered to the Representatives and counsel for the
Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(b)(1) The Representatives shall have received opinions, dated the
Firm Closing Date, of Rosenfeld, Meyer & Susman, LLP, restating the opinions of
such firm dated November 1, 1996 and previously delivered to Prudential
Securities Incorporated, with respect to certain community property law issues.
(c) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Kaye, Scholer, Fierman, Hays & Handler, LLP, counsel for the
Underwriters, with respect to the issuance and sale of the Firm Securities, the
Registration Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Representatives shall have received from Deloitte & Touche LLP
a letter or letters dated, respectively, the date hereof and the Firm Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent accountants with respect to the Company
and its consolidated subsidiaries and the Kilroy Group and the Acquisition
Properties within the meaning of the Act and the applicable rules and
regulations thereunder;
(ii) in their opinion, the audited consolidated financial
statements and schedules and pro forma financial statements examined by
them and included in the Registration Statement and the Prospectus comply
in form in all material respects
26
<PAGE>
with the applicable accounting requirements of the Act and the related
published rules and regulations;
(iii) on the basis of a reading of the latest available interim
unaudited consolidated condensed financial statements of the Kilroy Group
and the Acquisition Properties, carrying out certain specified procedures
(which do not constitute an examination made in accordance with generally
accepted auditing standards) that would not necessarily reveal matters of
significance with respect to the comments set forth in this paragraph
(iii), a reading of the minute books of the stockholders, the board of
directors and any committees thereof of the members of the Kilroy Group and
inquiries of certain officials of the Kilroy Group who have responsibility
for financial and accounting matters, nothing came to their attention that
caused them to believe that:
(A) at a specific date (not more than five business days
prior to the date of such letter), there were any increases in debt or
accumulated deficit of the Kilroy Group or any decreases in total assets of
the Kilroy Group, in each case as compared with amounts shown in the
September 30, 1996 combined balance sheet included in the Registration
Statement and the Prospectus, or for the period from October 1, 1996 to
__________, 199 , there were any decreases, as compared with the
corresponding period of the previous year, in rental income, total revenues
or net income (as applicable) of the Kilroy Group and the Acquisition
Properties, except in all instances for changes, increases or decreases
which the Registration Statement and the Prospectus disclose have occurred
or may occur; and
(B) at a specific date (not more than five business days
prior to the date of such letter), with respect to the Kilroy Group, there
were any increases in borrowings as compared with amounts shown in the
September 30, 1996 balance sheet included in the Registration Statement and
the Prospectus, except in all instances for changes or increases which the
Registration Statement and the Prospectus disclose have occurred or may
occur.
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information identified by the Representatives that are derived
from the general accounting records of the Company and its consolidated
subsidiaries and are included in the Registration Statement and the
Prospectus and have compared such amounts, percentages and financial
information with such records of the Company and its consolidated
subsidiaries and with information derived from such records and have found
them to be in agreement, excluding any questions of legal interpretation;
and
(v) on the basis of a reading of the unaudited pro forma
condensed consolidated financial statements included in the Registration
Statement and the Prospectus, carrying out certain specified procedures
that would not necessarily reveal matters of significance with respect to
the comments set forth in this paragraph (v), inquiries of certain
officials of the Company and its consolidated subsidiaries who have
responsibility for financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma adjustments to
27
<PAGE>
the historical amounts in the unaudited pro forma condensed consolidated
financial statements, nothing came to their attention that caused them to
believe that the unaudited pro forma condensed consolidated financial
statements do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
In the event that the letters referred to above set forth any such changes,
decreases or increases, it shall be a further condition to the obligations of
the Underwriters that (A) such letters shall be accompanied by a written
explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (d) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(e) The Representatives shall have received a certificate, dated the
Firm Closing Date, of the chief executive officer and the principal financial or
accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company and the
Operating Partnership in this Agreement are true and correct as if made on
and as of the Firm Closing Date; the Registration Statement, as amended as
of the Firm Closing Date, does not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading, and the Prospectus, as amended or
supplemented as of the Firm Closing Date, does not include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each of the Company and the
Operating Partnership has performed all covenants and agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to the
best of the Company's or the Operating Partnership's knowledge, are
contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, neither the
Company nor any of its subsidiaries has sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding, and there has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or otherwise), management, business prospects, net
worth or results of
28
<PAGE>
operations of the Company and its subsidiaries, taken as a whole, except in
each case as described in or contemplated by the Registration Statement and
the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Representatives shall have received from each Continuing
Investor an agreement to the effect that such person will not, directly or
indirectly, without the prior written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise sell or
dispose (or announce any offer, sale, offer of sale, contract of sale, pledge,
grant of an option to purchase or other sale or disposition) of any shares of
Common Stock or other capital stock of the Company or Units or other partnership
interests of the Operating Partnership, or any securities convertible into, or
exchangeable or exercisable for, shares of Common Stock or other capital stock
of the Company or Units or other partnership interests of the Operating
Partnership, for a period of two years after the date of this Agreement;
provided, however, the Continuing Investors may pledge Units held by them to
- -------- -------
secure their indemnification obligations in connection with the Formation
Transactions pursuant to the Pledge Agreement listed on Schedule 3 hereto.
(g) On or before the Firm Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(h) Prior to the commencement of the offering of the Securities, the
Securities shall have been approved for listing on the New York Stock Exchange,
subject to official notice of issuance.
(i) The Formation Transactions shall have been consummated or shall
occur simultaneously with the closing of the purchase and sale of the Firm
Securities hereunder.
(j) On or before the Firm Closing Date, all necessary consents to the
Formation Transactions shall have been obtained.
(k) On or before the Firm Closing Date, the Company and the Operating
Partnership shall have delivered to you with respect to each of the Properties
(including, for purposes of the applicable provisions of this paragraph, the
Excluded Properties) copies of:
(i) an owner policy or policies of title insurance insuring that
the Operating Partnership owns fee simple title to the real property (other
than the land in which the Operating Partnership is acquiring a ground
leasehold estate) comprising part of the Properties and owns and holds a
valid ground leasehold estate in the land comprising part of the Properties
in which the Operating Partnership is acquiring a ground leasehold estate,
in an amount not less than $240,000,000, which policies shall be issued by
a title insurance company acceptable to you (any such person or persons,
the "Title Company"), include tie-in endorsements, do not contain any
coinsurance provisions and contain as exceptions to title only those
exceptions acceptable to the Representatives;
(ii) an as-built survey of each of the Properties in form
satisfactory to you;
29
<PAGE>
(iii) all assignments of ground leases, airspace leases and
tenant leases, service contracts and similar rights necessary to operate
each of the Properties and that are required to be delivered pursuant to
the Omnibus Option Agreement;
(iv) all tenant estoppels, third party consents, waivers,
licenses, permits, authorizations, agreements, certificates and the like
necessary to operate each of the Properties and that are required to be
delivered pursuant to the Omnibus Option Agreement;
(v) all certificates of occupancy, zoning compliance letters, and
evidence of utility availability for each of the Properties;
(vi) policies or certificates of insurance (including earthquake
insurance) relating to each of the Properties evidencing coverages and in
amounts as are prudent and customary in the businesses in which they are or
will be engaged;
(vii) UCC, judgment and tax lien searches confirming that the
personal property comprising part of the Properties is subject to no liens,
charges, encumbrances, claims or restrictions;
(viii) such affidavits, certificates and instruments of
indemnification as shall reasonably be required to induce the Title Company
to issue the policies contemplated in clause (i) of this Section 7(k);
(ix) checks payable to the appropriate public officials in
payment of all recording costs and transfer taxes (or checks or wire
transfers to the Title Company in respect of such amounts) due in respect
of the recording of any instruments to be recorded in connection with the
Formation Transactions, together with a check or wire transfer for the
Title Company in payment of the Title Company's premium, search and
examination charges, survey costs and any other amounts due in connection
with the issuance of its policy (or commitment); and
(x) if any of the Properties is subject to an existing mortgage,
a current payoff letter from the holder of such existing mortgage
indicating the principal amount required to satisfy all amounts then
secured by such existing mortgage and the additional amount required for
each day after the date of such letter necessary to satisfy all obligations
secured thereby.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Securities shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Securities, except that all references
to the Firm Securities and the Firm Closing Date shall be deemed to refer to
such Option Securities and the related Option Closing Date, respectively.
30
<PAGE>
8. Indemnification and Contribution. (a) Each of the Company and the
---------------------------------
Operating Partnership, jointly and severally, agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Securities
Exchange Act of 1934 (the "Exchange Act"), against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company or the Operating Partnership in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Securities under the securities or
blue sky laws thereof or filed with the Commission or any securities
association or securities exchange (each an "Application"),
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, or any
Application a material fact required to be stated therein or necessary to
make the statements therein not misleading or
(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials used in connection
with the marketing of the Securities, including, without limitation,
slides, videos, films and tape recordings, as more specifically described
on Schedule 7 hereto,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that neither the Company nor the
-----------------
Operating Partnership will be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or any
Application in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein; and provided, further, that neither the Company
-----------------
nor the Operating Partnership will be liable to any Underwriter or any person
controlling such Underwriter with respect to any such untrue statement or
omission made in any Preliminary Prospectus that is corrected in the Prospectus
(or any amendment or supplement thereto) if the person asserting any such loss,
claim, damage or liability purchased Securities from such Underwriter but was
not sent or given a copy of the Prospectus (as amended or supplemented) at or
prior to the written confirmation of the sale of such Securities to such person
in any case where such delivery of the Prospectus (as amended or supplemented)
is required by the Act, unless such failure to deliver the Prospectus (as
amended or supplemented) was a result
31
<PAGE>
of noncompliance by the Company or the Operating Partnership with Section 5(d)
and (e) of this Agreement. This indemnity agreement will be in addition to any
liability which the Company or the Operating Partnership may otherwise have.
Neither the Company nor the Operating Partnership will, without the prior
written consent of the Underwriter or Underwriters purchasing, in the aggregate,
more than fifty percent (50%) of the Securities, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not any such Underwriter or any person who controls any such Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of all of the
Underwriters and such controlling persons from all liability arising out of such
claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or any
Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or any Application or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein; and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability or any action in respect thereof. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have. No Underwriter will, without the prior consent of the Company,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not the Company, any of its directors or
officers who signed the Registration Statement or any person who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of the
Company, its officers and directors who signed the Registration Statement and
such controlling persons from all liability arising out of such claim, action,
suit or proceeding.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from (i) any
liability which it may have to any indemnified party under this Section 8 except
to the extent that the indemnifying party has been prejudiced as a result
thereof or (ii) any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is
32
<PAGE>
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
-----------------
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
8, representing the indemnified parties under such paragraph (a) who are parties
to such action or actions) or (ii) the indemnifying party does not promptly
retain counsel satisfactory to the indemnified party or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying
party to such indemnified party, the indemnifying party will not be liable for
the costs and expenses of any settlement of such action effected by such
indemnified party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault of
the parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Underwriters, the parties' relative intents, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate
33
<PAGE>
in the circumstances. The Company and the Operating Partnership and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to above in this paragraph (d). Notwithstanding any other provision of
this paragraph (d), no Underwriter shall be obligated to make contributions
hereunder that in the aggregate exceed the total public offering price of the
Securities purchased by such Underwriter under this Agreement, less the
aggregate amount of any damages that such Underwriter has otherwise been
required to pay in respect of the same or any substantially similar claim, and
no person guilty of fraudulent misrepresentation (within the meaning of Section
11 (f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute hereunder are several in proportion to their respective underwriting
obligations and not joint, and contributions among Underwriters shall be
governed by the provisions of the Prudential Securities Incorporated Master
Agreement Among Underwriters. For purposes of this paragraph (d), each person,
if any, who controls an Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, and the Company and the Operating Partnership shall be deemed
one party and jointly and severally liable for any obligations to contribute
hereunder and each director of the Company, each officer of the Company who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Company and the
Operating Partnership.
9. Default of Underwriters. If one or more Underwriters default in their
-----------------------
obligations to purchase Firm Securities or Option Securities hereunder and the
aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company or the Operating
Partnership other than as provided in Section 10 hereof. In the event of any
default by one or more Underwriters as described in this Section 9, the
Representatives shall have the right to postpone the Firm Closing Date or the
Option Closing Date, as the case may be, established as provided in Section 3
hereof for not more than seven business days in order that any necessary changes
may be made in the arrangements or documents for the purchase and delivery of
the Firm Securities or Option Securities, as the case may be. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 9. Nothing herein shall relieve any defaulting
Underwriter from liability for its default.
34
<PAGE>
10. Survival. The respective representations, warranties, agreements,
--------
covenants, indemnities and other statements of the Company, its officers, the
Operating Partnership and the several Underwriters set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Company, any of its officers or directors, the Operating
Partnership, any Underwriter or any controlling person referred to in Section 8
hereof and (ii) delivery of and payment for the Securities. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6
and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated with respect to
-----------
the Firm Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company given prior to the Firm Closing Date or
the related Option Closing Date, respectively, in the event that the Company or
the Operating Partnership shall have failed, refused or been unable to perform
all obligations and satisfy all conditions on its part to be performed or
satisfied hereunder at or prior thereto or, if at or prior to the Firm Closing
Date or such Option Closing Date, respectively,
(i) the Company or any of its subsidiaries shall have, in the
sole judgment of the Representatives, sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding or there shall have been any material adverse change, or any
development involving a prospective material adverse change (including
without limitation a change in management or control of the Company), in
the condition (financial or otherwise), business prospects, net worth or
results of operations of the Company and its subsidiaries, taken as a
whole, except in each case as described in or contemplated by the
Registration Statement and the Prospectus (exclusive of any amendment or
supplement thereto);
(ii) trading in the Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or
minimum or maximum prices shall have been established on any such exchange;
(iii) a banking moratorium shall have been declared by New York,
California or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or material
adverse change in general economic, political or financial conditions
having an effect on the U.S. financial markets that, in the sole judgment
of the Representatives, makes it impractical or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated by
the Registration Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party except as provided in
Section(s) 6 and 10 hereof.
35
<PAGE>
12. Information Supplied by Underwriters. The statements set forth in the
------------------------------------
last paragraph on the front cover page and under the heading "Underwriting" in
any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Sections 2(b) and 8 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
13. Notices. All communications hereunder shall be in writing and, if
-------
sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, One New York Plaza, New York, New York 10292, Attention: Equity
Transactions Group; and if sent to the Company, shall be delivered or sent by
mail, telex or facsimile transmission and confirmed in writing to the Company at
2250 East Imperial Highway, El Segundo, California 90245, Attention: Chief
Executive Officer.
14. Successors. This Agreement shall inure to the benefit of and shall be
----------
binding upon the several Underwriters, the Company, the Operating Partnership
and their respective successors and legal representatives, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that (i) the indemnities of the Company and the Operating Partnership contained
in Section 8 of this Agreement shall also be for the benefit of any person or
persons who control any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act and (ii) the indemnities of the Underwriters
contained in Section 8 of this Agreement shall also be for the benefit of the
directors of the Company, the officers of the Company who have signed the
Registration Statement and any person or persons who control the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act. No
purchaser of Securities from any Underwriter shall be deemed a successor because
of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
--------------
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
16. Consent to Jurisdiction and Service of Process. All judicial
----------------------------------------------
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, each of the Company and the
Operating Partnership accepts for itself and in connection with its properties,
generally and unconditionally, the nonexclusive jurisdiction of the aforesaid
courts and waives any defense of forum non conveniens and irrevocably agrees to
be bound by any judgment rendered thereby in connection with this Agreement.
Each of the Company and the Operating Partnership designates and appoints
__________________, and such other persons as may hereafter be selected by each
of the Company and the Operating Partnership irrevocably agreeing in writing to
so serve, as its agent to receive on its behalf service of all process in any
such proceedings in any such court, such service being hereby acknowledged by
each of the Company and the Operating Partnership to be effective and binding
service in every respect. A copy of any such process so served shall be mailed
by registered mail to each of the Company and the Operating Partnership at its
address provided in Section 13 hereof; provided, however, that, unless otherwise
-------- -------
provided
36
<PAGE>
by applicable law, any failure to mail such copy shall not affect the validity
of service of such process. If any agent appointed by the Company or the
Operating Partnership refuses to accept service, each of the Company and the
Operating Partnership hereby agrees that service of process sufficient for
personal jurisdiction in any action against the Company or the Operating
Partnership in the State of New York may be made by registered or certified
mail, return receipt requested, to the Company or the Operating Partnership at
its address provided in Section 13 hereof, and each of the Company and the
Operating Partnership hereby acknowledges that such service shall be effective
and binding in every respect. Nothing herein shall affect the right to serve
process in any other manner permitted by law or shall limit the right of any
Underwriter to bring proceedings against each of the Company and the Operating
Partnership in the courts of any other jurisdiction.
17. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
37
<PAGE>
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company, the Operating
Partnership and each of the several Underwriters.
Very truly yours,
KILROY REALTY CORPORATION
By:
--------------------------------
Name:
Title:
KILROY REALTY, L.P.
By: Kilroy Realty Corporation,
its General Partner
By:
---------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
J.P. MORGAN SECURITIES INC.
SMITH BARNEY INC.
By: PRUDENTIAL SECURITIES INCORPORATED
By
-------------------------------------
Jean-Claude Canfin, Director
For itself and on behalf of the Representatives.
38
<PAGE>
SCHEDULE 1
UNDERWRITERS
------------
<TABLE>
<CAPTION>
Number of Firm
Securities to
Underwriter be Purchased
- ----------- --------------
<S> <C>
Prudential Securities Incorporated......
Donaldson, Lufkin & Jenrette Securities
Corporation............................
J.P. Morgan Securities Inc..............
Smith Barney Inc........................
[insert names of other Underwriters
- -----------------------------------
alphabetically by bracket or in other
-------------------------------------
order determined by Prudential
------------------------------
Securities Incorporated -
-------------------------
Equity Transactions Group]
--------------------------
__________
Total..................... 11,300,000
</TABLE>
<PAGE>
SCHEDULE 2
PARTNERS OF OPERATING PARTNERSHIP
---------------------------------
NUMBER PERCENTAGE
GENERAL PARTNER OF UNITS OF ALL UNITS
- --------------- -------- ------------
Kilroy Realty Corporation
LIMITED PARTNERS
- ----------------
<PAGE>
SCHEDULE 3
TRANSACTION DOCUMENTS
---------------------
1. Amended and Restated Agreement of Limited Partnership of Kilroy Realty, L.P.
dated ________, 1997.
2. Registration Rights Agreement dated ________, 1997 among the Company and the
other persons named therein.
3. Noncompetition Agreement dated ________, 1997 between the Company and John
B. Kilroy, Sr.
4. Noncompetition Agreement dated ________, 1997 between the Company and John
B. Kilroy, Jr.
5. Omnibus Option Agreement dated October 30, 1996 among the Operating
Partnership and the Grantors (as defined below).
6. Representation Letter, Consent and Power of Attorney dated October 30, 1996
executed by each of the Grantors.
7. Supplemental Representations, Warranties and Indemnity Agreement dated
________, 1997 among the Company, the Operating Partnership and John B.
Kilroy, Sr., John B. Kilroy, Jr. and Kilroy Industries.
8. Pledge Agreement dated ________, 1997 among John B. Kilroy, Sr., John B.
Kilroy, Jr., Kilroy Industries and the Company, as agent for the pledgees.
9. Option Agreement dated ________, 1997 between the Operating Partnership and
Kilroy Calabasas Associates.
10. Option Agreement dated ________, 1997 between the Operating Partnership and
Kilroy Airport Imperial Co.
11. Management Agreement dated ________, 1997 between the Operating Partnership
and Kilroy Airport Imperial Co.
12. Management Agreement dated ________, 1997 between the Operating Partnership
and Kilroy Calabasas Associates.
13. Development Agreement dated ________, 1997 between the Operating Partnership
and the Services Company.
14. [L&W to add the Mortgage Loan documents]
15. [L&W to add the Credit Facility documents]
<PAGE>
16. Shared Facilities Agreement dated ________, 1997 between the Company and
Kilroy Industries.
17. License Agreement dated ________, 1997 between the Company and ________ [re:
Kilroy name].
18. Indemnification Agreement dated ________, 1997 between the Company and John
B. Kilroy, Sr.
19. Indemnification Agreement dated ________, 1997 between the Company and John
B. Kilroy, Jr.
20. Indemnification Agreement dated ________, 1997 between the Company and
Jeffrey C. Hawken.
21. Indemnification Agreement dated ________, 1997 between the Company and
Campbell Hugh Greenup.
22. Indemnification Agreement dated ________, 1997 between the Company and
Richard E. Moran, Jr.
23. Indemnification Agreement dated ________, 1997 between the Company and A.
Christian Krogh.
24. Indemnification Agreement dated ________, 1997 between the Company and
William P. Dickey.
25. Indemnification Agreement dated ________, 1997 between the Company and
Matthew J. Hart.
26. Indemnification Agreement dated ________, 1997 between the Company and Dale
F. Kinsella
27. Employment Agreement dated ________, 1997 between the Company and John B.
Kilroy, Jr.
28. Employment Agreement dated ________, 1997 between the Company and Richard E.
Moran Jr.
29. Employment Agreement dated ________, 1997 between the Company and Jeffrey C.
Hawken.
30. Employment Agreement dated ________, 1997 between the Company and Campbell
Hugh Greenup.
31. All other agreements and instruments related to the Formation Transactions
[To add each bill of sale and assignment instrument (i.e. assignment of
contracts, leases and ground leases, deeds, etc.)]
<PAGE>
* * *
Certain Defined Terms
- ---------------------
"Grantors" -- Patrice Kilroy Bouzaid
Susan Hahn
K-FIDO Associates, a California Limited Partnership
Kilroy A-102 Trust, a California inter vivos trust
Kilroy Airport Associates, a California general partnership
Kilroy Building 73 Partnership, a California general partnership
Kilroy-Freehold Industrial Development Organization, a California
general partnership
Kilroy Garden Grove Associates, a California general partnership
Kilroy Industries, a California corporation
John B. Kilroy, Jr.
John B. Kilroy, Sr.
Kilroy K-FIDO Associates, a California Limited Partnership
Kilroy LB Affiliates II, a California Limited Partnership
Kilroy Long Beach Associates, a California Limited Partnership
Kilroy Long Beach Partner II, a California Limited Partnership
Kilroy 1979 Trust, a California inter vivos trust
Kilroy Technologies Company, LLC, a California Limited Liability
Company
Anne McCahon
Marshall L. McDaniel
Dana Pantuso
SEA/TAC Properties, Ltd., a California Limited Partnership
<PAGE>
SCHEDULE 4
OTHER PROPERTIES OWNED BY MEMBERS OF THE KILROY GROUP
-----------------------------------------------------
<PAGE>
SCHEDULE 5
OPERATIVE DOCUMENTS
-------------------
1. Amended and Restated Agreement of Limited Partnership of Kilroy Realty,
L.P. dated ________, 1997.
2. Registration Rights Agreement dated ________, 1997 among the Company and the
other persons named therein.
3. Noncompetition Agreement dated ________, 1997 between the Company and John
B. Kilroy, Sr.
4. Noncompetition Agreement dated ________, 1997 between the Company and John
B. Kilroy, Jr.
5. Omnibus Option Agreement dated October 30, 1996 among the Operating
Partnership and the Grantors (as defined below).
6. Representation Letter, Consent and Power of Attorney dated October 30, 1996
executed by each of the Grantors.
7. Supplemental Representations, Warranties and Indemnity Agreement dated
________, 1997 among the Company, the Operating Partnership and John B.
Kilroy, Sr., John B. Kilroy, Jr. and Kilroy Industries.
8. Pledge Agreement dated ________, 1997 among John B. Kilroy, Sr., John B.
Kilroy, Jr., Kilroy Industries and the Company, as agent for the pledgees.
9. Option Agreement dated ________, 1997 between the Operating Partnership and
Kilroy Calabasas Associates.
10. Option Agreement dated ________, 1997 between the Operating Partnership and
Kilroy Airport Imperial Co.
11. Management Agreement dated ________, 1997 between the Operating Partnership
and Kilroy Airport Imperial Co.
12. Management Agreement dated ________, 1997 between the Operating Partnership
and Kilroy Calabasas Associates.
13. Development Agreement dated ________, 1997 between the Operating Partnership
and the Services Company.
14. Shared Facilities Agreement dated ________, 1997 between the Company and
Kilroy Industries.
<PAGE>
15. License Agreement dated ________, 1997 between the Company and ________ [re:
Kilroy name].
[To add each bill of sale and assignment instrument (i.e. assignment of
contracts, leases and ground leases, deeds, etc.)]
<PAGE>
SCHEDULE 6
LIST OF TRANSFER DOCUMENTS
--------------------------
1. Omnibus Option Agreement dated October 30, 1996 among the Operating
Partnership and the Grantors (as defined in Schedule 3 hereto).
2. Representation Letter, Consent and Power of Attorney dated October 30, 1996
executed by each of the Grantors.
3. Supplemental Representations, Warranties and Indemnity Agreement dated
________, 1997 among the Company, the Operating Partnership and John B.
Kilroy, Sr., John B. Kilroy, Jr. and Kilroy Industries.
4. Option Agreement dated ________, 1997 between the Operating Partnership and
Kilroy Calabasas Associates.
5. Option Agreement dated ________, 1997 between the Operating Partnership and
Kilroy Airport Imperial Co.
6. License Agreement dated ________, 1997 between the Company and ________ [re:
Kilroy name].
[To add each bill of sale and assignment instrument (i.e. assignment of
contracts, leases and ground leases, deeds, etc.)]
<PAGE>
SCHEDULE 7
MARKETING MATERIALS PROVIDED BY THE COMPANY
-------------------------------------------
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL]
January 27, 1997
Kilroy Realty Corporation
2250 East Imperial Highway
El Segundo, California 90245672
Re: Kilroy Realty Corporation, a Maryland
corporation, (the "Company") - Registration
Statement on Form S-11 pertaining to Fourteen
Million Three Hundred Seventy Five Thousand
(14,375,000) shares of common stock, par value
one cent ($.01) per share (the "Shares")
-----------------------------------------------
Ladies and Gentlemen:
In connection with the registration of the Shares under the Securities Act
of 1933 as amended (the "Act"), by the Company on Form S-11 filed with the
Securities and Exchange Commission (the "Commission") on or about November 5,
1996, as amended (the "Registration Statement"), you have requested our opinion
with respect to the matters set forth below.
We have acted as special Maryland corporate counsel for the Company in
connection with the matters described herein. In our capacity as special
Maryland corporate counsel to the Company, we have reviewed and are familiar
with proceedings taken and proposed to be taken by the Company in connection
with the authorization, issuance and sale of the Shares, and for purposes of
this opinion have assumed such proceedings will be timely completed in the
manner presently proposed. In addition, we have relied upon certificates and
advice from the officers of the Company upon which we believe we are justified
in relying and on various certificates form the documents recorded with, the
State Department of Assessments and Taxation of Maryland (the "SDAT"), including
the charter of the Corporation (the "Charter"), consisting of Articles of
Incorporation filed with the SDAT on September 13, 1996 and Articles of
Amendment and Restatement filed with the SDAT on January 20, 1997. We have also
examined the Bylaws of the Company adopted as of September 13, 1996, (the
Bylaws") and Resolutions of the Board of Directors of the Company adopted on or
before January 20, 1997 and in full force and effect on January 20, 1997; and
such
<PAGE>
Kilroy Realty Corporation
January 27, 1997
Page 2
laws, records, documents, certificates, opinions and instruments as we deem
necessary to render this opinion.
We have assumed the genuineness of all signatures and the authenticity of
all documents submitted to us as originals and the conformity to the originals
of all documents submitted to us as certified, photostatic or conformed copies.
In addition, we have assumed that each person executing any instrument, document
or certificate referred to herein on behalf of any party is duly authorized to
do so.
Based on the foregoing, and subject to the assumptions and qualifications
set forth herein, it is our opinion that, as of the date of this letter, the
Shares have been duly authorized by all necessary corporation action on the part
of the Company, and the Shares will, upon issuance and delivery in accordance
with and subject to the terms and conditions described in the Registration
Statement against payment of the purchase price therefore as determined by the
Board of Directors of the Company or a committee thereof, by validly issued,
fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the Registration
Statement, and further consent to the filing of this opinion as an exhibit to
the applications to securities commissioners for the various states of the
United States for registration of the Shares. We also consent to the
identification of our firm as Maryland counsel to the Company in the section of
the Prospectus (which is part of the Registration Statement) entitled "Legal
Matters."
The opinions expressed herein are limited to the laws of the State of
Maryland and we express no opinion concerning any laws other than the laws of
the State of Maryland. Furthermore, the opinions presented in this letter are
limited to the matters specifically set forth herein and no other opinion shall
be inferred beyond the matters expressly stated.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll
-------------------------------------
<PAGE>
EXHIBIT 8.1
[LETTERHEAD OF LATHAM & WATKINS]
January 24, 1997
Kilroy Realty Corporation
2250 East Imperial Highway
El Segundo, California 90245
Re: Federal Income Tax Consequences
-------------------------------
Ladies and Gentlemen:
We have acted as tax counsel to Kilroy Realty Corporation, a Maryland
corporation (the "Company"), in connection with its formation and its sale of
11,300,000 shares of common stock (the "Common Stock"), par value $.01 per share
of the Company, registered under the Securities Act of 1933, as amended,
pursuant to a registration statement on Form S-11 (File No. 333-15553) filed
with the Securities and Exchange Commission (the "Commission") on November 5,
1996, as amended by a registration statement (Amendment No. 1) on Form S-11
filed with the Commission on December 27, 1996, as amended by a registration
statement (Amendment No. 2) on Form S-11 filed with the Commission on January
15, 1997 (such registration statement, as amended as of the time it became
effective, the "Registration Statement").
You have requested our opinion concerning certain of the federal
income tax consequences to the Company and the purchasers of the Common Stock in
connection with the sale described above. This opinion is based on various
facts and assumptions, including the facts set forth in the Registration
Statement concerning the business, properties and governing documents of the
Company, Kilroy Realty, L.P. (the "Operating Partnership") and their
subsidiaries. Moreover, we are familiar with certain events and proceedings
which are expected to take place prior to the closing of the transactions
described in the Registration Statement, and this opinion is conditioned upon
the occurrence of such events prior to closing. We have also been furnished
with, and with your consent have relied upon, certain representations made by
the Company, the Operating Partnership and their subsidiaries with respect to
certain factual matters through a certificate of an officer of the Company (the
<PAGE>
Kilroy Realty Corporation
January 24, 1997
Page 2
"Officer's Certificate"). With respect to matters of Maryland law, we have
relied upon the opinion of Ballard Spahr Andrews & Ingersoll, counsel for the
Company, dated January 24, 1997.
In our capacity as tax counsel to the Company, we have made such legal
and factual examinations and inquiries, including an examination of originals or
copies certified or otherwise identified to our satisfaction of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate for purposes of this opinion. In our examination, we have assumed
the authenticity of all documents submitted to us as originals, the genuineness
of all signatures thereon, the legal capacity of natural persons executing such
documents and the conformity to authentic original documents of all documents
submitted to us as copies.
We are opining herein as to the effect on the subject transaction only
of the federal income tax laws of the United States and we express no opinion
with respect to the applicability thereto, or the effect thereon, of other
federal laws, the laws of any state or other jurisdiction or as to any matters
of municipal law or the laws of any other local agencies within any state.
Based on such facts, assumptions and representations, it is our
opinion that:
1. Commencing with the Company's taxable year ending December 31,
1997, the Company will be organized in conformity with the requirements for
qualification as a "real estate investment trust," and its proposed method
of operation, as described in the representations of the Company, the
Operating Partnership and their subsidiaries referred to above, will enable
the Company to meet the require ments for qualification and taxation as a
"real estate investment trust" under the Internal Revenue Code of 1986, as
amended (the "Code").
2. The Operating Partnership will be treated as a partnership for
federal income tax purposes (and not as an association or publicly traded
partnership taxable as a corporation).
3. The statements in the Registration Statement set forth under the
caption "Federal Income Tax Consequences" to the extent such information
constitutes matters of law, summaries of legal matters, or legal
conclusions, have been reviewed by us and are accurate in all material
respects.
No opinion is expressed as to any matter not discussed herein.
<PAGE>
Kilroy Realty Corporation
January 24, 1997
Page 3
This opinion is based on various statutory provisions, regulations
promulgated thereunder and interpretations thereof by the Internal Revenue
Service and the courts having jurisdiction over such matters, all of which are
subject to change either prospectively or retroactively. Any such change may
affect the conclusions stated herein. Also, any variation or difference in the
facts from those set forth in the representations of the Company, the Operating
Partnership and their subsidiaries (including those set forth in the
Registration Statement or the Officer's Certificate) may affect the conclusions
stated herein. Moreover, the Company's qualification and taxation as a real
estate investment trust depends upon the Company's ability to meet, through
actual annual operating results, distribution levels and diversity of stock
ownership, the various qualification tests imposed under the Code, the results
of which have not been and will not be reviewed by Latham & Watkins.
Accordingly, no assurance can be given that the actual results of the Company's
operation for any one taxable year will satisfy such requirements.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Registration Statement.
Very truly yours,
/s/ Latham & Watkins
<PAGE>
EXHIBIT 10.4
SUPPLEMENTAL REPRESENTATIONS,
-----------------------------
WARRANTIES AND INDEMNITY AGREEMENT
----------------------------------
THIS SUPPLEMENTAL REPRESENTATIONS, WARRANTIES AND INDEMNITY AGREEMENT (the
"Agreement") is made and entered into as of __________ __, 1997 by Kilroy
Industries, a California corporation, John B. Kilroy, Sr., and John B. Kilroy,
Jr. (all of the aforementioned individuals and entity being referred to herein
individually as an "Indemnitor" and collectively as the "Indemnitors"), and
Kilroy Realty, L.P., a Delaware limited partnership (the "Operating
Partnership"), and Kilroy Realty Corporation, a Maryland corporation (the
"REIT").
WHEREAS, the Indemnitors and certain other persons own interests in one or
more of the Properties (each as hereinafter defined) either directly or
indirectly through a trust or in the form of general or limited partnership
interests in one or more partnerships or in the form of a membership interest in
a limited liability company (each such interest is referred to herein as an
"Interest");
WHEREAS, the Indemnitors and certain other persons will transfer to the
Operating Partnership all of their Interests in the Properties (a) upon the
exercise by the Operating Partnership, on or before consummation of an initial
public offering of shares of common stock of the REIT (the "IPO"), of options
granted to it by such persons pursuant to the Omnibus Option Agreement dated as
of November 3, 1996 (the "Omnibus Agreement") by and among the Operating
Partnership and the grantors named therein and (b) upon the exercise by the
Operating Partnership, following the IPO, of options granted to it by such
persons pursuant to two separate Option Agreements, each dated as of
______________, 1997 (each individually, an "Option Properties Agreement", and
collectively, the "Option Properties Agreements") by and among the Operating
Partnership and the grantors named therein (all individuals and entities other
than the Operating Partnership which executed the Omnibus Agreement or the
Option Properties Agreements are referred to herein collectively as the
"Grantors" and individually as a "Grantor");
WHEREAS, certain of the Grantors executed a Representation Letter, Consent
and Power of Attorney (collectively, the "Consents and Power of Attorney")
pursuant to which they consented to the transfer of their Interests to the
Operating Partnership under the Omnibus Agreement, made certain representations
and warranties and appointed John B. Kilroy, Sr., John B. Kilroy, Jr. and
Jeffrey C. Hawken or any of them as their attorney-in-fact (each, an "Attorney-
in-Fact") to effect such transfers; all of the foregoing transfers and actions
contemplated in connection with the IPO under the Consents and Power of
Attorney, the Omnibus Agreement and the Option Properties Agreements are
collectively referred to herein as the "Transactions"; and
<PAGE>
WHEREAS, to induce the REIT to consummate the IPO and to induce the
Operating Partnership to exercise the options granted to it pursuant to the
Omnibus Agreement and the Option Properties Agreements, each Indemnitor has
agreed to make the representations and warranties contained in this Agreement
for the benefit of the REIT and the Operating Partnership.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereby agree as follows:
1. Defined Terms. As used herein, the following terms shall have the
-------------
respective meanings indicated below:
"Acquisition Properties" shall mean the properties located at (i) 3880
----------------------
and 3900 Kilroy Airport Way, Kilroy Airport Center, Long Beach, California, (ii)
2829 Townsgate Road, Thousand Oaks, California, (iii) 12752-12822 Monarch
Street, Garden Grove, California and (iv) 4125, 4155 and 4175 E. La Palma
Avenue, Anaheim, California.
"Assumed Liabilities" shall mean all accounts payable and accrued
-------------------
expenses (other than accounts payable or accrued expenses which by their terms
are past due), accrued property taxes (other than property taxes which by their
terms are past due), accrued cost of option buy-out and tenant improvements and
rent received in advance and tenant security deposits reflected on the September
30, 1996 pro forma condensed consolidated balance sheet of the Company included
in the Registration Statement or incurred in the ordinary course of the Kilroy
Group's Business consistent with past practices from October 1, 1996 until the
Closing Date and which remain unpaid on the Closing Date, but excluding any
amounts which by their terms are past due and excluding the liabilities set
forth on Schedule 1 attached hereto.
----------
"Attorney-in-Fact" shall have the meaning assigned to such term in
----------------
the recitals to this Agreement.
"Claim" shall have the meaning assigned to such term in Section 4
-----
hereof.
"Closing Date" shall mean the date of the closing of the IPO.
------------
"Code" shall mean the Internal Revenue Code of 1986, as amended.
----
"Collateral" shall have the meaning assigned to such term in the
----------
Pledge Agreement.
"Commission" shall mean the Securities and Exchange Commission.
----------
2
<PAGE>
"Consents and Power of Attorney" shall have the meaning assigned to
------------------------------
such term in the recitals to this Agreement.
"Contract" shall have the meaning assigned to such term in Section
--------
2.13 hereof.
"Covered Party" shall have the meaning assigned to such term in
-------------
Section 4 hereof.
"Entity" shall mean KI and each corporation, partnership, limited
------
liability company or trust affiliated with KI or any Grantor which prior to the
closing of the IPO directly owned or leased a Property and, in the event that
any such trust terminated or the Property of any such trust is deemed
distributed, each beneficiary of such trust.
"ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as amended, and the rules and regulations promulgated thereunder.
"Excluded Liabilities" shall mean all obligations and liabilities of
--------------------
any nature of any Grantor other than the Assumed Liabilities including, without
limitation, the obligations and liabilities referred to on Schedule 1 hereto.
"Financial Statement" and "Financial Statements" shall have the
------------------- --------------------
meaning assigned to such terms in Section 2.11 hereof.
"Grantors" and "Grantor" shall have the meaning assigned to such
-------- -------
terms in the recitals to this Agreement.
"Grantor Agreement" and "Grantor Agreements" shall have the meaning
----------------- ------------------
assigned to such terms in Section 2.2 hereof.
"Indemnitor" and "Indemnitors" shall have the meaning assigned to
---------- -----------
such terms in the preamble to this Agreement.
"Intangibles" shall mean all intangible property used in the Kilroy
-----------
Group's Business, including, without limitation, all Proprietary Rights,
contract rights, rent receivables, licenses, permits, certificates, approvals,
authorizations, variances, consents, warranties and goodwill, but excluding the
intangible property set forth on Exhibit A attached hereto.
---------
"Interests" shall have the meaning assigned to such term in the
---------
recitals to this Agreement.
"IPO" shall have the meaning assigned to such term in the recitals to
---
this Agreement.
3
<PAGE>
"KI" shall mean Kilroy Industries, a California corporation.
--
"Kilroy Group" shall mean the Entities collectively.
------------
"Kilroy Group's Business" shall mean the real estate ownership,
-----------------------
acquisition, development, leasing and management businesses, collectively, of
the Kilroy Group.
"Lien" shall mean any mortgage, deed of trust, pledge, lien, option,
----
security interest, restriction, prior assignment, encumbrance, covenant,
encroachment, assessment, right of others, license, easement, servitude, right
of way, penalty, fine, charge, judgment, liability, debt, obligation or claim of
any kind or nature whatsoever, whether direct or indirect, and contingent or
non-contingent.
"Offering Date" shall mean the date on which the underwriting
-------------
agreement is executed with respect to the purchase of the REIT's common stock by
the underwriters in connection with the IPO.
"Omnibus Agreement" shall have the meaning assigned to such term in
-----------------
the recitals to this Agreement.
"Operating Partnership" shall have the meaning assigned to such term
---------------------
in the preamble to this Agreement.
"Option Properties" shall mean the Real Properties set forth in Part
-----------------
II of Exhibit C attached hereto. Each of the Option Properties may be
---------
separately referred to herein as an "Option Property".
"Option Properties Agreement" and "Option Properties Agreements" shall
--------------------------- ----------------------------
have the meaning assigned to such terms in the recitals to this Agreement.
"Organization Documents" shall mean (a) the articles or certificate of
----------------------
incorporation and the bylaws of a corporation, (b) the partnership agreement and
any statement of partnership of a general partnership, (c) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership, (d) the declaration of trust of a trust, (e) the articles of
organization and limited liability company agreement of a limited liability
company, (f) any charter or similar document adopted or filed in connection with
the creation, formation or organization of a person and (g) any amendment to any
of the foregoing.
"Permit" shall have the meaning assigned to such term in Section 2.16
------
hereof.
"Permitted Liens" shall have the meaning assigned to such term in
---------------
Section 2.8 hereof.
4
<PAGE>
"person" shall mean any individual, corporation, partnership, limited
------
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or governmental entity.
"Personalty" shall mean all personal property used or useful in the
----------
Kilroy Group's Business, including, without limitation, all tangible property
and all rights under the contracts referred to in Section 2.13 hereof and the
leases referred to in Sections 2.14 and 2.15 hereof and all other Intangibles,
as more fully described on Exhibit B attached hereto.
---------
"Pledge Agreement" shall have the meaning assigned to such term in
----------------
Section 5 hereof.
"Properties" shall mean the Real Properties and all Personalty. Each
----------
of the Properties may be separately referred to herein as a "Property".
"Proprietary Rights" shall have the meaning assigned to such term in
------------------
Section 2.26 hereof.
"Real Properties" shall mean the office, industrial and other real
---------------
properties set forth on Exhibit C attached hereto, including all buildings,
---------
structures (surface and sub-surface), mechanical systems and other improvements
located at and forming a part of such properties. Each of the Real Properties
may be separately referred to herein as a "Real Property".
"Registration Statement" shall mean the REIT's Registration Statement
----------------------
on Form S-11 (File No. 333-15553), as amended at any time prior to the date the
Registration Statement is declared effective by the Commission under the
Securities Act..
"REIT" shall have the meaning assigned to such term in the preamble
----
to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
--------------
"Services Company" shall mean Kilroy Services, Inc., a Maryland
----------------
corporation.
"Survival Period" shall have the meaning assigned to such term in
---------------
Section 6 hereof.
"Transactions" shall have the meaning assigned to such term in the
------------
recitals to this Agreement.
5
<PAGE>
2. Representations and Warranties with Respect to Properties and
-------------------------------------------------------------
Grantors. Each Indemnitor hereby makes the following representations and
- --------
warranties, as of the Offering Date and as of the Closing Date, with respect to
the Grantors, the Entities, the Interests and the Properties. Such
representations and warranties, other than those contained in Section 3.4
hereto, are deemed modified in full to the extent any specific statement of fact
in the Registration Statement conflicts with any similar statement of fact
contained in such representations and warranties.
2.1 Organization and Qualification. Each Grantor that is a limited
------------------------------
partnership or a limited liability company was duly formed and is validly
existing and in good standing under the laws of its jurisdiction of
organization, and has the requisite power and authority to own, lease or operate
its property and to carry on its business as it is now being conducted and to
engage in the Transactions to which it is a party. Each Grantor that is a
general partnership was duly formed and is validly existing under the laws of
its jurisdiction of organization, and has the requisite power and authority to
own, lease or operate its property and to carry on its business as it is now
being conducted and to engage in the Transactions to which it is a party. Each
Grantor that is a corporation was duly organized and is validly existing and in
good standing under the laws of its jurisdiction of organization, and has the
requisite power and authority to own, lease or operate its property and to carry
on its business as it is now being conducted and to engage in the Transactions
to which it is a party. Each Grantor that is a trust was validly created under
its declaration of trust, and the sole trustees of such trust are Marshall L.
McDaniel and John B. Kilroy, Sr. or John B. Kilroy, Jr. If such trust is in
full force and effect, it and its trustees have the requisite power and
authority under applicable law and under such trust's declaration of trust to
own, lease or operate its property and to carry on its business as it is now
being conducted and to engage in the Transactions to which it is a party. Each
Grantor that is a natural person has the full legal right and capacity to engage
in the Transactions to which he or she is a party. Each Grantor (other than a
Grantor that is a natural person) has made available to the Operating
Partnership or the REIT complete and correct copies of its Organizational
Documents. Each Grantor that is a limited partnership, limited liability
company or a corporation is duly qualified or registered to transact business as
a foreign limited partnership, limited liability company or corporation (as the
case may be) and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the ownership or
leasing of property, the management of properties owned by others or the conduct
of its business, except where the failure to be so qualified or registered and
in good standing would not amount to a material disability on, or have a
material adverse effect on the condition (financial or otherwise), earnings,
assets, business affairs or business prospects of, any Real Property, the Kilroy
Group's Business or, following the consummation of the Transactions, the REIT or
the Operating Partnership or on the Transactions.
2.2 Authority Relative to Omnibus Agreement and Related Agreements.
--------------------------------------------------------------
Each Grantor had the requisite power and authority, and if a natural person the
full legal right and capacity, to execute and deliver the Consent and Power of
Attorney, the Omnibus
6
<PAGE>
Agreement and the Option Properties Agreements to which it is a party and had at
the time of execution and continues to have the requisite power and authority,
and if a natural person the full legal right and capacity, to perform its
obligations under the Consent and Power of Attorney, the Omnibus Agreement and
the Option Properties Agreements to which it is a party. All action of each
Grantor necessary to authorize the execution, delivery and performance by such
Grantor of the Consent and Power of Attorney, the Omnibus Agreement and the
Option Properties Agreements to which it is a party was taken, and no other
proceedings on the part of any Grantor (i) were or are necessary to authorize
the execution and delivery by such Grantor of the Consent and Power of Attorney,
the Omnibus Agreement and the Option Properties Agreements to which it is a
party or the execution and delivery by such Grantor, or by any Attorney-in-Fact
for such Grantor (as applicable), of the instruments of assignment of property
and assets and other deliveries contemplated by the foregoing agreements (all of
the foregoing agreements and instruments being referred to herein collectively
as the "Grantor Agreements" and individually as a "Grantor Agreement") or (ii)
are necessary to authorize the consummation by such Grantor (directly or through
an Attorney-in-Fact) of the Transactions to which it is a party. With respect
to each Grantor who is a natural person living in a community property state,
such Grantor either (a) held (at the time of execution and delivery of the
Consent and Power of Attorney, the Omnibus Agreement and/or the Option
Properties Agreements to which it is party) and continues to hold his or her
Interests as separate property and accordingly had (at the time of execution and
delivery of the Consent and Power of Attorney, the Omnibus Agreement and/or the
Option Properties Agreements to which it is party) and continues to have the
authority alone under applicable laws relating to transfers of community
property to engage in the Transactions to which he or she is a party (including,
without limitation, the transfer of his or her Interests to the Operating
Partnership) or (b) held (at the time of execution and delivery of the Consent
and Power of Attorney, the Omnibus Agreement and/or the Option Properties
Agreements to which it is party) and continues to hold his or her Interests as
community property and has obtained the consents, approvals or authorizations of
such persons and/or governmental authorities or courts required under applicable
laws relating to transfers of community property for such Grantor to engage in
the Transactions to which he or she is party (including, without limitation, the
transfer of his or her Interests to the Operating Partnership); attached hereto
as Schedule 2.2 is a true, correct and complete copy of each such consent,
------------
approval or authorization obtained. The execution and delivery by any Grantor
(directly or through an Attorney-in-Fact) of the Grantor Agreements to which it
is a party, the consummation by such Grantor (directly or through an Attorney-
in-Fact) of the Transactions to which it is a party and the performance by such
Grantor (directly or through an Attorney-in-Fact) of its obligations under the
Grantor Agreements to which it is a party, did not and will not (as the case may
be) (i) conflict with or result in a violation or breach of any provisions of
the Organizational Documents of any such Grantor, (ii) conflict with, result in
a violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, license, easement, restriction, contract,
agreement or other instrument or obligation to which such Grantor was at the
time
7
<PAGE>
of such action or is (as the case may be) a party or subject or by which such
Grantor or any of its properties or other assets was at the time of such action
or is (as the case may be) bound, (iii) conflict with or violate any provision
of any law, statute, rule or regulation or any judgment, order, writ,
injunction, decree, rule or regulation of any court or federal, state or other
governmental agency, authority or regulatory body to which such Grantor or any
of its properties or other assets was at the time of such action or is (as the
case may be) subject or (iv) result in the creation of any Lien upon the
Properties or such Grantor's Interest.
2.3 Consents and Approvals. No consent, waiver, approval,
----------------------
authorization or other action of, or filing or registration with, any federal,
state or other governmental agency, authority or regulatory body or any other
person (including, without limitation, any person who is a party to any lease,
agreement or commitment included in Schedule 2.13, 2.14 or 2.15 attached hereto)
------------- ---- ----
is required to be obtained in connection with the execution, delivery and
performance of the Grantor Agreements and the Transactions, except any of the
foregoing that shall have been obtained and are in full force and effect.
2.4 Binding Obligation. Each of the Grantor Agreements has been duly
------------------
executed and delivered by each Grantor that is a party thereto (directly or
through an Attorney-in-Fact) and constitutes a legal, valid and binding
obligation of such Grantor, enforceable against such Grantor in accordance with
its terms.
2.5 Brokers. No Grantor or any general partner, officer or director
-------
of any Grantor has incurred any liability or obligation for brokerage or
finders' fees or agents' commissions or other similar payment in connection with
the Transactions to which it is a party.
2.6 Ownership. (a) Attached hereto as Schedule 2.6 is a true and
--------- ------------
complete listing of each Entity, the Properties owned or leased by such Entity,
and the owners of each Entity and such owners' percentage ownership interest in
each Entity, and, if the owners of any Entities are themselves corporations or
partnerships, the owners of such corporations and partnerships and their
percentage ownership interest in such corporations or partnerships. In the event
that any Entity which is a trust terminated or the Properties of any such trust
are deemed distributed, the beneficiaries of such trust (prior to its
termination or the deemed distribution) as set forth on Schedule 2.6 directly
------------
own an interest in the Properties owned by such trust as set forth on Schedule
--------
2.6. Except as disclosed in the Registration Statement, no Grantor has granted
- ---
to any person (other than to the Operating Partnership pursuant to the Omnibus
Agreement and the Option Properties Agreements) any option, warrant,
subscription, conversion right, preemptive right or other right to purchase or
otherwise acquire any interest in any Property or in such Grantor, and, to the
knowledge of any Indemnitor, no other person or entity has granted to any person
any option, warrant, subscription, conversion right, preemptive right or other
right to acquire any interest in any Grantor or Property.
8
<PAGE>
(b) With respect to each Interest of a Grantor that constitutes
an interest in a partnership and that is being transferred to the Operating
Partnership pursuant to the Omnibus Agreement or the Option Properties
Agreements: (i) such Interest has been validly issued and the Grantor has funded
all capital contributions and advances to the partnership in which such Interest
constitutes an interest that are required to be funded or advanced prior to the
Closing Date; (ii) such Interest was issued in compliance with applicable
securities, partnership and other laws and the partnership agreement governing
such Interest and was not issued in violation of any preemptive rights; (iii)
there are no options, warrants, subscriptions, conversion rights, preemptive
rights or other rights or agreements of any kind to purchase or otherwise
acquire such Interest or other equity interests or profit participation of any
kind in the partnership in which such Interest constitutes an interest or any
securities or obligations of any kind convertible into such Interest or other
equity interests or profit participation of any kind in the partnership in which
such Interest constitutes an interest, and there are no other agreements,
instruments or understandings with respect to such Interest or other equity
interests or profit participation of any kind in the partnership in which such
Interest constitutes an interest except as set forth in the partnership
agreement of the partnership in which such Interest constitutes an interest;
(iv) such Grantor possesses the unrestricted right to assign and transfer such
Interest to the Operating Partnership; and (v) such Grantor is, and upon
consummation of the assignments and other transactions contemplated by the
Omnibus Agreement or the Option Properties Agreements the Operating Partnership
will be, the owner and holder of good title to such Interests, in each case free
and clear of any Liens; provided, however, that the Operating Partnership shall
-------- -------
not assume, incur or otherwise become responsible for any debts, obligations or
other liabilities of any nature of the partnership in which such Interest
constitutes a general or limited partnership interest, other than the Assumed
Liabilities applicable to such partnership.
2.7 No Other Assets. Except as reflected on Schedule 2.7 attached
--------------- ------------
hereto, no Entity (other than a beneficiary of a trust) owns or leases any
assets other than the Properties which may be transferred to the Operating
Partnership pursuant to the Omnibus Agreement or the Option Properties
Agreements. No Grantor has an interest, direct or indirect, in any of the
Properties except for the Interests subject to the Omnibus Agreement or the
Option Properties Agreements.
(b) Except as reflected on Schedule 2.7, the Properties
------------
constitute all of the properties and assets used or useful in the operation of
the Kilroy Group's Business in a manner consistent with its historic operations
up to the Closing Date.
2.8 Title to Real Properties. To the knowledge of the Indemnitors,
------------------------
upon consummation of the assignments and other transactions contemplated by the
Omnibus Agreement, the Operating Partnership will be (i) the owner and holder of
the ground leasehold estate and ground lessee's interest in the land comprising
the Kilroy Airport Center Long Beach Property and the ground and air space
leasehold estates and ground and air space lessees' interests in the land
comprising the SeaTac Office Center Property,
9
<PAGE>
pursuant to the applicable ground or air space lease or leases set forth on
Schedule 2.16 hereto and (ii) the owner and holder of good, valid and marketable
- -------------
fee simple title to each of the Real Properties (other than the land described
in clause (i) and the Option Properties), in each case free and clear of all
Liens other than the Permitted Liens (as defined below). To the knowledge of
the Indemnitors, upon consummation of the assignments and other transactions
contemplated by each Option Properties Agreement, the Operating Partnership will
be the owner and holder of good, valid and marketable fee simple title to each
of the Option Properties subject thereto, in each case free and clear of all
Liens other than the Permitted Liens. For purposes hereof, the term "Permitted
Liens" shall mean:
(a) Liens, or deposits made to secure the release of such Liens,
securing taxes, the payment of which is not delinquent or the payment of which
is actively being contested in good faith by appropriate proceedings diligently
pursued;
(b) Zoning laws and ordinances generally applicable to the
districts in which the Real Properties are located which are not violated by the
existing structures or present uses thereof;
(c) Liens imposed by laws, such as carriers', warehousemen's and
mechanics' liens, and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due or
which are being contested in good faith by appropriate proceedings diligently
pursued;
(d) non-exclusive easements for public utilities, minor
encroachments, rights of access or other non-monetary matters that do not have a
material adverse effect upon, or materially interfere with the use of, the Real
Properties; and
(e) any exceptions contained in the title insurance policies
with respect to the Real Properties obtained in connection with the IPO and
acceptable to the representatives of the underwriters involved with the IPO.
2.9 Title to Personalty. To the knowledge of the Indemnitors, each
-------------------
Entity is, and upon consummation of the assignments and other transactions
contemplated by the Omnibus Agreement the Operating Partnership will be, the
owner and holder of good title to the Personalty (other than the Personalty
related to the Option Properties) owned by such Entity, in each case free and
clear of any Liens other than the Permitted Liens. To the knowledge of the
Indemnitors, each Entity is, and upon consummation of the assignments and other
transactions contemplated by each Option Properties Agreement the Operating
Partnership will be, the owner and holder of good title to the Personalty
related to the Option Properties subject thereto owned by such Entity, in each
case free and clear of any Liens other than the Permitted Liens.
10
<PAGE>
2.10 Debt; Solvency. (a) Except for the existing mortgage debt with
--------------
respect to each Real Property, as described on Schedule 2.10 attached hereto or
-------------
in the Registration Statement, no Grantor has any indebtedness other than
indebtedness incurred by it in its ordinary course of business (which in no case
exceeds $50,000 for any single Grantor or $100,000 in the aggregate). There
exists no default or, to the knowledge of the Indemnitors, any event which with
the passage of time or notice or both would constitute a default, with respect
to any indebtedness of any such person that has not been cured or waived. A
true, complete and correct copy of each loan and mortgage document with respect
to each Option Property has been delivered to the Operating Partnership or the
REIT.
(b) Each Grantor has been and will be solvent at all times prior
to and immediately following the transfer of its Interests to the Operating
Partnership in connection with the Transactions.
2.11 Financial Statements. The combined financial statements of the
--------------------
Kilroy Group (including the notes thereto) and schedule of the Kilroy Group and,
to the knowledge of the Indemnitors, the combined historical summaries of
certain revenues and certain expenses of the Acquisition Properties (including
the notes thereto) incorporated in the Registration Statement (collectively, the
"Financial Statements" and each, individually, a "Financial Statement") have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods specified. The combined
balance sheets in the Financial Statements fairly present the financial
condition of the Kilroy Group as of the dates shown and the combined income
statements and the combined cash flow statements in the Financial Statements
fairly present the results of operations and cash flows, respectively, of the
Kilroy Group for the periods indicated and, to the knowledge of the Indemnitors,
the combined historical summaries of certain revenues and certain expenses in
the Financial Statements fairly present certain revenues and certain expenses of
the Acquisition Properties for the periods indicated. There are no material
known encumbrances, debts, liabilities or obligations of any nature, whether
direct or indirect, contingent or non-contingent, or matured or unmatured of the
Kilroy Group that are not described in such Financial Statements.
2.12 Financial Condition. Since the date of the Financial Statements,
-------------------
there has been no material adverse change in the condition (financial or
otherwise), earnings, assets, business, affairs or business prospects of any
Grantor and no event has occurred or circumstance exists that may result in such
a material adverse change. No Grantor (i) is in receivership or dissolution,
(ii) has made an assignment for the benefit of creditors or admitted in writing
its inability to pay its debts as they mature, or (iii) has been adjudicated a
bankrupt or filed a petition in voluntary bankruptcy or a petition or answer
seeking reorganization or an arrangement with creditors under the federal
bankruptcy law or any other similar law or statute of the United States or any
jurisdiction and no such petition has been filed against any Grantor.
11
<PAGE>
2.13 Contracts. Except for (i) agreements relating to mortgage
---------
financing to be repaid on the Closing Date, (ii) the leases referred to in
Section 2.14 below, or (iii) the ground and air space leases referred to in
Section 2.15 below, Schedule 2.13 attached hereto lists all contracts or other
-------------
understandings, written or oral, to which any Grantor is a party or by which any
Grantor is bound that relate to the Properties or that will otherwise become
binding on the Operating Partnership, the REIT or the Services Company following
consummation of the Transactions (collectively, the "Contracts" and each, a
"Contract"). For purposes of this Section 2.13, "Contracts" means (a) contracts
which are required to be filed as exhibits to a registration statement or report
under Item 601 of Regulation S-K promulgated under the Securities Act and (b)
contracts or other understandings which are known to the Indemnitors and involve
performance of services or delivery of goods or materials of an amount or value
in excess $50,000 or were entered into by a Grantor other than in the ordinary
course of business. A true, complete and correct copy of each Contract
(including all amendments, modifications and supplements thereto) has been
delivered to the REIT or the Operating Partnership. To the knowledge of the
Indemnitors, each of the Contracts is valid and binding and is in full force and
effect. To the knowledge of the Indemnitors, no Grantor and no other party to
any Contract has breached or defaulted under the terms of such Contract or given
or received any notice of default of any provision of such Contract, except for
such breaches or defaults that would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), earnings,
assets, business affairs or business prospects of any Real Property, the Kilroy
Group's Business or, following the consummation of the Transactions, the REIT or
the Operating Partnership or on the Transactions. To the knowledge of the
Indemnitors, each of the Contracts will continue to be binding in accordance
with its terms following the consummation of the Transactions and is freely
assignable to the Operating Partnership.
2.14 Leases; Rent Rolls. A true, complete and correct copy of the
------------------
leases (including all amendments, modifications and supplements thereto) for
each Real Property (other than the ground and air space leases referred to in
Section 2.15 below) have been delivered to the REIT or the Operating
Partnership. The rent roll attached hereto as Schedule 2.14(a) for each Real
----------------
Property is a true, correct and complete schedule of all space leases, occupancy
agreements and licenses (and annexes and riders thereto) and tenants relating to
the Real Properties and was true and correct as of the date thereof, and there
have been no material changes to such rent roll since the date thereof. To the
knowledge of the Indemnitors, each of such leases is valid and binding and is in
full force and effect. To the knowledge of the Indemnitors, no party to any such
lease has breached or defaulted under the terms of such lease or given or
received any notice of default of any provision of any such lease, except for
such breaches or defaults as would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), earnings,
assets, business affairs or business prospects of any Real Property, the Kilroy
Group's Business or, following the consummation of the Transactions, the REIT or
the Operating Partnership or on the Transactions. No tenant under any such lease
has been granted a right to early termination of such lease, except as set forth
on Schedule 2.14(b) attached hereto. To the knowledge of the Indemnitors, each
----------------
of such leases will continue to
12
<PAGE>
be binding in accordance with its terms following the consummation of the
Transactions and is freely assignable to the Operating Partnership.
2.15 Ground and Air Space Leases. Schedule 2.15 attached hereto
--------------------------- -------------
lists all ground and air space leases held by Grantors with respect to the Real
Properties, and a true, complete and correct copy of each such ground and air
space lease (including all amendments, modifications and supplements thereto)
has been delivered to the REIT or the Operating Partnership. To the knowledge
of the Indemnitors, each of such ground and air space leases is valid and
binding and is in full force and effect. To the knowledge of the Indemnitors,
no party to any such ground or air space lease has breached or defaulted under
the terms of such lease or given or received any notice of default of any
provision of any such lease. To the knowledge of the Indemnitors, each of such
ground and air space leases will continue to be binding in accordance with its
terms following the consummation of the Transactions and is freely assignable to
the Operating Partnership.
2.16 Permits. To the knowledge of the Indemnitors, there exists for
-------
each Real Property, and the Grantors will convey to the Operating Partnership on
the applicable date of closing of the acquisition of a Real Property as set
forth in the Omnibus Agreement and in the Option Properties Agreements, all
certificates, licenses, permits, registrations and other authorizations from
federal, state or other governmental agencies, authorities or regulatory bodies
or political subdivisions (collectively, "Permits") as are necessary for the
ownership, use, occupancy, management, leasing, construction, operation and
licensing of such Real Property as it is currently being operated. To the
knowledge of the Indemnitors, all such Permits are in full force and effect and
no such Permit has been violated in any material respect. To the knowledge of
the Indemnitors, no Grantor has taken any action which, or failed to take any
action the omission of which, would result in the revocation of such Permits.
None of the Indemnitors has received notice of any intention of any such
granting authority to cancel, suspend or modify any of the Permits. To the
knowledge of the Indemnitors, the Permits are assignable to the Operating
Partnership. To the knowledge of the Indemnitors, neither the execution of this
Agreement nor the consummation of the Transactions will create any right of
termination, revocation or expiry on the part of any such granting authority.
2.17 Litigation; Moratoria, Etc. No claims, actions, suits,
--------------------------
proceedings or investigations have been instituted or, to the knowledge of the
Indemnitors, threatened against any Grantor, or any of the properties or rights
(including, without limitation, any Property) of any Grantor or that otherwise
relate to or may affect the business or any of the properties (including,
without limitation, any Property) of any Grantor, before or by any court,
administrative agency or body, or federal, state or other governmental agency,
authority or regulatory body, domestic or foreign, that would have a material
adverse effect on the condition (financial or otherwise), earnings, business,
affairs or business prospects of any Real Property, the Kilroy Group's Business
or, following the consummation of the Transactions, the REIT or the Operating
Partnership or on the Transactions. No Grantor or Real Property is subject to
any order, writ, judgment, injunction or decree of any court,
13
<PAGE>
tribunal or other federal, state or other governmental, agency, authority or
regulatory body (other than generally applicable laws, rules and regulations)
that would have a material adverse effect on the condition (financial or
otherwise), earnings, business, affairs or business prospects of any Real
Property, the Kilroy Group's Business or, following the consummation of the
Transactions, the REIT or the Operating Partnership or on the Transactions.
Except as disclosed in the Registration Statement, there is no pending or, to
the knowledge of the Indemnitors, threatened litigation, moratorium,
condemnation or eminent domain proceedings, zoning change, or other similar
proceeding or action, or private purchase in lieu of such a proceeding or
action, that is likely to in any manner affect the size of, use of, improvements
on, construction on, access to or availability of utilities or other necessary
services to, any Real Property, except such proceedings or actions that would
not, singly or in the aggregate, have a material adverse effect on the condition
(financial or otherwise), earnings, assets, business, affairs or business
prospects of or with respect to such Real Property, the Kilroy Group's Business
or, following the consummation of the Transactions, the REIT or the Operating
Partnership or on the Transactions.
(b) All claims, suits or proceedings asserted or instituted by
ACD2, a California corporation, or its affiliates or by Hughes Aircraft Company
or Hughes Electronic Corporation's Space & Communications Company or its
affiliates, in each case against any member of the Kilroy Group or its
affiliates either have been settled with prejudice or dismissed pursuant to a
final judgment with prejudice, the time for appeal therefrom having expired.
2.18 Compliance with Laws, Etc. To the knowledge of the Indemnitors,
-------------------------
no Grantor or proper representative thereof has received any written or other
notice of any violation of any applicable law, regulation, rule, order or code
(including, without limitation, any zoning code, building code, or similar law,
regulation or ordinance, or any employment, environmental, health or other
regulatory law, order, regulation, or requirement) or any recorded covenant,
easement, restriction or similar agreement or instrument, relating to a Real
Property which remains uncured, or has received any written or other notice that
any investigation has been commenced or is contemplated respecting any such
possible violation, and, to the knowledge of the Indemnitors, there are no such
violations which, individually or in the aggregate, would have a material
adverse effect on the condition (financial or otherwise), earnings, business,
affairs or business prospects of any Real Property, the Kilroy Group's Business
or, following the consummation of the Transactions, the REIT or the Operating
Partnership or on the Transactions.
2.19 Taxes, Utilities, Etc. (a) All tax or information returns for
---------------------
all periods ending on or before or including the Closing Date that are or were
required to be filed by or on behalf of any Grantor have been or will be filed
on a timely basis and in accordance with all applicable laws, regulations and
administrative requirements. All such tax or information returns that have been
filed on or before the Closing Date were, when filed, and continue to be, true,
correct and complete. All such tax or information returns that will
14
<PAGE>
be filed after the Closing Date will be true, correct and complete when filed by
or on behalf of such Grantor.
(b) There is no action, suit or proceeding pending against, or
with respect to, any Grantor or Property in respect of any tax (other than tax
abatement proceedings) nor is any claim for additional tax asserted by any
taxing authority. No Grantor has given or been requested to give waivers or
extensions (or is or would be subject to a waiver or extension given by any
other person) of any statute of limitations relating to the payment of taxes for
which such Grantor may be liable.
(c) Grantors have paid, or made provision for the payment of,
all taxes (other than transfer taxes incurred in connection with the
Transactions) that have or may become due for all periods ending on or before or
including the Closing Date, including, without limitation, all taxes reflected
on the tax returns referred to in this Section 2.19, or in any assessment or
notice (either formal or informal) received by Grantors or any affiliated party
with respect to any Grantor, except such taxes as are set forth in Schedule
--------
2.19(c) that are being contested in good faith and as to which adequate
- -------
reserves (determined in accordance with generally accepted accounting principles
consistently applied) have been provided. All taxes (other than transfer taxes
incurred in connection with the Transactions) that the Grantors are or were
required by law to withhold or collect have been duly withheld or collected and,
to the extent required, have been paid to the appropriate governmental
authority. There are no Liens with respect to taxes upon any of the properties
or assets of the Grantors.
(d) There is no existing tax sharing agreement to which any
Grantor is a party that may or will require that any payment be made by Grantors
or any of their affiliates on or after the date hereof.
(e) No amounts due and owing with respect to any Real Property
in connection with utilities, insurance, assessments or other charges
customarily prorated in real estate transactions have been outstanding.
(f) The Transactions will not result in any tax liability to the
REIT or the Operating Partnership, other than customary documentary real estate
transfer taxes with respect to Real Properties located in California in an
amount not to exceed [$1.10 per $1,000] in value of real property.
2.20 Insurance. Each Entity, as applicable, currently has in place,
---------
and upon consummation of the Transactions the REIT will have in place, the
public liability, casualty and other insurance coverage with respect to its Real
Property as is required by the applicable mortgage financing documents which may
be assumed by the REIT or the Operating Partnership if any of the Option
Properties is acquired by the Operating Partnership and the applicable mortgage
financing documents to be placed by the REIT or the Operating Partnership on any
Real Property (as described in the Registration Statement)
15
<PAGE>
and as would otherwise customarily be carried by owners or operators of projects
similar to the Real Properties in the markets in which such Real Properties are
located. Each insurance policy with respect to a Real Property currently in
place is, and each insurance policy with respect to a Real Property which will
be in place upon consummation of the Transactions will be on such date, in full
force and effect and all premiums due and payable thereunder have been or will
be (as the case may be) fully paid when due. None of the Indemnitors has
received from any insurance company notice of any material defects or
deficiencies affecting the insurability of any Real Property or any notices of
cancellation or intent to cancel any such insurance.
2.21 Employees. The employees listed on Schedule 2.21 attached
--------- -------------
hereto constitute all of the employees used in the operation of the Kilroy
Group's Business in a manner consistent with its historic operations up to the
Closing Date. Except for ______________________ [INSERT NAMES], all such persons
earn less than $______________ per annum, are entitled to no more than
______________ weeks of vacation per annum and are not entitled to any profit
sharing, severance pay or any health or benefit plans or arrangements other than
those substantially similar to ________________ plan which is described on
Schedule 2.21. Except as set forth on Schedule 2.21, there are no (a) union
- ------------- -------------
contracts, collective bargaining agreements or other written agreements in
respect of any employees and no verbal agreements requiring employment for any
specified period of time or under which employment cannot be terminated without
cause upon reasonable notice, (b) accrued or retroactive wage or salary
increases or pension or other benefits to which any employee is entitled, and
(c) profit sharing, bonus, deferred compensation, incentive compensation, stock
purchase, stock option, severance or termination pay, hospitalization or other
medical, life or other insurance, supplemental unemployment benefits, pension,
retirement or other benefit plans or "employee benefit plans" (withing the
meaning of Section 3(3) of ERISA), and no Grantor or affiliate thereof has
contributed to any "multiemployer plan" (within the meaning of Section 3(37) of
ERISA) during the five years preceding the date of this Agreement. All of the
employees listed on Schedule 2.21 have been paid in full to their last payment
-------------
period, in accordance with the terms of their respective employment agreements,
if any, all payroll taxes and other taxes, fees and charges in connection with
such employees have been paid to such date, and no employee has accrued vacation
time in excess of ________ days. Other than a $200,000 bonus payable to Richard
E. Moran Jr. if the IPO is consummated on or before June 30, 1997, no other
employee of the Kilroy Group or of the REIT or the Operating Partnership is or
will be entitled to receive a bonus in connection with the IPO.
[NOTE: ADDITIONAL REPRESENTATIONS CONCERNING ERISA PLANS MAY BE REQUIRED BASED
ON ITEMS DISCLOSED ON SCHEDULE.]
2.22 Environmental. To the knowledge of each Indemnitor, except as
-------------
set forth on Schedule 2.22 and in the Registration Statement:
-------------
16
<PAGE>
(a) no Hazardous Substances (as defined below) are present in
the Environment (as defined below) at any Real Property in amounts or
concentrations that would have a material adverse effect on the condition
(financial or otherwise), earnings, assets, business, affairs or business
prospects of any Real Property, the Kilroy Group's Business or, following the
consummation of the Transactions, the REIT or the Operating Partnership or on
the Transactions;
(b) no Grantor has caused or allowed any discharging or disposal
of any Hazardous Substance or pollutant into the Environment at any Real
Property in violation of any Environmental Law (as defined below) applicable to
such Real Property in an amount or concentration that would have a material
adverse effect on the condition (financial or otherwise), earnings, assets,
business, affairs, or business prospects of any Real Property, the Kilroy
Group's Business or, following the consummation of the Transactions, the REIT or
the Operating Partnership or on the Transactions;
(c) no Grantor has received any notice of a claim under or
pursuant to any Environmental Law applicable to a Real Property pertaining to
Hazardous Substances on any Real Property or pertaining to other property at
which Hazardous Substances generated at any Real Property have come to be
located, which claim would have a material adverse effect on the condition
(financial or otherwise), earnings, assets, business, affairs, or business
prospects of any Real Property, the Kilroy Group's Business or, following the
consummation of the Transactions, the REIT or the Operating Partnership or on
the Transactions;
(d) no Grantor has received any notice from any Governmental
Authority (as defined below) claiming any violation of any Environmental Law at
any Real Property that is uncured or unremediated as of the date hereof, which
violation would have a material adverse effect on the condition (financial or
otherwise), earnings, assets, business, affairs, or business prospects of any
Real Property, the Kilroy Group's Business or, following the consummation of the
Transactions, the REIT or the Operating Partnership or on the Transactions;
(e) no Real Property (A) is included in the National Priorities
List issued pursuant to CERCLA (as defined below) by the United States
Environmental Protection Agency (the "EPA") or in the Comprehensive
Environmental Response, Compensation and Liability Information System database
maintained by the EPA or (B) is included in any similar list of potentially
contaminated sites pursuant to any other applicable Environmental Law, and no
Grantor has received any written notice from the EPA or any other Governmental
Authority proposing the inclusion of any Real Property on such list;
(f) all reports of environmental surveys, audits, investigations
and assessments relating to the Real Properties have been disclosed to the
Operating Partnership or the REIT; and
17
<PAGE>
(g) except as would not have a material adverse effect on the
condition (financial or otherwise), earnings, assets, business, affairs, or
business prospects of any Real Property, the Kilroy Group's Business or,
following the consummation of the Transactions, the REIT or the Operating
Partnership or on the Transactions, all permits and licenses required under any
Environmental Law with respect to the Real Properties have been obtained and the
Real Properties are in compliance with the terms and conditions of such permits
and licenses.
As used in this Section 2.22, "Hazardous Substance" shall mean
asbestos containing materials, polychlorinated biphenyls or any hazardous
substance, hazardous material, hazardous waste, toxic substance, toxic material,
toxic waste, oil, petroleum, or petroleum-derived substance or waste, listed or
regulated under the Comprehensive Environmental Response, Compensation and
Liability Act, as amended (42 U.S.C. (S)(S) 9601 et seq.) ("CERCLA"), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. (S)(S) 6901, et
seq.) ("RCRA"), or any other Environmental Law affecting the Real Properties;
"Environment" shall mean any ambient air, surface water, ground water, land
surface, or subsurface strata located at, on, or under the Real Properties;
"Environmental Law" shall mean CERCLA, RCRA, the Clean Air Act, as amended (42
U.S.C. (S)(S) 7401 et seq.), or the Clean Water Act, as amended (33 U.S.C.
(S)(S) 1251 et seq.), together with all laws, rules, regulations, statutes,
ordinances and orders promulgated thereunder and all other federal, state and
local laws, relating to the protection of the environment or the safety and
health of persons from exposure to any actual or potential release, removal,
discharge or emission of Hazardous Substances; "Governmental Authority" shall
mean any federal, state or local governmental office, agency or authority having
the duty or authority to promulgate, implement or enforce any Environmental Law.
2.23 Condition of Property; No Alterations. To the knowledge of the
-------------------------------------
Indemnitors, there is no material defect in the condition of any Real Property,
nor any material damage from uninsured casualty or other cause, nor any soil
condition of any such Real Property that will not support all of the
improvements thereon without the need for unusual or new subsurface excavations,
fill, footings, caissons or other installations, except for any such defect,
damage or condition that has been corrected or will be corrected in the ordinary
course of the business of such Real Property as part of its scheduled annual
maintenance and improvement program. Except as set forth on Schedule 2.23
-------------
attached hereto, to the knowledge of the Indemnitors, no Grantor has any
agreement or other arrangement with any governmental authority or any other
person to make capital improvements with respect to any Real Property. To the
knowledge of the Indemnitors, there have been no alterations to the exteriors of
any of the buildings or other improvements on any Real Property that would
render any surveys provided to the Operating Partnership or the REIT in
connection with the Transactions grossly inaccurate or otherwise reflect a
material deficiency in title to such improvements.
2.24 Non-Foreign Status. No Grantor is a foreign person, foreign
------------------
corporation, foreign partnership, foreign trust or foreign estate (as defined in
the Code),
18
<PAGE>
and, therefore, no Grantor is subject to the provisions of the Code relating to
the withholding of sales proceeds to foreign persons.
2.25 Mechanics' Liens. All material bills and claims for labor
----------------
performed and materials furnished to or for the benefit of the Real Properties
have been paid in full (or otherwise provided for), and there are no mechanics'
or materialmen's liens (whether or not perfected) affecting the Real Properties
which, individually or in the aggregate, would have a material adverse effect on
the condition (financial or otherwise), earnings, business, affairs or business
prospects of any Real Property, the Kilroy Group's Business or, following the
consummation of the Transactions, the REIT or the Operating Partnership or on
the Transactions.
2.26 Trademarks and Tradenames; Proprietary Rights. To the
---------------------------------------------
knowledge of the Indemnitors, there are no actions or other judicial or
administrative proceedings involving any Grantor, Entity or Property outstanding
or threatened that concern any copyrights, copyright application, trademarks,
trademark registrations, trade names, service marks, service mark registrations,
trade names and trade name registrations or any trade secrets (the "Proprietary
Rights") being transferred to the Operating Partnership in connection with the
Transactions or involving the "Kilroy" name. To the knowledge of the
Indemnitors, there are no patents or patent applications relating to the
operation of the Properties or the Kilroy Group's Business as conducted prior to
the Closing.
(b) The Grantors have the right and authority to use the
"Kilroy" name, and, to the knowledge of the Indemnitors, the right and authority
to use each Proprietary Right being transferred to the REIT or the Operating
Partnership in connection with the Transactions necessary, in connection with
the operation of the Properties and the Kilroy Group's Business in the manner in
which it is currently used. The Grantors have the right and authority to
license such right and authority with respect to the "Kilroy" name to the REIT
and the Operating Partnership and, to the knowledge of the Indemnitors, the
Grantors have the right and authority to convey such right and authority with
respect to such Proprietary Rights to the REIT and the Operating Partnership, in
each case in connection with the Transactions. The current use of the "Kilroy"
name, and, to the knowledge of the Indemnitors, each such Proprietary Right,
does not, and such use did not, conflict with, infringe upon or violate any
copyright, trade secret, trademark or registration of any other person.
(c) To the knowledge of the Indemnitors, there are no
outstanding or threatened disputes or disagreements with respect to any
Proprietary Right being transferred to the Operating Partnership in connection
with the Transactions, the "Kilroy" name or any license, contract, agreement or
other commitment, written or oral, relating to the same.
2.27 No Misrepresentations. No representation, warranty or statement
---------------------
made, or information provided, by the Indemnitors in this Agreement or the
Grantors in the Consents and Power of Attorney, the Omnibus Agreement or the
Option Properties
19
<PAGE>
Agreements or in any other document or instrument furnished or to be furnished
by or on behalf of the Grantors pursuant thereto or as contemplated thereby (i)
contains or will contain any untrue statement of a material fact or (ii) omits
or will omit to state a material fact necessary to make statements contained
herein or therein not misleading.
2.28 Prior Real Property Developments. The real property
--------------------------------
developments set forth on Schedule 2.28 attached hereto constitute all real
-------------
property development work that any member of the Kilroy Group or its affiliates
has performed since January 1, 1992.
2.29 Foreclosures. Except as described in the Registration
------------
Statement, no foreclosures have been instituted, and to the knowledge of the
Indemnitors none are currently threatened, with respect to any property or
assets (including the Properties) directly or indirectly owned (whether now or
in the past) by any member of the Kilroy Group or its affiliates.
2.30 Bankruptcy. (a) No proceeding or filing of a petition seeking
----------
relief under Title 11 of the United Sates Code or any other federal, state or
foreign bankruptcy, insolvency, liquidation or similar law has been commenced or
instituted (whether voluntary or involuntary) by or with respect to any member
of the Kilroy Group or its affiliates, (b) no member of the Kilroy Group or
affiliates thereof has applied for or consented to the appointment of a
receiver, trustee, custodian, sequestrator or similar official for any such
persons or for a substantial part of any such persons' property or assets and
(c) no member of the Kilroy Group or affiliates thereof has made a general
assignment for the benefit of its creditors.
2.31 Formation Transactions. Each of the transactions constituting
----------------------
the Formation Transactions (as defined in the Registration Statement) has
occurred, or, if contemplated in the Registration Statement to occur subsequent
to the Closing Date, will occur in the manner described in the Registration
Statement.
2.32 Termination of Falck. Randall Falck's employment with KI was
--------------------
terminated on October 31, 1996. Mr. Falck is not employed by any other member
of the Kilroy Group. Any and all claims of Mr. Falck against KI or any other
member of the Kilroy Group or its affiliates in connection with the termination
of his employment with KI and the related repurchase of his interests in certain
Properties and certain entities affiliated with the Kilroy Group have been
settled with prejudice pursuant to a Settlement Agreement and Mutual General
Release between KI and Randall Falk and Penny Falk effective as of January 8,
1997. A true, complete and correct copy of such Settlement Agreement has been
delivered to the REIT. Such Settlement Agreement is valid and binding and in
full force and effect and has not been amended. No party to such Settlement
Agreement has breached or defaulted under the terms of such Settlement Agreement
or given or received any notice of default of any provision of such Settlement
Agreement. Mr. Falk has no right to receive any property, other than cash
payable pursuant to the terms of such Settlement Agreement, in connection with
such termination of employment and repurchase of interests.
20
<PAGE>
2.33 Development Obligations. Except as described in the Registration
-----------------------
Statement or on Schedule 2.33 attached hereto, (a) no Grantor has any material
-------------
obligations or liabilities which remain to be performed or fulfilled under or in
connection with (i) the Development Management Agreement with respect to the
Riverside Judicial Center or (ii) the Agreement to Provide Real Estate Services
and Exclusive Broker Employment Agreement, each with respect to the property
located in the City of Pico Rivera which currently serves as Northrop Grumman's
headquarters for certain activities, and (b) no Grantor has any obligation to
make a material investment in additional infrastructure improvements with
respect to Kilroy Long Beach Phases III and IV.
3. Additional Representations and Warranties with Respect to the
-------------------------------------------------------------
Indemnitors. Each Indemnitor hereby further represents and warrants to the REIT
- -----------
and the Operating Partnership as follows:
3.1 Authority Relative to this Agreement. Each Indemnitor has the
------------------------------------
requisite power and authority and, with respect to each Indemnitor who is a
natural person, full legal right and capacity, to execute and deliver this
Agreement and to perform it or his obligations under this Agreement. All action
of each Indemnitor necessary to authorize the execution, delivery and
performance of this Agreement by such Indemnitor has been taken, and no other
proceedings on the part of such Indemnitor are necessary to authorize the
execution and delivery by such Indemnitor of this Agreement and the consummation
by such Indemnitor of the transactions contemplated hereunder. Neither the
execution and delivery of this Agreement by such Indemnitor, nor the
consummation by such Indemnitor of the transactions contemplated hereunder, nor
performance by such Indemnitor of any of its or his obligations under this
Agreement does or will (i) conflict with or result in a violation or any breach
of any provisions of the Organizational Documents, as applicable, of such
Indemnitor, (ii) conflict with, result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, easement, restriction, contract, agreement or other instrument
or obligation to which such Indemnitor is a party or is subject or by which such
Indemnitor or any of its properties or other assets may be bound, or (iii)
conflict with or violate any provision of any law, statute, rule or regulation
or any judgment, order, writ, injunction, decree, rule or regulation of any
court or federal, state or other governmental agency, authority or regulatory
body applicable to such Indemnitor or any of its properties or other assets or
result in the creation of any Lien upon the Properties or such Indemnitor's
Interest.
3.2 Binding Obligation. This Agreement has been duly and validly
------------------
executed and delivered by each Indemnitor and constitutes a legal, valid and
binding obligation of such Indemnitor, enforceable against such Indemnitor in
accordance with its terms.
21
<PAGE>
3.3 Consents and Approvals. No consent, waiver, approval,
----------------------
authorization or other action of, or filing or registration with, any federal,
state or other governmental agency, authority or regulatory body or any other
person is required to be obtained in connection with the execution, delivery and
performance of this Agreement, except any of the foregoing that shall have been
obtained and are in full force and effect.
3.4 Registration Statement. The Indemnitors have reviewed the
----------------------
Registration Statement and represent and warrant that it did not, when it was
declared effective, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading.
The Indemnitors have reviewed each preliminary prospectus provided to the
underwriters for use in connection with the issuance and sale of the REIT's
common stock in the IPO and the final prospectus in connection with the IPO and
represent and warrant that each such preliminary prospectus and final prospectus
did not, when it was filed with the Commission, (i) contain any untrue statement
of a material fact or (ii) omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. This Section 3.4 does not apply to statements or
omissions made in the Registration Statement or any preliminary or final
prospectus in connection with the IPO in reliance upon and in conformity with
written information furnished by the underwriters involved in the IPO.
4. Indemnity, Limitations on Liability. Subject to the terms hereof, the
-----------------------------------
Indemnitors hereby agree to indemnify and hold harmless the REIT and the
Operating Partnership (each, a "Covered Party") from any damage, expense, loss,
cost, claim or liability (each a "Claim") suffered or incurred by any Covered
Party as a result of (i) any inaccuracy in any representation or warranty
contained herein, in any Grantor Agreement or in the Pledge Agreement, (ii) any
breach or nonfulfillment by any Grantor of any of its covenants, agreements or
other obligations contained in or made pursuant to any Grantor Agreement or the
Pledge Agreement and (iii) any Excluded Liability. Notwithstanding anything to
the contrary contained in this Agreement, the liability of the Indemnitors
hereunder shall be joint and several; provided, however, that John B. Kilroy,
-------- -------
Sr. and John B. Kilroy, Jr. shall not be liable for any inaccuracy in the
representations and warranties set forth in Sections 2.1, 2.2, 2.3, 2.4, 3.1,
3.2 and 3.3 hereof to the extent only that such representations and warranties
pertain to John B. Kilroy, Jr. as an individual or John B. Kilroy, Sr. as an
individual, respectively; provided, further, that recourse against the
-------- -------
Indemnitors shall, so long as the REIT shall have a valid, first priority
perfected lien on and security interest in the Collateral described in the
Pledge Agreement referred to in Section 5 hereof, be limited to the rights of
the Indemnitors in such Collateral.
5. Pledge of Units.
---------------
5.1 Pledge Agreement. As security for the full and timely
----------------
performance of their indemnification obligations hereunder, the Indemnitor,
agree to execute and deliver a Pledge Agreement and the documents referred to
therein (the "Pledge Agreement") in the
22
<PAGE>
form of Exhibit D attached hereto and to make the deliveries and perform the
---------
obligations required thereunder.
5.2 Agent for Pledgees.
------------------
(a) Appointment. Each Covered Party hereby designates and
-----------
appoints the REIT as its agent under the Pledge Agreement, and each Covered
Party hereby irrevocably authorizes the REIT to take such action or to refrain
from taking such action on its behalf under the provisions of the Pledge
Agreement and to exercise such powers as are set forth therein, together with
such other powers as are reasonably incidental thereto. The REIT is authorized
and empowered to amend, modify or waive any provisions of the Pledge Agreement
on behalf of the Covered Parties. The REIT agrees to act as such on the express
conditions contained in this Section 5.2. The provisions of this Section 5.2 are
solely for the benefit of the REIT and the Covered Parties and no Indemnitor
shall have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under the Pledge Agreement, the
REIT shall act solely as an administrative representative of the Covered Parties
and does not assume and shall not be deemed to have assumed any obligation
toward or relationship of agency or trust with or for the Covered Parties, by or
through its agents or employees.
(b) Duties; Rights; Exculpation; Etc. The REIT shall have no
--------------------------------
duties, obligations or responsibilities to the Covered Parties except those
expressly set forth in this Section 5.2 or in the Pledge Agreement. Neither the
REIT nor any of its officers, directors, employees or agents shall be liable to
any Covered Party for any action taken or omitted by them under this Section 5.2
or under the Pledge Agreement, or in connection with this Section 5.2 or the
Pledge Agreement, except that the REIT shall be obligated on the terms set forth
in this Section 5.2 for performance of its express obligations under the Pledge
Agreement. In performing its functions and duties under the Pledge Agreement,
the REIT shall exercise the same care which it would exercise in dealing with a
security interest in collateral held for its own account, but the REIT shall not
be responsible to any Covered Party for any recitals, statements,
representations or warranties in the Pledge Agreement or for the execution,
effectiveness, genuineness, validity, enforceability or sufficiency of the
Pledge Agreement or the Collateral or the transactions contemplated thereby.
The REIT shall not be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of the
Pledge Agreement, or the existence or possible existence of any Event of Default
(as defined in the Pledge Agreement).
(c) Reliance. The REIT shall be entitled to rely upon any
--------
written notices, statements, certificates, orders or other documents or any
telephone message or other communication (including any writing, telex, telecopy
or telegram) believed by it in good faith to be genuine and correct and to have
been signed, sent or made by the proper person, and with respect to all matters
pertaining to this Section 5.2 and the Pledge Agreement and its duties under
this Section 5.2 or the Pledge Agreement, upon advice of
23
<PAGE>
counsel selected by it. The REIT shall be entitled to rely upon the advice of
legal counsel, independent accountants, and other experts selected by the REIT
in its sole discretion.
(d) Indemnification. Each Covered Party, jointly and
---------------
severally, reimburse and indemnify the REIT and its directors, officers,
employees and agents for any damage, expense, loss, cost, claim or liability
which may be imposed on, incurred by, or asserted against the REIT or such other
persons in any way relating to or arising out of this Section 5.2 or the Pledge
Agreement or any action taken or omitted by the REIT or such other persons under
this Section 5.2 or the Pledge Agreement. The obligations of the Covered
Parties under this Section 5.2(d) shall survive the termination of the Survival
Period, the return of any Collateral and the termination of this Agreement and
the Pledge Agreement.
(e) Other Business. The Covered Parties acknowledge and agree
--------------
that the REIT may exercise its rights and powers under other agreements and
instruments to which it is or may be a party, and engage in other transactions
and any kind of business with the Indemnitors or their affiliates, as though it
were not the agent of the Covered Parties under the Pledge Agreement.
6. Survival; Agreements Regarding Certain Claims. It is the express
---------------------------------------------
intention and agreement of the parties hereto that the representations,
warranties and indemnities set forth in this Agreement shall survive the closing
of the IPO for a period (the "Survival Period") commencing on the date hereof
and ending on the later of (a) June 30, 1998 and (b) the ninetieth day after the
date of delivery to the REIT's Board of Directors of audited financial
statements of the REIT for the REIT's first full fiscal year following the IPO
and (except as specifically provided below in this Section 6) shall expire and
be terminated and extinguished forever at such time, except with respect to
claims asserted against any Indemnitor in good faith pursuant hereto by written
notice from any or all of the Covered Parties to such Indemnitor at any time
within the Survival Period. Any written notice given within the Survival Period
must set forth the nature and details of the Claim with reasonable specificity
(to the extent then known) in order to constitute a valid notice pursuant to the
preceding sentence. Each Covered Party agrees that, in the event that such
Covered Party could reasonably make any claim with respect to a matter covered
by this Agreement under any existing policy of insurance or against any Grantor
under a Grantor Agreement, such Covered Party shall, prior to taking any action
hereunder against any Indemnitor, make a claim under such policy or against such
Grantor and thereafter shall use reasonable efforts to prosecute such claim to
completion; provided, however, that from and after (i) the time that notice is
-------- -------
given to an Indemnitor that a Claim exists but that coverage therefor is being
sought from an insurer or Grantor under a Grantor Agreement and that no action
or (in accordance with the preceding proviso) limited action is being taken
against such Indemnitor (provided such notice is given within the Survival
Period) through and including (ii) thirty days after the date of abandonment (by
non-prosecution or otherwise) of such Claim against such carrier or Grantor (or
other final disposition of such Claim) or, if earlier, the applicable
limitations period for such claim, the Survival Period with respect to
24
<PAGE>
that Indemnitor and that Claim only and no other Claim (other than other Claims
satisfying the conditions of this proviso) shall be stayed, as necessary, to
preserve such Covered Party's rights against such Indemnitor under this
Agreement. The amounts recovered under an insurance policy or from any Grantor
with respect to any Claim shall be credited against the Indemnitors' liability
with respect to such Claim.
7. Miscellaneous.
-------------
7.1 Notices. All notices, demands, requests or other communications
-------
which may be or are required to be given or made either by the Indemnitors, on
the one hand, or the REIT or the Operating Partnership, on the other hand,
pursuant to this Agreement shall be in writing and shall be hand delivered or
transmitted by certified mail (return receipt requested), express overnight mail
or delivery service, telegram, telex or facsimile transmission to the parties at
the following addresses:
If to any Indemnitor, to: c/o Kilroy Industries
2250 East Imperial Highway
El Segundo, California 90245
Attn: ___________________
Fax: (___) ___-____
With a copy to: ________________________
________________________
________________________
________________________
If to the REIT or the
Operating Partnership to: 2250 East Imperial Highway
El Segundo, California 90245
Attn: ____________________
Fax: (___) ___-____
With a copy to: Edward Sonnenschein, Jr., Esq.
Latham & Watkins
633 West Fifth Street
Los Angeles, California 90071
Fax: (213) 891-8763
or to such other address in the United States of America as the addressee may
indicate by written notice to the other party in conformance with this Section
7.1.
Each notice, demand, request or communication which shall be given or
made in the manner described above shall be deemed sufficiently given or made
for all purposes at such time as it is delivered to the addressee (with the
delivery receipt, the
25
<PAGE>
affidavit of messenger or (with respect to a telex) the answer back being deemed
conclusive but not exclusive evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
7.2 Further Assurances. The Indemnitors shall duly execute and
------------------
deliver, or cause to be duly executed and delivered, to the REIT or the
Operating Partnership (as applicable) such further instruments and documents and
take and cause to be taken such further actions as may be necessary or proper in
the reasonable opinion of the REIT or the Operating Partnership to cause the
Operating Partnership to be (a) (i) the owner and holder of the ground leasehold
estate and ground lessee's interest in the land comprising the Kilroy Airport
Center Long Beach Property and the ground and air space leasehold estates and
ground and air space lessees' interests in the land comprising the SeaTac Office
Center Property and (ii) the owner and holder of good, valid and marketable fee
simple title to each of the Real Properties (other than the land described in
clause (i)), in each case pursuant to the terms of the Omnibus Agreement or the
Option Properties Agreement (as applicable) and free and clear of all Liens
other than the Permitted Liens and (b) the owner and holder of good title to the
Personalty pursuant to the terms of the Omnibus Agreement or the Option
Properties Agreements (as applicable), free and clear of any Liens other than
the Permitted Liens.
7.3 Benefit and Assignment. No party hereto shall assign this
----------------------
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of the Indemnitor (if the assignor is the
Operating Partnership or the REIT) or of the Operating Partnership and the REIT
(if the assignor is any Indemnitor); and any purported assignment contrary to
the terms hereof shall be null, void and of no force and effect; provided,
--------
however, in the event that the Operating Partnership transfers title to any
- -------
Property to the Services Company and/or any direct or indirect subsidiary of the
REIT or the Operating Partnership, the rights, remedies and indemnities of the
Operating Partnership hereunder relating to any Property the title of which is
transferred shall automatically run to the benefit of the Services Company
and/or any such subsidiary and each such transferee shall be deemed to be a
Covered Party. In the event that the Operating Partnership transfers title to
any Property as described in the proviso of the foregoing sentence, such
transferee shall agree in writing that the REIT shall act as its agent under the
Pledge Agreement in accordance with Section 5.2 hereof. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns as permitted hereunder. No person or entity
other than the parties hereto is or shall be entitled to bring any action to
enforce any provision of this Agreement against any of the parties hereto, and
the covenants and agreements set forth in this Agreement shall be solely for the
benefit of, and shall be enforceable only by, the parties hereto or their
respective successors and assigns as permitted hereunder.
7.4 Entire Agreement; Amendment. This Agreement contains the final
---------------------------
and entire agreement between the parties hereto with respect to the subject
matter hereof and is intended to be an integration of all prior negotiations and
understandings. The
26
<PAGE>
parties to this Agreement shall not be bound by any terms, conditions,
statements, warranties or representations, oral or written, not contained or
referred to herein or therein. No change or modification of this Agreement shall
be valid unless the same is in writing and signed by all of the parties hereto.
7.5 GOVERNING LAW. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
-------------
PARTIES HERETO AND ANY CLAIMS OR DISPUTES RELATING THERETO SHALL BE GOVERNED BY
AND CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA.
7.6 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument.
7.7 Definition of Knowledge. As used herein, "to the knowledge" of
-----------------------
an Indemnitor means the actual knowledge of an individual Indemnitor.
27
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered on its behalf as of the date first
above written.
KILROY REALTY, L.P.
By: Kilroy Realty Corporation,
its General Partner
By: _______________________________
Name:
Title:
KILROY REALTY CORPORATION
By: _______________________________
Name:
Title:
INDEMNITORS:
KILROY INDUSTRIES
By: _______________________________
Name:
Title:
___________________________________
John B. Kilroy, Sr.
___________________________________
John B. Kilroy, Jr.
28
<PAGE>
SCHEDULE 1
LIABILITIES NOT ASSUMED
-----------------------
1. All obligations to fund tenant improvements and leasing commissions
pursuant to leases signed during the period commencing on October 1, 1996
and ending on December 20, 1996.
2. Any compensation payable to an officer or employee of the REIT or any of
its subsidiaries for his or her services in connection with the IPO,
including, without limitation, a $200,000 bonus payable to Richard E. Moran
Jr. if the IPO is consummated on or before June 30, 1997.
3. All liabilities in connection with the termination of employees by any
member of the Kilroy Group.
4. Other than as set forth in the September 30, 1996 pro forma condensed
consolidated balance sheet of the REIT included in the Registration
Statement, all liabilities in connection with actions taken by the Kilroy
Group to effect the Transactions and the IPO.
5. All liabilities in connection with development projects of the Kilroy Group
other than the Properties (including Kilroy Airport Center Long Beach
Phases III and IV).
6. All liabilities in connection with the construction of a freeway on-ramp at
the Kilroy Airport Center in El Segundo Property.
7. All mechanics' or materialmens' liens outstanding with respect to the
Properties.
8. All taxes other than real property taxes that are not by their terms past
due.
29
<PAGE>
EXHIBIT 10.26
PROPERTY MANAGEMENT AGREEMENT
BETWEEN
KILROY REALTY FINANCE PARTNERSHIP, L.P., a Delaware united partnership, as Owner
AND
KILROY REALTY, L.P., a Delaware limited partnership, as Manager
Dated as of ___ 1997
<PAGE>
PROPERTY MANAGEMENT AGREEMENT
THIS PROPERTY MANAGEMENT AGREEMENT (the "AGREEMENT") is made as of January
__, 1997 (the "COMMENCEMENT DATE"), between Kilroy Realty Finance Partnership,
L.P., a Delaware united partnership ("OWNER") and KILROY REALTY, L.P., a
Delaware limited partnership ("MANAGER").
BACKGROUND
A. Owner owns, directly or indirectly, or leases certain real property
(including the improvements, if any, thereon) as set forth in Exhibit "A"
----------
hereto, each such property is referred to herein as a "Property" and all are
collectively referred to as "Properties."
B. Owner desires to obtain the services of Manager, on an "independent
contractor" basis, with complete authority and control over the supervision,
management and operation of each Property, to be the sole and exclusive
manager/operator of the Property, pursuant to the terms of this Agreement, and
to have the exclusive authority and control to (i) operate and manage the
buildings and improvements located within each Property, and perform any and all
other management functions necessary for the orderly, safe and efficient
management/operation of each the Properties, (ii) perform or cause to be
performed all necessary repairs, maintenance and services for the Properties,
including but not limited to the common areas, and improvements thereon, (iii)
obtain and maintain adequate insurance coverage for the Properties, (iv) perform
all management obligations of Owner as landlord under all leases by and between
Owner and tenants within the Properties, (v) perform all obligations of Owner as
a tenant or landlord under any ground lease affecting the Properties, (vi)
perform all obligations of Owner as a mortgagor under any mortgages encumbering
all or a part of the Properties, and (vii) perform all obligations of Owner as a
party to easements and other agreements affecting the Properties, including, but
not limited to, assuming Owners's obligations as successor in interest to
developer under Reciprocal Easement Agreements ("REAs"), which shall mean any
reciprocal easement agreement to which the Owner is a party, or has become party
by operation of law as a result of succeeding to the interest of the developer
of the Property.
C. Manager desires to assume such responsibility and to perform such
services, pursuant to the terms and conditions of this Agreement, as hereinafter
set forth.
D. Concurrently herewith Owner has entered into that certain Indenture of
Mortgage, Deed of Trust, Security Agreement, Financing Statement, Fixture Filing
and Assignment of Leases, Rents and Security Deposits dated as of January ___,
1997, between Morgan Guaranty Trust Company of New York ("Lender") and Owner
(herein, together with all amendments and supplements thereto, the "Mortgage").
E. All capitalized terms used in this Agreement and not defined in this
Agreement shall have the meanings ascribed to them in the Partnership Agreement.
2
<PAGE>
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I.
DUTIES OF MANAGER
Subject to the provisions and during the effective term of this Agreement,
Owner hereby appoints Manager and Manager hereby accepts appointment as Owner's
manager for the Properties to perform all of Manager's Obligations. Manager
agrees to perform Manager's Obligations so as to cause the Properties to be
operated, maintained, leased and renovated in an orderly and efficient first-
class manner as applicable to properties of a nature similar to the Properties
in the market where the Properties are located. Manager shall perform Manager's
Obligations not as an agent of Owner but as an independent contractor. Manager
at all times during the performance of its duties hereunder shall act in Owner's
best interest with respect to the proper protection of Owner's assets,
including, without limitation, the Properties. In this capacity, except as
disclosed to and approved by Owner in writing, Manager shall deal at arm's
length with all third parties and Manager shall serve Owner's interest at all
times. Manager shall act in a fiduciary capacity with respect to the proper
protection of and accounting for Owner's assets.
Without limiting the generality of the foregoing, Manager agrees to, and
is hereby granted the authority to, do the following:
A. Notification
Immediately upon execution of this Agreement, Manager shall:
(i) Notify all tenants or occupants of the Properties of the change
in management of said Property. Pursuant to such notification requirement,
Manager shall send out "Tenant's Notice Letter" in the form attached hereto as
Exhibit "D".
(ii) Notify all service entities that currently provide services of
the nature described in Section I.K. to the Properties of the change in
management and enter into new service agreements with said entities in
accordance with Section I.K.
B. Employ Personnel.
(i) Manager agrees to hire, pay, supervise and discharge all employees
and personnel necessary for the performance of Manager's Obligations as required
hereunder. Unless otherwise agreed to by Owner, such personnel shall in every
instance be the employees or independent contractors of Manager and not of
Owner, and Manager shall be responsible for all matters relating to such
personnel, including compliance with the requirements of all applicable laws
relating to such employees. Subject to reimbursements as hereafter set forth,
the salaries, wages and other compensation and fringe benefits, union dues,
insurance, employer's and employees' taxes, and vacation (collectively, "WAGES")
of such employees and personnel shall be negotiated and paid by Manager.
Additionally, at the expense of Manager, executive personnel of Manager shall be
charged
3
<PAGE>
with the performance of Manager's Obligations under this Agreement and with the
general supervision, direction and control of on-site personnel at the
Properties.
(ii) In no event shall Manager enter into an employment contract for
"ON-SITE" employees at the Properties relating to services to be performed at or
for the Properties except in accordance with the approved operating budget.
Employees of Manager who are responsible for or have access to funds of Owner
shall be subject to Owner's approval, not to be unreasonably withheld.
C. Books and Records.
(i) Manager agrees to maintain separate and complete books and
records in connection with its management and operation of the Properties (which
shall be supported by sufficient documentation to ascertain that said entries
are properly and accurately recorded), including all Leases (hereinafter
defined), amendments, contracts, agreements and other documents relating to the
Properties. Such books and records shall be kept in a safe and secure manner,
and shall be sufficient to respond to Owner's requirements for financial
information, including, without limitation, financial requirements (a) set forth
in Owner's partnership agreement and (b) of Owner's lender(s). All such books
and records shall be maintained at Manager's address set forth herein. Manager
shall exercise such control over accounting and financial transactions as is
reasonably required to protect Owner's assets from theft, error or fraudulent
activity on the part of Manager's employees or agents including losses arising
from theft of assets by Manager's employees or other agents, or penalties and/or
interest of a material nature. Manager shall preserve all such books and records
for at least six (6) years after the close of the calendar year to which they
relate. Manager shall make the books of account and all other records relating
to or reflecting the operation of the Properties available to Owner and its
representatives at Manager's principal office at all reasonable times upon
reasonable Notice for examination, audit, copying, inspection and transcription.
Upon Owner's reasonable request and expense, Manager shall deliver to Owner
copies of any source materials utilized by Manager in preparing the records,
books and accounts. All books and records at all times shall be the property of
Owner. Upon termination of this Agreement, Manager, at Owner's request and
expense, shall deliver copies of all such books and records to Owner.
(ii) Manager agrees to render to Owner on or before the fifteenth
(15th) day of each calendar month a detailed financial report as specified in
Article IV. Manager shall, within ninety (90) days after the end of each
calendar year, have an audit of the books and records of the Properties made by
Deloitte & Touche L.L.P. or another firm of certified public accountants or
other auditors approved by Owner, which audit shall be certified as to the
fairness of the presentation of such financial statements and notes and the
preparation thereof in accordance with generally accepted accounting principles
applied on a consistent basis. While the foregoing shall in no event include
any tax return preparation relating to the Properties, Manager shall assist
Owner, at Owner's request and expense, in obtaining information necessary to
prepare such returns. In addition, Manager shall furnish Owner with a report
setting forth in sufficient detail all data and information regarding the
business of the Properties as shall be required to enable Owner to prepare its
federal, state and local income tax returns. The expense of the annual audit
shall be an expense of Owner.
D. Manager's Enforcement of and Compliance with Lease Terms.
Manager shall consult with Owner regarding the breach of any tenant's
material obligations as required by leases and all other occupancy agreements
(collectively, "LEASES"). Unless advised by Owner to the contrary, Manager
shall require compliance with the requirements of Leases on the part
4
<PAGE>
of the tenants and occupants thereunder (collectively, "TENANTS") and, at the
direction of Owner, otherwise take such actions as may be necessary to exercise
Owner's rights under any such Lease. In addition, if a Tenant's Lease requires
that such Tenant maintain any insurance coverage, Manager shall use its
reasonable best efforts to obtain such certificates of insurance annually from
each such Tenant and review same for compliance with the Lease.
E. Collection.
Manager shall calculate and collect: (a) the rents and all other charges
payable by Tenants under the terms of their Leases (collectively, "RENTS"),
including the timely billing for such rents and other charges, including the
calculation and timely billing of all escalations, pass-throughs, percentage
rent, electricity charges, charges for work or services, and any and all other
sums payable by Tenants; and (b) any and all other charges that may from time to
time be due and payable to Owner from Tenants, licensees, or the public with
respect to the Properties, including parking income, storage income, income from
coin-operated machines, and so on. All Rents and other charges collected
pursuant to this Section I.E. shall be deposited in the Capital Account.
F. Defaults.
Manager shall notify Owner in the management reports delivered pursuant to
Paragraph IV.B of any defaults by Tenants under their Leases. Manager may, at
Owner's expense, with Owner's prior approval, engage counsel and cause such
legal proceeding to be initiated and prosecuted as may be necessary to enforce
Leases and Tenant obligations in connection with a Tenant's failure to pay rent
or other material Tenant defaults as is standard in the ordinary course of
business of property managers similarly situated. In this regard, with respect
to a Tenant's failure to pay rent, Manager, with the approval of Owner, shall
have the authority to, and shall, cancel Leases, terminate tenancies and
occupancies, serve in the name of Owner such notices as are appropriate to
institute and prosecute causes of action, evict Tenants and recover Rents and
other sums due, and compromise disputes with Tenants involving set-offs or
damage claims and Manager shall promptly notify Owner of same; provided,
however, Manager shall not compromise or settle any single dispute involving in
excess of $______ or disputes that in the aggregate in any year total more than
$______ in each case without Owner's prior approval.
G. Service and Labor.
Manager agrees to review, evaluate, negotiate and enter into service
contracts and any other contracts in the name of Owner that are required in the
ordinary course of business of operating the Properties in a first-class manner
as applicable to properties of a similar nature to the Properties and which,
except as provided in Section I.I, provide for services that are included in an
approved budget, including, without limitation, contracts for electricity, gas,
telephone, cleaning, security, vermin extermination and other services which are
required under any of the Leases or to comply with any Requirements (hereinafter
defined). Manager shall not enter into any contract (not covered by the
provisions of Sections I.A and I.R) having a term of more than one (1) year or
requiring payments in excess of $______ for any one year period or contracts
requiring payments in excess of $______ in the aggregate for any one-year
period, without Owner's prior approval. Manager shall submit any prospective
services required for the Properties involving in excess of $______ during any
twelve (12) month period to a competitive bidding process, accepting bids, if
any, from unrelated third parties.
5
<PAGE>
H. Repairs and Maintenance.
At the expense of Owner, and in accordance with the budgets, Manager
agrees to keep the Properties, including all equipment and systems, in good
order and repair, in a first-class manner as applicable to properties of a
similar nature to the Properties, in clean and sightly condition, and in
compliance with all Requirements, and to make, and supervise the making of, all
repairs that are the obligations of Owner to Tenants of the Properties (unless
the same is required to be performed by Tenants under their Leases, in which
event, Manager shall use diligent efforts to enforce compliance by such Tenants)
and all repairs, maintenance, decorations, replacements, substitutions,
improvements and additions to the Properties necessary or desirable for keeping
the Properties in such condition. Where appropriate for the work required, or as
otherwise required hereunder, Manager shall submit proposed expenditures to a
competitive bidding process. The applicable provisions of Section I.R shall
apply to all repairs, maintenance, decorations, replacements, substitutions,
improvements and additions to the Properties. Manager agrees to make payments on
account of all repairs, replacements, renovations, additions and other payments
directed by Owner whether or not such items have been included i the approved
budgets, provided that Owner makes adequate provisions for the repayment of all
costs connected with such items.
I. Emergency Expenditures.
Manager agrees to give prompt Notice to Owner of any emergency requiring
repairs or expenditures and to make reasonable efforts to secure Owner's prior
approval before making same. If, after Manager's unsuccessful attempts to
notify or contact Owner, in the reasonable good faith judgment of Manager, any
capital improvement must be undertaken immediately, or any operating expense
must be incurred immediately that are required (a) to correct a condition that
if not corrected would endanger imminently the preservation or safety of the
Premises (or any portion thereof) or the safety of Tenants or other persons, (b)
to avoid the imminent suspension of any necessary service in or to the Premises,
or (c) to prevent Owner or any of the partners of Owner from being subjected
imminently to criminal or substantial civil penalties or damages, then Manager
shall be permitted to make such capital improvement or to incur such operating
expense, not in excess of $______, without regard to the approved operating
budget and without first obtaining the approval of Owner, provided Owner is
informed of any such expenditure before the end of the business day on which the
same is incurred.
J. Maintenance, Taxes and Assessments; Business License.
(i) Unless bills are sent directly to a mortgagee, Manager shall
obtain and verify bills for real estate and personal property taxes, improvement
assessments and other similar charges that are or may become liens against the
Premises and shall recommend payment (or, if reasonable, appeal as in its best
judgment it may decide). Unless a mortgagee is required to make payment,
Manager shall forward such bills to Owner for payment by Owner in such time to
permit Owner to avoid penalty for late payment or to permit Owner to take
advantage of discounts. If Owner directs Manager to make payment, Manager shall
pay, at the expense of Owner, all real estate and personal property taxes and
assessments levied or assessed against the Premises or personal property used in
connection therewith, such payments to be made in each case so as to avoid the
imposition of additional interest, penalties or other charges for the late
payment thereof (or if Owner directs, so as to obtain any available discount),
and shall furnish Owner with receipted bills therefor.
6
<PAGE>
(ii) Manager agrees to annually review, and, at Owner's request,
submit a report on all real estate and personal property taxes and assessments
affecting the Premises (and if so requested, Manager may engage outside
consultants, at Owner's expense, with Owner's prior approval) and to initiate
and pursue appeals of same, if so directed by Owner.
(iii) Manager shall promptly notify Owner of, and at Owner's expense,
cause the issuance of, any necessary business licenses and permits in the name
of Owner or the Premises.
K. Inventories and Supplies.
Manager agrees to supervise and purchase, or arrange for the purchase, at
Owner's expense (subject to the budget as described in Section IV), in an
economical manner, of all inventories, provisions, supplies and operating
equipment that, in the normal course of business, are necessary and proper to
maintain and operate the Premises in a first-class manner as applicable to
properties of a nature similar to the Premises. Manager shall pass through to
Owner all "bulk" discounts (or Owner's pro rata share, if applicable) received
by Manager in connection with such purchases.
L. Signs.
Subject to approval of Owner, Manager agrees to promulgate and maintain
from time to time a policy with respect to the erection and maintenance of signs
at the Premises. All required temporary or permanent exterior/interior signage
to properly identify and market the Premises, as approved by Owner, shall be
considered an expense of the Premises.
M. Hours.
At all times during normal business hours, and with respect to
emergencies, during all other hours, Manager agrees to be available to, or cause
a representative of Manager to be available to, Tenants in the Premises.
N. General Operations.
Manager, at the expense of Owner, agrees to operate the Premises and all
facilities and services in the Properties in a first-class manner as applicable
to properties of a nature similar to the Properties and in compliance with all
Requirements and to provide such services at the Properties as are normally
provided by operators of properties of comparable class and size; subject,
however, to the budget constraints described in Section I.V.A. Manager shall
draft, upon Owner's written request, and implement, upon receipt of Owner's
approval thereof, all operating procedures and emergency, contingency and
security plans for the Properties.
O. Tenant Complaints.
Manager shall submit to Owner promptly upon receipt any notice of any
alleged default of Owner received from any Tenant at the Properties. Manager
agrees to handle complaints and requests from Tenants and to notify Owner of any
significant complaint made by a Tenant at the Properties.
7
<PAGE>
P. Notices of Claim of Injury or Damage.
Manager agrees to notify (i) Owner and any insurance carrier of insurance
required under Section VII.B of any personal injury or property damage occurring
to or claimed by any Tenant or third party with respect to the Properties and
(ii) Owner of any disclaimer of coverage by any insurance carrier, and to
promptly forward to Owner any summons, subpoena, or legal document served upon
Manager relating to actual or alleged potential liability of Owner, Manager or
the Properties promptly upon Manager's knowledge thereof.
Q. Hazardous Substances.
If during the term of this Agreement, Manager becomes aware of the
existence or the likely existence at the Properties of hazardous materials,
toxic wastes, asbestos or asbestos-containing materials or any other substance,
now or in the future defined as a "hazardous substance" under U.S.C. (S) 9601 et
seq., as amended or under any similar rule, regulation or law now existing or
hereafter enacted or adopted (collectively, "HAZARDOUS SUBSTANCES"), then
Manager shall immediately notify Owner of the condition and recommend a course
of action to be taken in connec tion therewith. Owner shall determine such
further course of action. Manager shall always use due diligence in detecting
and preventing hazardous conditions. Manager shall not take any action or fail
to take any action with respect to Hazardous Substances without the
authorization of Owner.
R. Construction and Renovation.
In connection with all repairs, alterations, renovations, replacements and
construction work performed at the Properties, including, without limitation,
under Section I.H, whether by Owner or any Tenant (collectively, "WORK"),
Manager shall coordinate, monitor and supervise Work as provided herein so that
all Work shall be performed in an orderly manner, in a good and workerlike
manner, lien-free (subject to timely payment by Owner as required hereunder), in
compliance with all applicable laws, rules, regulations, ordinances and permits,
and so as to cause a minimum of interference with the Tenants' use of the
Properties and with the operation of the equipment and mechanical and other
systems of the Properties. Without limiting the generality of the foregoing,
Manager shall:
a. cause to be prepared, and review, plans and specifications (at Owner's
expense to the extent Manager incurs any out-of-pocket, third-party
expenses in connection with such plans and specifications) and a budget
(at Manager's expense) for any one item of Work that will cost in
excess of One Hundred Thousand Dollars ($100,000) ("MAJOR WORK"), and
advise Owner about, and obtain Owner's prior approval for, all such
Major Work;
b. obtain Owner's prior approval for all Work that affects the Properties'
exterior or landmark-designated (if applicable) elements or structural
elements or electrical, plumbing, mechanical and other systems;
c. review and advise Owner about all contracts and agreements to be
entered into in connection with the performance of Work;
d. if any contract for Work is to be performed by or on behalf of Owner,
the cost of that is expected to exceed Ten Thousand Dollars ($10,000),
then Manager shall require
8
<PAGE>
competitive bidding for the performance of such Work (in a manner
consistent with bidding procedures approved by Owner), shall accept
third-party bids therefor, and shall review the bids with Owner and
advise Owner which bid to accept;
e. if requested, prepare loan disbursement requests with all requisite
back-up documentation in order to obtain payment for the Work;
f. be responsible for, and obtain Owner's approval for, all filings and
applications for permits, certificates and other similar approvals or
documentation with all authorities having jurisdiction over the
Properties or Work;
g. consult with and advise Owner about, and obtain Owner's approval with
respect to, the types and coverage limits of insurance to be required
of the general contractor, construction manager, architect, engineer,
sub-contractors and other professionals involved in any Work, which
coverage shall comply with the provisions of Section IV.D (the
"PROFESSIONALS");
h. act as construction manager (as such term is commonly understood in the
California construction industry, but in any case including the
following responsibilities: assist Owner in defining the scope of work;
assist in preparing and reviewing plans and specifications, including
attendance at meetings with architects and engineers; solicit bids;
coordinate schedule, ordering, and deliveries; supervise job; regularly
inspect work; review draw requests and make recommendations for
payment; keep Owner informed of the status of the job; and make
recommendations regarding payment) and supervise and monitor the
performance of the Professionals and the overall progress of such Work,
provided that Manager shall not be required to undertake the role of
construction manager for Work the estimated cost of which exceeds One
Million Dollars ($1,000,000);
i. during the performance of any Work, certify to Owner, when requested,
that, to the best of Manager's knowledge, such Work is being performed
in accordance with the provisions hereof and, if applicable, in
compliance with the plans and specifications therefor;
j. inform Owner of the commencement of any Work other than Major Work; and
k. use its best efforts to obtain waivers of lien from all contractors,
subcontractors, and materialmen involved in the performance of any Work
and the materials furnished in connection therewith, as soon as same
may be obtained under applicable Requirements.
S. Sufficient Funds; Expenditures To Be Approved.
Notwithstanding the imposition of Manager's Obligations upon Manager
hereunder, if the cost of performing any such Manager's Obligations is to be
borne by Owner as provided in the applicable approved budget or as otherwise
agreed to by Owner herein or elsewhere in writing, Manager shall not be
obligated to perform such Manager's Obligations unless Owner provides Manager
with sufficient funds therefor. In addition, notwithstanding the rights granted
to Manager under this Article I and elsewhere in this Agreement to incur
expenditures on behalf of Owner, unless such expenditures are included in a
budget previously approved by Owner, or are of an emergency
9
<PAGE>
nature (and meet the dollar limitations as described in Section I.I), all such
expenditures must be approved by Owner prior to Manager incurring same.
T. Transactions. If Owner desires to sell or refinance any one or more
of the Properties, then Manager shall fully cooperate with Owner and/or Owner's
designated parties as Owner directs, including by providing detailed
information, exhibiting the Properties, and so on. Manager shall have no rights
or decision making authority in connection with any such sale or refinancing.
U. Information. Manager shall keep Owner apprised of, and shall promptly
notify Owner of, all matters that have or may have a material effect on the
ownership, operation, maintenance or repair of the Properties.
V. Mandatory Contract Provisions.
Any service, supply, maintenance, repair, construction or other contract
referred to in Article I shall, unless otherwise agreed to by Owner, (a) be in
the name of Owner or, if requested by Owner, Manager, including service
contracts in existence on the Commencement Date, (b) contain a provision by
which the contractor or subcontractor, as the case may be, indemnifies, defends
and holds Owner harmless from and against any and all claims, demands, causes of
action, losses, damages, fines, penalties, liabilities, costs and expenses,
including, without limitation, reasonable attorneys' fees and disbursements and
court costs, sustained or incurred by or asserted against Owner by reason of or
arising out of the contractor's, subcontractor's, its employees', agents' or
representatives' negligence, fraud, willful misconduct or criminal acts, (c) be
assignable, at Owner's or Manager's option, as applicable, to a new owner of the
Properties without the contractor's consent, (d) include a provision for
cancellation, without penalty, by Owner upon not more than thirty (30) days'
written Notice, and (E) require that the contractor or subcontractor provide
evidence of sufficient insurance acceptable to Owner or Manager, as the case may
be. In addition, Manager shall make Owner and each of its lenders an additional
beneficiary of any insurance or indemnity provision that is provided in any such
contract. If Owner shall sell or otherwise transfer the Properties and not
exercise its option set forth in Article X to terminate this Agreement in
connection therewith, then Manager shall, at Owner's option, assign to Owner or
Owner's successor-in-interest any or all service contracts pertaining to the
Properties that may be in the name of Manager.
ARTICLE II.
DUTIES OF OWNER
A. Management Materials in Possession of Owner.
At the Commencement Date and at any and all times thereafter that such
material becomes available to Owner, Owner shall promptly furnish Manager with
all documents and written information required for the management of the
Properties, such as all Leases, amendments, the status of rental payments,
copies of service contracts in effect, and all applicable insurance policies,
and other documents and information as Manager may reasonably request.
10
<PAGE>
B. Hazardous Substances.
At commencement of this Agreement, and at any and all times thereafter
that any written knowledge is obtained by Owner relating to the continued
existence of any Hazardous Substances, underground storage tanks, and health,
fire and safety hazards with respect to the Properties, Owner shall promptly
furnish Manager with all documents, studies, tests, and reports that discuss or
mention any of the foregoing. Owner and Manager agree to make public all test
and inspection results required by law or Lender to be disclosed. Should
Manager reasonably disagree with Owner's instructions in regard to these
matters, Manager may, at its option, terminate this Agreement in accordance with
Section X.B. The fact that Manager may choose not to terminate this Agreement
shall not be taken as an agreement to or acquiescence in the action of Owner
taken in regard to these matters.
C. On-Site Office.
If the performance by Manager of Manager's Obligations requires facilities
or space at the Properties, Owner agrees to provide appropriate facilities or
space at the Properties suitable for the discharge of Manager's Obligations
under this Agreement.
D. Authorities Withheld by Owner.
Listed below are specific authorities that Owner is withholding from
Manager unless superseded by written permission from Owner, or as may be
approved by Owner in a budget:
a. Execution of Leases.
b. Other authorities or rights not expressly granted to Manager hereunder.
c. Other authorities or rights that expressly require Owner's approval
hereunder.
ARTICLE III.
EXPENSES BORNE BY OWNER
Except as otherwise expressly provided herein, all expenses, debts and
liabilities incurred to third parties in accordance with the terms hereof, or by
Owner directly, are and shall be obligations of and paid by Owner, and Manager
shall not be liable for any such obligations by reason of its management,
supervision or operation of the Properties for Owner. To the extent expenses of
the Properties can be passed on to Tenants, considering Lease terms, Manager
shall so pass on such expenses and the amounts so collected shall be treated as
Rents. Manager agrees to pay all Wages, which amounts shall, subject to the
exclusions hereinafter specifically set forth, be an expense of Owner. The
following expenses or costs incurred by Manager in connection with the
management of the Properties shall be at the sole cost and expense of Manager
and shall not be reimbursable or paid by Owner:
(a) Cost of gross salary and wages, payroll taxes, insurance, worker's
compensation, union dues, vacation and other benefits of Manager's
personnel not covered in the approved operating budget.
11
<PAGE>
(b) General accounting, bookkeeping and reporting services required
hereunder to be provided by Manager in the normal course of its
business in connection with its management of properties.
(c) Political or charitable contributions.
(d) Cost of advances made to employees, which advances at any time
exceed repayments thereof theretofore made by employees.
(e) Cost of travel and meals of employees.
(f) Any expenses not specifically approved in the approved operating
budget or otherwise specifically approved by Owner as an expense of
Owner, either herein or elsewhere, in writing.
(g) Manager's overhead, general and administrative costs and expenses.
Owner shall not be responsible for any costs associated with the supervision and
coordination of any of the Manager's Obligations, except for the Management Fee
referred to in EXHIBIT "B."
ARTICLE IV.
BUDGETS AND BANK ACCOUNTS
A. Budgets.
(i) Manager agrees to prepare at least annually, and submit to Owner
for its approval on or before ______ of each calendar year, an operating budget
for the next ensuing calendar year, which operating budget shall include, among
other things, (a) the name and title of each employee "on-site" at the
Properties, (b) the responsibilities of, and duties performed by, such
employees, and (c) the Wages for each such employee, and updates or revisions to
the budgets for the current operating year, in each case in a manner reasonably
satisfactory to Owner. Manager agrees to prepare and submit to Owner for its
approval an operating budget for the remainder of the calendar year that
includes the Commencement Date within thirty days after the Commencement Date.
Pending such delivery and approval, Manager shall operate the Properties in a
manner substantially consistent with prior practice and all contracts and
expenditures shall be subject to Owner's approval not to be unreasonably
withheld.
(ii) Manager agrees not to make expenditures for the operation and
maintenance or improvement of, or otherwise relating to, the Properties in any
fiscal year except within the categories and amounts contained in the budgets
for that year previously approved by Owner, unless (a) such expenditure is
specifically authorized under any of the other provisions of this Agreement, or
(b) Manager first obtains Owner's approval of such expenditure. In addition,
during the calendar year, Manager shall inform Owner of any significant
increases or decreases in costs and expenses or revenues that were not foreseen
during the budget preparation period and thus were not reflected in the
operating budget.
B. Bank Accounts.
12
<PAGE>
(i) All costs and expenses which, pursuant to the provisions hereof,
are agreed to be operating expenses of the Properties, shall be paid from the
Manager's Operating Account(s), as defined in subsection (ii) below, unless the
funds therein are insufficient for such purpose, in which event the same shall
be paid from funds provided by the Owner. Manager may, however, but shall not
be obligated so to do, make any advance of funds, subject to reimbursement
therefor (without interest) by Owner within five (5) days after written request
therefor, to cover any expenses which Manager reasonably believes are necessary
for the maintenance or operation of the Properties and are permitted by the
provisions hereof.
(ii) Manager's Operating Account(s) shall be in the form of a Money
Market account and/or checking account, as deemed reasonably necessary by
Manager, and shall be established into which the depositary for the Servicing
Agent shall make disbursements from the Deposit Account in accordance with the
terms and conditions of the Mortgage. All rent and other gross receipts from
the Properties shall be deposited directly by Tenant into the Deposit Account,
which shall be set up pursuant to the terms of the Mortgage. In the event that
the Manager receives any funds with respect to the Properties, Manager shall
immediately deposit such funds into the Deposit Account. Manager shall pay from
the Manager's Operating Account(s), as determined by Manager, all expenses
Manager reasonably believes, in its sole judgment and discretion, are necessary
for the operation and management of the Properties, including the compensation
to which Manager may be entitled as provided for in Article IX hereof and as
provided in the Loan Agreement. All funds on deposit in the Manager's Operating
Account shall be and remain the sole and exclusive property of Owner. No less
often than upon disbursement from the Deposit Account in accordance with the
Mortgage, Manager shall transfer to Owner, as Owner shall direct, from the
Manager's Operating Account(s), all funds which, in Manager's good-faith
estimate, are in excess of the Properties' current operating needs. Owner
shall, to the extent that the aggregate amount of funds in the Manager's
Operating Account(s) relating to the Properties are insufficient to pay current
operating needs, deposit sufficient funds into the Manager's Operating
Account(s) as instructed by Manager within ten (10) days after Manager's written
request (but no more than once per month, except in the case of an emergency).
(iii) Owner agrees that it shall not withdraw funds from the Manager's
Operating Account(s) unless Manager fails to perform under this Agreement.
Manager represents that all obligations shall be paid from the Manager's
Operating Account(s), as determined in the discretion of Manager, and further
agrees that all such obligations shall be paid by check or bank transfer from
such account directly to third-parties entitled thereto.
(iv) Manager shall cause to be furnished to Owner periodic statements,
no less often than monthly, of the revenue and disbursements relating to the
Properties and showing all deposits and withdrawals or distributions from the
Manager's Operating Account(s). Manager shall also prepare and deliver to Owner
any and all reports required to be delivered to Lender under the Loan Agreement.
(v) Notwithstanding the foregoing provisions of this Article IV,
Manager acknowledges that Owner, in connection with the Mortgage, has entered
into a Cash Collateral Account Security, Pledge and Assignment Agreement,
between Owner and Lender (the "Cash Collateral Account Agreement"), and Manager
agrees to comply with the provisions of the Cash Collateral Account Agreement,
and to the extent required by Lender, to execute such agreement, provided that
such compliance and execution by Manager shall not expose Manager to obligations
and liabilities greater than those to which Manager is exposed hereunder.
13
<PAGE>
ARTICLE V.
COMPLIANCE
(i) Manager agrees, subject to the approved budget and to Manager's
rights in the event of an emergency as set forth in Section I.I, to operate the
Properties in such a manner as to comply with and abide by all laws, rules,
regulations, requirements, orders, notices, determinations and ordinances of (i)
any federal, state or municipal authority, and (ii) any insurance companies
covering any of the risks against which the Properties are insured
(individually, a "REQUIREMENT" and collectively, "REQUIREMENTS"). In addition,
Manager shall use its best efforts to comply, at Owner's cost and expense, with
all terms and conditions contained in all Leases, agreements, contracts, loan
documents and other binding obligations of Owner relating to the Properties, of
which Manager is aware.
(ii) Subject to the approved budget and to Manager's rights in the
event of an emergency as set forth in Section I.I, Manager shall promptly remedy
any violation of any Require ment (a "VIOLATION") that comes to its attention.
As and when directed by Owner, and at the expense of Owner, Manager shall
institute, in the name of Owner and using counsel approved by Owner, appropriate
actions or proceedings to contest any such Requirement. Expenses incurred in
remedying or contesting Violations may be paid by Manager without Owner's
approval provided such expenses do not exceed Ten Thousand Dollars ($10,000.00)
in any one instance. If, however, a Violation is one for which Owner might be
subject to criminal or civil penalty, Manager shall notify Owner by no later
than the end of the business day on which Manager becomes aware of the Violation
so that prompt arrangements may be made to remedy the Violation.
(iii) Neither Owner, Manager nor anyone authorized to act for any of
them, shall, in the leasing of space at the Properties, the provision of service
thereto, or in any other manner, discriminate against any person on the grounds
of race, color, creed, religion, disability, sex or national origin. Manager
shall comply with all laws, regulations and ordinances pertaining to the
foregoing.
(iv) Manager and Owner each mutually agree that there shall be no
discrimination against or segregation of any person or of a group of persons on
account of race, color, religion, creed, disability, sex or national origin in
the leasing, use or occupancy of, or the employment of Manager's personnel at,
the Properties, nor shall Owner or Manager permit any such practice or
discrimination or segregation with reference to the selection, location, number,
use or occupancy of Tenants.
14
<PAGE>
ARTICLE VI.
INSURANCE AND INDEMNIFICATION
A. Insurance.
Owner shall, at its sole cost and expense, keep in full force and effect
insurance coverage of the types and minimum limits as follows during the term of
this Mortgage:
(i) Property Insurance. Insurance with respect to the Improvements and
------------------
the Building Equipment against any peril included within the classification
"All Risks of Physical Loss" with extended coverage in amounts at all times
sufficient to prevent Owner from becoming a co-insurer within the terms of
the applicable policies, but in any event such insurance shall be maintained
in an amount equal to the full insurable value of the Improvements and the
Building Equipment (and must provide coverage of any additional costs
associated with applicable Legal Requirements), and such policies shall be
subject only to exclusions that are standard and customary for properties
comparable to the applicable Property and acceptable to the Rating Agencies
and Lender. The term "full insurable value" means the actual replacement
cost of the Improvements and the Building Equipment (without taking into
account any depreciation, and exclusive of excavations, footings and
foundations, landscaping and paving) (but in no event less than 125% of the
applicable Allocated Loan Amount) determined annually by an insurer, a
recognized independent insurance broker or an Independent Appraiser selected
and paid by Owner and in no event less than the coverage required pursuant to
the terms of any Lease; provided, however, if the terms of the applicable
insurance policies expressly provide for insurance to be provided in the
amount of the actual replacement cost of the Improvements and the Building
Equipment or such policies contain a replacement cost endorsement, no such
annual determination will be necessary;
(ii) Liability Insurance. Comprehensive general liability insurance,
-------------------
including bodily injury, contractual injury, death and property damage
liability, and excess and/or umbrella liability insurance against any and all
claims, including all legal liability that could be imposed upon Lender, to
the extent insurable, and all court costs and attorneys' fees and expenses,
arising out of or connected with the possession, use, leasing, operation,
maintenance or condition of each Property in such amounts as are generally
required by institutional lenders for properties comparable to the Properties
written on a per occurrence basis with a per occurrence limit of not less
than $1,000,000 and with an aggregate limit of not less than $5,000,000 per
Property;
(iii) Workers' Compensation Insurance. Statutory workers' compensation
-------------------------------
insurance (to the extent the risks to be covered thereby are not already
covered by other policies of insurance maintained by Owner), with respect to
any work by or for Owner performed on or about any Property;
(iv) Loss of Rental Value. Loss of "rental value" or "business
--------------------
interruption" insurance in an amount sufficient to avoid any co-insurance
penalty and to provide Proceeds which will cover the loss of rents sustained
during the period of at least twelve (12) months following the date of
casualty (which casualty shall include damage by reason of earthquake). Such
policies of insurance shall be subject only to exclusions that are acceptable
to Lender and the Rating
15
<PAGE>
Agencies. The term "rental value" means the sum of (A) the total then
ascertainable Rents payable under the Leases and (B) the total ascertainable
amount of all other amounts to be received by Owner from third parties which
are the legal obligation of Tenants, reduced to the extent such amounts would
not be received because of Operating Expenses not incurred during a period of
non-occupancy of that portion of such Property then not being occupied;
(v) Builder's All-Risk Insurance. During any period of repair or
----------------------------
restoration, builder's "all risk" insurance in an amount equal to not less
than the full insurable value of the applicable Property against such risks
(including fire and extended coverage and collapse of the Improvements to
agreed limits as Lender may request, in form and substance acceptable to
Lender.
(vi) Boiler and Machinery Insurance. To the extent applicable, broad
------------------------------
form boiler and machinery insurance (without exclusion for explosion)
covering all boilers or other pressure vessels, machinery and equipment, if
any, located in, on or about each Property and insurance against loss of
occupancy or use arising from any such breakdown in such amounts as are
generally available at commercially reasonable premiums and are generally
required by institutional lenders for properties comparable to each Property;
(vii) Flood Insurance. If any Improvement on any Property is located
---------------
within an area designated as "flood prone" or a "special flood hazard area"
(as defined under the regulations adopted under the National Flood Insurance
Act of 1968 and the Flood Disaster Protection Act of 1973), flood insurance
if available, in an amount equal to the lesser of the Allocated Loan Amount
for the applicable Property and the maximum limit of coverage available with
respect to the applicable Property, acceptable to Lender, provided, however,
that if flood insurance shall be unavailable from private carriers, flood
insurance provided by the federal or state government, if available;
(viii) Earthquake Insurance. Earthquake coverage with such limits and
--------------------
deductibles as are generally required by institutional lenders for similar
properties in the geographic area where the Properties are located, in any
event at least equal to the lesser of the Allocated Loan Amount for the
applicable Property and the maximum limit of coverage available with respect
to the applicable Property. Such coverage shall be placed with one or more
reputable insurers and may insure additional properties on a pooled risk
basis. Notwithstanding the foregoing, Owner shall not be required to carry
such earthquake coverage with respect to Properties as of the date hereof,
unless the same shall be required by any Lease of such Property. In addition,
if any Substitute Property is located in California, if Owner shall deliver
to Lender a seismic study with respect to such Substitute Property located in
California, quantifying the probable maximum loss with respect thereto in
connection with an earthquake, which report shall be acceptable to Lender,
Lender shall waive the requirements of this clause (viii) with respect to
such Substitute Property, provided that no Lease of such Substitute Property
shall require such coverage; and
(ix) Other Insurance. At Lender's reasonable request, such other
---------------
insurance, including but not limited to earthquake insurance, with respect to
the Trust Estate against loss or damage of the kinds from time to time
customarily insured against and in such amounts as are generally required by
institutional lenders on loans of similar amounts and secured by properties
compara ble to the Properties.
B. Ratings of Insurers.
16
<PAGE>
Owner will maintain the insurance coverage described in Section ___ above,
in all cases, with one or more domestic primary insurers acceptable to Lender,
having both (i) a claims-paying-ability rating by Standard & Poor's Ratings
Services of not less than "AA" and its equivalent by any other Rating Agency,
and (ii) an Alfred M. Best Company, Inc. ("Best") rating of "A" or better and a
----
financial size category of not less than IX. All insurers providing insurance
required by this Agreement shall be authorized to issue insurance in the state
where the Property insured is located.
For the purposes hereof, "Maximum Foreseeable Casualty Loss" shall mean
the estimate of a qualified fire protection engineer in connection with Owner's
existing insurance package of the maximum probable casualty loss which would be
suffered in respect of the Improvements and Building Equipment for any Property
as a result of damage caused by the perils covered by the insurance described in
Article VI.
The insurance coverage required under Section VI.A. may be effected under
a blanket policy or policies covering the Trust Estate and other properties and
assets not constituting a part of the Trust Estate; provided that any such
blanket policy shall specify, except in the case of public liability insurance,
the portion of the total coverage of such policy that is allocated to the Trust
Estate, and any sublimits in such blanket policy applicable to the Trust Estate,
which amounts shall not be less than the amounts required pursuant to Section
VI.A. and which shall in any case comply in all other respects with the
requirements of this Section VI.
C. Miscellaneous
Owner shall comply with all Insurance Requirements and shall not bring or
keep or permit to be brought or kept any article upon any of the Property or
cause or permit any condition to exist thereon which would be prohibited by any
Insurance Requirement, or would invalidate insurance coverage required hereunder
to be maintained by Owner on or with respect to any part of any Property
pursuant to this Section ___. Notwithstanding anything to the contrary, it is
expressly understood and agreed that any insurance which Owner shall cause any
Tenant to provide that shall otherwise be in compliance with all of the terms
and conditions of this Section VI shall satisfy Owner's obligations with respect
thereto hereunder.
Owner will not take out separate insurance contributing in the event of
loss with that required to be maintained pursuant to this Section VI unless such
insurance complies with this Section VI.
Except in the case of public liability insurance, upon Lender's request,
Owner shall deliver to Lender an Officer's Certificate setting forth (i) the
number of properties covered by such policy, (ii) the location by city (if
available, otherwise, county) and state of the properties, (iii) the average
square footage of the properties (or the aggregate square footage), (iv) a brief
description of the typical construction type included in the blanket policy and
(v) such other information as Lender may reasonably request.
D. Indemnification.
Manager agrees to indemnify and save Owner, and Owner's partners (direct
and indirect), and the officers, employees and partners of Owner and Owner's
partners (direct and indirect), harmless from and against all loss, cost,
liability and expense, including, but not limited to, reasonable counsel fees
and disbursements that may be occasioned by any acts constituting theft,
17
<PAGE>
fraud, willful misconduct or gross negligence on the part of Manager, or
Manager's failure to take appropriate action for the theft, fraud, willful
misconduct or gross negligence of its employees, agents and/or representatives.
Except for Manager's theft, fraud, willful misconduct or gross negligence, Owner
shall indemnify, defend and hold harmless Manager from any loss, cost, liability
and expense, including, but not limited to, reasonable counsel fees, relating to
the Properties that results from Manager's performance of Manager's Obligations
hereunder in accordance with the terms hereof, provided Manager:
(1) notifies Owner and any insurance carrier (as required) promptly after
Manager receives notice of any such loss, damage or injury;
(2) takes no action (such as admission of liability) that bars Owner from
obtaining any protection afforded by any insurance policy Owner may
hold or that might prejudice Owner in its defense to a claim based on
such loss, damage or injury; and
(3) agrees that Owner shall have the exclusive right, at its option, to
conduct the defense to any claim, demand or suit.
Nothing contained herein shall be construed as indemnifying Manager against its
theft, fraud, willful misconduct or gross negligence, or against any losses,
claims, demands, liabilities, suits, damages, awards, judgments, charges,
penalties, fines costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) which may be imposed upon, incurred, paid by
or asserted against Owner by reason of or in connection with the Manager's
obligations under this Agreement.
Manager agrees that the obligations of Owner under or with respect to this
Agreement, if any, do not constitute personal obligations of Owner and shall not
create or involve any claims against, or personal liability on the part of Owner
and that Manager and all Persons claiming by, through or under Manager will look
solely to Owner's interests in the Properties and not to any other assets of
Owner for satisfaction of any liability of Owner in respect of this Agreement
and will not seek recourse or undertake any collection or enforcement measures
against Owner or levy upon, attach, execute against, collect from or otherwise
attempt to enforce Owner's obligations or liabilities against any personal
assets or other assets of Owner.
E. Survival of Indemnifications.
The indemnifications set forth in this Article shall survive the
expiration or earlier termination of this Agreement.
F. Ownership of Materials; Confidentiality.
All estimates, projections, studies, reports, charts, recommendations,
surveys, plans, drawings, agreements and other data, information, documents and
work in any way relating to the Properties prepared and done by Manager pursuant
hereto or otherwise in the possession of Manager shall be and remain the
property of Owner. Throughout the term of this Agreement, Manager shall
promptly furnish Owner with accurate, current and complete copies of all such
data and materials with respect to the Properties. Immediately following any
termination of this Agreement, Manager shall turn over to Owner originals, and
where no originals are available, copies of all such data and
18
<PAGE>
materials in Manager's possession, and Owner shall have the right to use the
same without further compensation to Manager. Manager agrees, for itself and
all Persons retained or employed by Manager in performing its services
hereunder, to hold in strict confidence and not to use or disclose to others any
confidential or proprietary information of Owner heretofore or hereafter
disclosed to Manager or to any such Persons (all information obtained or
provided relating to Owner or the Properties's financial condition or otherwise
designated as such by Owner conclusively being deemed confidential, including,
but not limited to, any data, information, plans, programs, processes, test
results, costs, operations or identities of tenants which may come within the
knowledge of Manager or any such Persons in the performance of, or as a result
of, its services), except where: (a) Owner specifically authorizes the
disclosure of any information to others or such disclosure reasonably results
from the performance of Manager's duties hereunder; or (b) such written data or
information previously and lawfully shall have been made publicly available by
parties other than Manager.
G. Nondiscrimination.
There shall be no discrimination against or segregation of, any person or
group of persons, on account of race, color, sex, marital status, creed,
religion, national origin or ancestry in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the Properties, nor shall the Manager,
its agents, employees or any other person claiming under or through Manager,
establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or vendees of the Properties.
H. Prohibited Inducements
Except as otherwise expressly provided in this Agreement, Manager, its
directors, employees or agents shall not give to or receive from any director,
employee or agent of any tenant of the Properties or any party or entity with
whom it contracts for the benefit of the Properties any gift, payment,
entertainment or other favor of significant value, or any commission, fee or
rebate.
ARTICLE VII.
LEASING
A. Appointment.
Owner hereby appoints Manager as the leasing agent for the Properties.
Manager hereby accepts such appointment in order to maximize the earnings of the
Properties. In connection with such appointment, Manager agrees to use its best
efforts to have the rentable space in the Properties continuously rented to
desirable Tenants satisfactory to Owner and, all subject to Owner's approval and
instructions:
(i) to prepare and submit to Owner for its approval, a form lease to
be used for all Tenants (the "FORM LEASE");
(ii) at the request of Owner and at Owner's expense, to advertise
space in the Properties for rent, by means of periodicals, signs, plans,
brochures and other means and media, including listing the rentable space
at such listing price(s) as Owner shall direct from
19
<PAGE>
time to time (the "LISTING PRICE"); but all written materials and
advertisements shall be subject to Owner's approval;
(iii) to promptly advise Owner in writing of any and all offers
received for any rentable space, whether or not consistent with the
current Listing Price, if any;
(iv) at the request of Owner, to actively solicit and seek the
cooperation of other licensed real estate brokers ("OUTSIDE BROKERS"),
subject to such terms and conditions as Owner may require, and to
cooperate fully with such Outside Brokers and provide them with all
relevant information regarding the Properties and space therein available
for lease;
(v) to negotiate Leases and renewals of Leases at appropriate times,
it being understood that all inquiries with respect to leasing any portion
of the Properties shall be referred to Manager, and it also being
understood that (a) all leases shall be prepared using the Form Lease
except for variations approved by Owner or consistent with guidelines to
be recommended by Manager and agreed upon by Owner and Manager in writing
from time to time; (b) except for terms and conditions that are required
by applicable law, all terms and conditions of all Leases and renewals,
all amendments to Leases, and all Leases, renewals and amendments thereof,
and any changes in the Form Lease shall be approved by Owner; (c) all
Leases, renewals and amendments shall be executed by and in the name of
Owner; and (d) Owner shall be free, without any liability to Manager
whatsoever, to accept or reject any offer, to refuse to execute any Lease,
renewal or amendment, to withdraw all or any portion of space in the
Properties from the market and to otherwise refuse to enter into, pursue
or consummate any Lease, renewal or amendment for any reason or no reason;
(e) if Manager knows that it has a prospective Tenant reference from
another property in which Manager or any affiliate of Manager has a
beneficial interest or that Manager or any affiliate of Manager manages
or is a leasing agent, Manager shall declare its potential conflict of
interest to Owner, and Owner shall determine if negotiations shall be
undertaken by Manager, Owner, or an appointed third party, and (f)
references of prospective Tenants shall be investigated by Manager.
B. Representations and Warranties. Manager represents and warrants as
follows:
(i) Manager is or will hire duly licensed real estate brokers, and
any sales personnel employed by Manager are (to the extent required by
law, regulation, or any governmental authority) duly licensed real estate
brokers or salespersons, in the jurisdiction in which the Properties are
located. Manager shall maintain all such licenses in full force and effect
throughout the term of this Agreement.
(ii) Manager shall under no circumstances accept (whether before or
after execution or effectiveness of a Lease) any compensation,
consideration or other monetary benefits of any kind, directly or
indirectly, from any party other than Owner in connection with any Lease;
provided that, notwithstanding anything in the foregoing to the contrary,
if Owner shall approve Manager's use of a cleaning contractor affiliated
with Manager, such affiliated cleaning contractor is permitted to arrange
with Tenants to perform additional cleaning services for such Tenants and
to receive compensation therefor from such Tenants.
C. Indemnity. Manager shall and hereby does indemnify, protect, defend
and hold harmless Owner, Owner's partners, employees, agents, successors and
assigns from and against any
20
<PAGE>
and all claims, demands, liabilities, causes of action, judgments, costs, liens,
damages, suits, losses, or expenses, including reasonable attorneys' fees, of
any nature, kind, or description, that may arise from any broker, finder or any
other person, corporation or other entity asserting any claim for a commission,
finder's fee or other compensation on account of having procured a Tenant under
any Lease, provided that such claim arises from or is due to the acts of Manager
and provided, further, that Owner has made all payments of the Commission due
pursuant to EXHIBIT "B" with respect to the Lease in question.
D. Safety Clause. On termination of this Agreement, Manager shall
provide Owner with a list of prospective tenants to whom Manager (with Owner's
prior written approval) has submitted written leasing proposals within the 90-
day period preceding termination, along with relevant co-broker agreements. If
a lease is executed by Owner with a tenant from the above list (excluding any
existing Tenants with whom Manager may have been negotiating), within 60 days
after termination, Owner shall pay Manager a commission in accordance with this
Agreement. Additionally, on termination, Manager (and relevant co-brokers)
fully release Owner from any obligation to pay any commissions in the event
tenants request additional space or extend lease terms after the date of
termination of this Agreement.
ARTICLE VIII.
COMPENSATION
Without limiting the provisions of Section I.S or Article III, as its sole
compensation, payment and commissions for the performance of Manager's
Obligations, Manager shall be entitled to receive the fees and commissions set
forth on the Management Fee Schedule attached as Exhibit "B".
-----------
ARTICLE IX.
TERM OF AGREEMENT
A. Term.
This Agreement shall become effective as of the Commencement Date, and
shall continue in full force and effect for a period of thirty-six (36) months
from the Commencement Date unless sooner terminated in accordance with its
terms. This Agreement shall be automatically renewed for additional terms of one
(1) year each unless one party notifies the other, in writing, at least sixty
(60) days prior to the renewal date, that it elects not to renew.
21
<PAGE>
B. Termination.
(i) This Agreement shall terminate, in its entirety, at Owner's
option, five (5) days after the occurrence of any of the following events:
a. Any material breach by Manager in the performance or observance
of any of the provisions of this Agreement on its part to be observed and
performed and the failure of Manager, after written Notice thereof from Owner,
to cure such breach within ten (10) days, or in the case of a breach which is
susceptible of being cured but which cannot with due diligence be cured within
such period of ten (10) days, to commence to cure the same and thereafter to
prosecute the curing of such breach to completion with all due diligence;
provided, however, that the provisions of this subsection shall not apply to any
of the other events provided for in the following subsections of this Section
IX.B.; or
b. The repeated failure by Manager to perform any of its
obligations under this Agreement in a timely or satisfactory fashion (but only
if Owner previously shall have given Manager written Notice of one or more prior
failures to perform in a timely or satisfactory fashion and Manager shall have
failed or been unable to cure such prior failures); or
c. The assignment by Manager of all or any of its rights or
obligations under this Agreement or the delegation or subcontracting by Manager
of all or any of its duties or responsibilities hereunder, except, in either
case, as may be expressly permitted by the provisions of this Agreement or if
first consented to in writing by Owner; or
d. The termination of Manager as a legal entity; or
e. The commission of an Act of Insolvency (as hereinafter defined)
by Manager; or
f. If any of the representations or warranties of Manager contained
in this Agreement shall be or become false in any material respect.
(ii) This Agreement shall terminate with respect to a Property, at
Owner's option, five (5) days after the occurrence of any of the following
events:
a. The sale by Owner of the Applicable Property; or
b. The taking by condemnation, eminent domain or similar
proceeding, or by agreement in lieu thereof, of all or any substantial portion
of the Applicable Property or of access thereto or parking therefor; or
c. The damage or loss of or destruction to all or any substantial
portion of the Applicable Property by fire or other catastrophe and the
consequent determination by Owner not to proceed with the restoration thereof.
(iii) This Agreement shall terminate, in its entirety, at Manager's
option, five (5) days after the occurrence of any of the following events:
22
<PAGE>
a. Any material breach by Owner in the due and punctual payment of
any material amount payable by Owner to Manager pursuant to Article 8 hereof
when and as the same shall have become due and payable, and the failure of
Owner, after written Notice thereof from Manager, to cure such breach within ten
(10) days; or
b. The commission of an Act of Insolvency by Owner.
(iv) For the purposes of this Article IX, a Person shall be deemed to
have committed an "Act of Insolvency" if: (a) such Person commences voluntary
proceedings under any chapter of the Federal Bankruptcy Code or files for relief
under any federal or state insolvency, composition, reorganization, arrangement,
recapitalization, readjustment, liquidation, dissolution or similar present or
future Law ("Bankruptcy Law"); or (b) such Person seeks or consents to or
acquiesces in the appointment of any trustee, sequestrator, conservator,
receiver, liquidator or similar entity for such Person or for all or any
substantial part of its properties or assets; or (c) such Person admits in
writing its inability to pay its debts generally as the same become due; or (e)
if, within sixty (60) days after the commencement of any proceedings against
such Person seeking any relief under any Bankruptcy Law, such proceedings shall
not have been dismissed; or (f) if, within sixty (60) days after the
appointment, without the consent or acquiescence of such Person, of any trustee,
sequestrator, conservator, receiver, liquidator or similar entity for such
Person or for all or any substantial part of its properties or assets, such
appointment shall not have been vacated or stayed on appeal or otherwise; or (g)
if, within sixty (60) days after the expiration of any such stay, such
appointment shall not have been vacated; or (h) if, within sixty (60) days after
the levying or fixing of any order or writ of execution, warrant, attachment or
garnishment against such Person or any of its assets or properties, such order
or writ shall not have been discharged, vacated or stayed on appeal; or (i) if,
within sixty (60) days after the expiration of any stay, such order or writ
shall not have been discharged.
(v) Notwithstanding the provisions of this Article IX, either Manager or
Owner shall have the right to terminate this Agreement with respect to all or
any portion of the Properties or any of their respective obligations hereunder
upon thirty (30) days prior written Notice.
(vi) Upon the expiration or earlier termination of this Agreement with
respect to a Property or Properties:
a. Owner shall have the right, but not the obligation, to replace
Manager with a new manager (the "New Manager") which shall be engaged for the
-----------
purpose of performing, at Owner's discretion, all or any portion of the
obligations of Manager hereunder which remain unperformed as of such termination
or expiration date with respect to such Property or Properties; and
b. Manager shall: (a) forthwith surrender and deliver or cause to
be surrendered and delivered to Owner or to Owner's designee all funds held by
Manager relating to the previous performance of the obligations as to which this
Agreement has been so terminated, together with a true and complete accounting
thereof; (b) forthwith surrender and deliver to Owner or to Owner's designee all
records, plans, specification, Permits, service and other contracts (all
contracts shall be specifically assignable to Owner and to the Lender as
collateral for the financing described in the Mortgage), Leases, REAs,
documents, receipts for deposits, unpaid bills, lease summaries, canceled
checks, bank statements, rent rolls, payroll and employment records, accounting
data, technical information, paid bills and all other records, papers and
documents which relate to such Property or Properties and are being held by
Manager in connection with the performance of the obligations
23
<PAGE>
which have just been terminated; (c) promptly furnish such other information and
take such other actions as Owner shall reasonably require (including without
limitation, cooperating with the New Manager) to effectuate an orderly and
systematic transition of management and leasing responsibility for such Property
or Properties; and (d) within ten (10) days after the expiration or earlier
termination of this Agreement submit to Owner a written statement (the "Final
Status Statement") setting forth (i) the names of the prospective tenant(s) with
whom it has been actively negotiating for space, (ii) the Properties for which
such negotiations were pending, (iii) the terms of the proposed Leases, and (iv)
the status of the negotiations. For the purposes of this Agreement, the term
"actively negotiating" shall be deemed to mean only such negotiations wherein
(A) the prospective tenant or its agent has submitted a written proposal to rent
space which has been received by Manager; (B) actual discussions have transpired
between Manager and a prospective tenant or its agent; and (C) such prospective
tenant's or its agent's records indicate that such discussions were on such a
level so as to constitute negotiations rather than a mere inquiry or general
solicitation. The Final Status Statement shall be certified as accurate,
current and complete by Manager; and
c. Owner shall thereupon pay to Manager any installment of the fees
provided for in Article IX hereof.
C. Obligations Upon Termination.
Upon termination of this Agreement for any reason or the expiration of the
term of this Agreement according to its terms, the relationship created hereby
shall immediately cease and Manager shall have no further right to act for Owner
or draw checks on the Disbursement Account or pursue any of the activities
described in this Agreement. In the event of termination, Manager agrees to
fulfill all reporting, bookkeeping and related functions hereunder through the
period for which Owner agrees to pay Manager a management fee. Upon
termination, Manager shall also forthwith (i) surrender and deliver to Owner
possession of the Properties, (ii) deliver to Owner all rents and income,
including Tenant security deposits in connection with any Leases and other
monies of Owner on hand and in any bank account, provided, however, that funds
in the Disbursement Account sufficient to meet anticipated operating expenses
and liabilities shall remain for a period of thirty (30) days, (iii) deliver to
Owner, as received, any monies due Owner under this Agreement but received after
such termination, (iv) deliver to Owner (or in accordance with Owner's
reasonable instructions) all materials and supplies, keys, copies of contracts,
agreements and documents, and copies of such other accounting papers, books and
records pertaining to the operation of the Properties as Owner may request, (v)
assign any right Manager may have in and to any existing contracts and
guarantees relating to the operation and maintenance of the Properties as Owner
shall require, (vi) deliver to Owner or Owner's duly appointed agent all
records, contracts, Leases, receipts for deposits, unpaid bills, summary of all
Leases, in existence at the time of termination and all other papers or
documents that pertain to the Properties, and (vii) perform any other actions,
or deliver any other documents, reasonably required hereunder upon termination
of this Agreement, including facilitating an orderly transition of management to
a new manager of the Properties. This Section X.C shall survive the expiration
or earlier termination of this Agreement.
24
<PAGE>
ARTICLE X.
NOTICES
Any Notice required or permitted to be delivered hereunder shall be deemed
to be delivered when deposited in the United States mail, postage prepaid,
registered or certified mail, return receipt requested, or, if delivered by
hand, when received by an officer or principal of the party receiving same, or,
if transmitted by telecopy, when transmitted, in each case, addressed to the
parties at the following addresses:
If to Owner:
Kilroy Realty Finance Partnership, L.P.
2250 E. Imperial Highway
El Segundo, California 90245
If to Manager:
Kilroy Realty Finance Partnership, L.P.
2250 E. Imperial Highway
El Segundo, California 90245
Either party may change its address by giving Notice of such change in writing.
ARTICLE XI.
MISCELLANEOUS
A. Entire Agreement.
This Agreement and the Exhibits annexed hereto is the entire agreement
between the parties with respect to the subject matter hereof, and no
alteration, modification or interpretation hereof shall be binding unless in
writing and signed by both parties.
B. Severability.
If any provision of this Agreement or application to any party or
circumstances shall be determined by any court of competent jurisdiction to be
invalid or unenforceable to any extent, the remainder of this Agreement or the
application of such provision to such person or circumstances, other than those
as to which it is so determined invalid or unenforceable, shall not be affected
thereby, and each provision hereof shall be valid and shall be enforced to the
fullest extent permitted by law.
25
<PAGE>
C. Applicable Law.
This Agreement shall be construed and enforced in accordance with the laws
of the State of California without giving effect to the conflict of law
provisions thereof.
D. Assignability.
This Agreement and all rights hereunder shall not be assigned by Owner or
Manager; provided, however, Owner may assign its rights under this Agreement to
an affiliate.
E. Limited Authority.
Manager's authority shall be derived wholly from this Agreement, and
Manager has no authority to act for, bind or represent Owner except as herein
specified.
F. Successors Bound.
Manager may neither assign, whether by operation of Law or otherwise, all
or any portion of its rights or obligations under this Agreement, except as
otherwise provided herein, without the prior written consent of Owner. Manager
understands and hereby acknowledges that the rights and duties created by this
Agreement are personal to Manager and that Owner has granted said rights and
duties in reliance on the character, experience, expertise, aptitude and
business and financial capacity of Manager. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, personal representatives, successors and
assigns, but shall not inure to the benefit of or be enforceable by any other
Person.
G. Relationship; Conflicts.
Nothing contained in this Agreement shall be deemed or construed as
creating a partnership, joint venture, co-ownership, agency, or employee-
employer relationship between Owner and Manager or between Owner and any other
Person. The relationship of Manager to Owner is that of an independent
contractor. Manager and Owner agree not to represent to third parties a
contrary relationship nor to take any action from which third parties reasonably
could infer that Manager and Owner are partners, joint venturers, co-owners,
agents, or employee-employer. Any breach by Owner or Manager of this Provision
shall be considered a material breach of this Agreement. Owner shall under no
circumstances be liable for any actions or omissions of Manager of Manager's
employees, agents or independent contractors.
26
<PAGE>
H. Time.
Owner and Manager agree that the other party's failure to meet any of its
obligations hereunder solely on account of the occurrence of Unavoidable Delays
which are beyond such other party's reasonable control shall not be deemed to be
a breach hereof and that the applicable time limit Provision with respect
thereto shall be extended for the same amount of time as that lost on account of
the Unavoidable Delays. Subject only to the foregoing, time is of the essence
in the performance of this Agreement.
Unavoidable Delays shall mean, with respect to the obligations of any
party, delays in the performance of such obligations directly resulting from
acts of God, war, national emergency, governmental restriction, civil commotion,
embargo, litigation, riots, strikes, picketing, lockouts, unavailability of
materials for which no substitute is readily available, fire, other unavoidable
catastrophe and all other causes or events (other than non-availability of
funds) which are beyond the applicable party's control, provided that
satisfactory evidence of the occurrence thereof has been furnished within ten
(10) days of the occurrence thereof by the party affected thereby to the Owner
or Manager (as the case may be).
27
<PAGE>
I. Arbitration of Disputes.
All claims, disputes and other matters in question between the parties
arising out of or relating to this Agreement or the breach thereof may be
decided by arbitration in Los Angeles, California in accordance with rules of
the American Arbitration Association then applying if both parties agree as
hereinafter provided. Written Notice of the demand for arbitration shall be
filed in writing with the other party to this Agreement and the American
Arbitration Association within a reasonable time after the claim, dispute or
other matter in question has arisen, and in no event shall it be made after the
date when institution of legal or equitable proceedings based upon such claim,
dispute or other matter in question would be barred by the applicable statute of
limitations. Unless the other party, within ten (10) days of the receipt of
such written Notice, sends to the claimant a written objection to such
arbitration proceedings, then both parties shall be deemed to have elected to
arbitrate such dispute. In the absence of such agreement, either party may
resort to judicial proceedings.
In rendering any award, the arbitrator or arbitrators shall not deviate
from or add to the provisions of this Agreement. The award rendered in the
arbitration shall be final, and judgment may be entered upon it in accordance
with applicable Law in any court having jurisdiction thereof. Reasonable costs,
expenses and fees (including, without limitation, attorneys' fees) of the
prevailing party in such arbitration shall be assessed against the non-
prevailing party in the award.
Manager shall continue to carry on its obligations hereunder during any
arbitration proceedings, and Owner shall continue to make payments to Manager in
accordance with the terms of this Agreement (which payments may be made to an
escrow agent if Owner disputes its obligation to make the same), unless the
matter in dispute concerns the termination of this Agreement, in which event the
parties must expressly agree in writing that the parties shall continue to
perform pending an award in the arbitration proceedings.
J. Interpretation.
All headings are inserted in this Agreement only for convenience and ease
of reference and are not to be considered in the construction or interpretation
of this Agreement. Unless the context clearly requires otherwise: (a) words
such as "include," "including," or "such as" shall be interpreted as if followed
by the words "without limitation"; and (b) any reference to an Article, Section,
or other subdivision, or Exhibit or Schedule, is intended to refer to an
Article, Section, or other subdivision, or Exhibit or Schedule, of this
Agreement. In the event of any inconsistency between the text of this Agreement
and any Exhibit or Schedule attached hereto, the text shall govern.
This Agreement shall be so construed that whenever applicable the use of
the singular number shall include the plural number, and the use of the plural
number shall include the singular number, and the use of the feminine,
masculine, or neuter gender shall include the other genders.
K. Representations.
Manager represents and warrants that it is fully qualified and licensed,
to the extent required by law, to manage and lease real estate and interests
therein in the State of California and to perform all obligations of Manager
hereunder. Manager agrees to comply with all such laws now or hereafter in
effect.
28
<PAGE>
L. Further Assurances.
Owner and Manager agree to execute such other documents and perform such
other acts as may be necessary or desirable to carry out the purposes of this
Agreement.
M. Third Parties.
Neither this Agreement nor any provision hereof nor any service,
relationship or other matter alluded to herein shall inure to the benefit of any
third party, to any trustee in bankruptcy, to any assignee for the benefit of
creditors, to any receiver by reason or insolvency, to any another fiduciary or
officer representing a bankrupt or insolvent estate of either party, or to the
creditors or claimants of such an estate.
N. No Interest or Lien.
This Agreement does not constitute an interest in or lien upon real
property. It shall not be recorded in the public records of where the
Properties is located and shall not constitute or establish any basis, for
claim, for filing of a lis pendens or notice of pendency or claim of lien.
O. No Sales Agreement.
Manager is not authorized to list the Properties for sale or to negotiate
with prospective purchasers of the Properties. If Owner should sell the
Properties or enter into an agreement with a prospective purchaser with respect
to a sale of the Properties, Manager shall not be entitled to any sales
brokerage commission, finder's fee or any other compensation unless Owner has
entered into a separate written listing agreement or sales broker agreement with
Manager.
P. Confidentiality.
Manager shall not make any public announcement concerning the negotiation
or consummation of this Agreement or any Lease, contract or other transaction
contemplated by this Agreement, or of any of the terms of this Agreement or any
such Lease, contract or other transaction, without Owner's prior consent, which
consent may be granted or denied in Owner's sole discretion. Manager shall keep
confidential all information pertaining to the leasing, operation and management
of the Properties and all financial information pertaining to the Properties and
to Owner and the partners of Owner (direct and indirect) and their affiliates.
Except as may be required by law, Manager shall not disclose any such
information without Owner's prior consent, which consent may be granted or
denied in Owner's sole discretion.
Q. No Waiver.
No consent or waiver, express or implied, by either party to any breach or
default by the other party in the performance of any of its obligations under
this Agreement shall be deemed or construed to be a consent or waiver to or of
any other breach or default in performance by such other party of such
obligation or of any party of such obligation or of any other obligation under
this Agreement. To be effective, any waiver must be in writing and be signed by
the party intended to be bound thereby.
29
<PAGE>
R. Exculpation.
(i) No general or limited partner of Owner nor any partner, shareholder,
officer or director of Owner or any partner of Owner (direct or indirect) shall
be personally liable for the performance of any such party's obligations under
this Agreement, it being understood that the liability of Owner for Owner's
obligations under this Agreement shall be limited to its interest in the
Properties and the proceeds thereof and Manager shall not look to any of the
other assets of Owner or any assets of any of the aforesaid parties in seeking
either to enforce Owner's obligations under this Agreement or to satisfy a
judgment for Owner's failure to perform such obligations.
(ii) No general or limited partner of Manager nor any shareholder,
officer or director of any partner of Manager (direct or indirect) shall be
personally liable for the performance of any such party's obligations under this
Agreement, provided, however, nothing contained herein shall be deemed to
exculpate the aforesaid parties from liability arising out of theft, gross
negligence or fraud on the part of Manager.
S. Additional Remedies.
The rights and remedies of the parties under this Agreement shall not be
mutually exclusive. The exercise of one or more of the remedial provisions of
this Agreement shall not preclude the exercise of any other remedial provisions
hereof.
T. Owner's Approval, Consent, Direction and Authorization.
Any reference to Owner's approval, consent, direction or authorization in
this Agreement shall mean the written approval, consent, direction or
authorization of Owner, which may (unless expressly provided otherwise herein)
be granted or withheld in Owner's sole discretion.
U. Partial Invalidity.
If any term, covenant, condition or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent be
invalid, unenforceable or violate a party's legal rights, then such term,
covenant, condition or provision shall be deemed to be null and void and
unenforceable; however, all other provisions of this Agreement, or the
application of such term or provision to persons or circumstances other than
those to which are held invalid, unenforceable or violative of legal rights,
shall not be affected thereby, and each and every other term, condition,
covenant and provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
30
<PAGE>
IN WITNESS WHEREOF Owner and Manager have executed this Agreement as of
the Commencement Date.
"Owner" "Manager"
_______ KILROY REALTY, L.P.
By: KILROY REALTY CORPORATION,
By: ______________________ its: General Partner
By: ________________________
its:
31
<PAGE>
EXHIBIT 10.27
ENVIRONMENTAL INDEMNITY AGREEMENT
---------------------------------
This Environmental Indemnity Agreement (this "Indemnity Agreement") is
-------------------
entered into as of ________ __, 199_, by [INDEMNITOR] ("Indemnitor") in favor of
----------
each Bank (as defined in the Credit Agreement (as hereinafter defined)) (each, a
"Lender" and collectively, the "Lenders") and MORGAN GUARANTY TRUST COMPANY OF
------ -------
NEW YORK, as lead agent (together with its successors in such capacity, the
"Agent") for Lenders pursuant to that certain Revolving Credit Agreement (the
- ------
"Credit Agreement"), dated as of even date herewith, among the Borrower (as
----------------
hereinafter defined), Lenders and the Agent, with reference to the following
facts:
A. [Kilroy Realty Corporation], a _______________ corporation (the
"Borrower") is the owner of the _____ (_) parcels of land (collectively, the
--------
"Land") as more particularly described in Exhibit A-1 through Exhibit A- and
- ----- ----------- -----------
the improvements located thereon (collectively, the "Property"); and
--------
B. Indemnitor is the sole beneficial owner of the Borrower.
C. Lenders have loaned or will loan to the Borrower the sum of up to
$75,000,000 (the "Loan"), payment of which is evidenced by certain notes of even
----
date herewith, from the Borrower to each Lender, all as more particularly
described in the Credit Agreement (individually and collectively, the "Note"),
----
which Note is secured by one or more Indenture(s) of Mortgage, Deed of Trust,
Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases
and Rents, of even date herewith (said Indenture(s) of Mortgage, Deed of Trust,
Deed to Secure Debt, Security Agreement, Financing Statement, Fixture Filing and
Assignment of Leases and Rents, whether one or more, and together with all
amendments, modifications, consolidations, increases, supplements and spreaders
thereof being herein collectively called the "Deed of Trust") encumbering the
-------------
Property (the Credit Agreement, the Deed of Trust, the Note, and any other
documents or instruments evidencing or securing the Loan, as amended or modified
from time to time, being herein sometimes called the "Loan Documents").
--------------
D. As a condition to making the Loan, Lenders require Indemnitor to
indemnify and hold harmless Lenders from any Environmental Claim, any
Requirements of Environ-
<PAGE>
mental Law, or the violation of any Environmental Approval (as these terms are
defined in Section 1 below) attributable to Material of Environmental Concern
(as defined in Section 1 below) and related to the Property. Lenders would not
make the Loan without this Indemnity Agreement and Indemnitor acknowledges and
understands that this Indemnity Agreement is a material inducement for Lenders'
agreement to make the Loan.
NOW, THEREFORE, Indemnitor agrees as follows:
1. Definitions. For purposes of this Indemnity Agreement, the
-----------
following terms shall have the following meanings:
(a) "Environmental Approval" shall have the meaning set forth in the
----------------------
Credit Agreement.
(b) "Environmental Claim" shall have the meaning set forth in the
-------------------
Credit Agreement.
(c) "Environmental Law" shall have the meaning set forth in the Credit
-----------------
Agreement.
(d) "Indemnitee" or "Indemnitees" means (individually and
---------- -----------
collectively), the Agent, Lenders, any purchaser or assignee of all or any
part of the Note, including, without limitation, any of each Lender's
participants in the Loan, and their respective affiliates, officers,
directors, shareholders, and employees and their respective successors and
assigns. Notwithstanding the foregoing, "Indemnitee(s)" does not include
any person or entity (other than Lenders, any purchaser or assignee of all
or any part of the Note, including, without limitation, any of Lenders'
participants in the Loan, or any affiliate of Lenders or such purchaser,
assignee or participant) who purchases or acquires all or any part of the
Property (i) by any foreclosure under the Deed of Trust, whether judicial
or non-judicial, or pursuant to the exercise of any power of sale
thereunder, or by deed in lieu of foreclosure or (ii) from Lenders, from
any purchaser or assignee of all or any part of the Note, including,
without limitation, any of Lenders' participants in the Loan, or from any
affiliate of Lenders or such purchaser, assignee or participant.
(e) The term "Material of Environmental Concern" shall have the
---------------------------------
meaning set forth in the Credit Agreement.
2
<PAGE>
(f) "Requirements" shall have the meaning set forth in the Credit
------------
Agreement.
(g) Terms not otherwise defined in this Indemnity Agreement shall
have the meanings ascribed to them in the Credit Agreement and the Deed of
Trust.
2. Indemnification. (a) Indemnitor shall protect, defend,
---------------
indemnify, and hold harmless Indemnitees from and against all liabilities,
losses, costs, damages, expenses or claims, including, but not limited to,
remedial, removal, response, abatement, cleanup, legal, investigative, and
monitoring costs and other related costs, expenses, losses, damages (excluding
any and all consequential damages, including, without limitation, diminution in
value), penalties, fines, liabilities, obligations, defenses, judgments, suits,
proceedings, and disbursements (including, without limitation, reasonable
attorneys' and experts' fees and disbursements) of any kind or of any nature
whatsoever (collectively "Costs and Liabilities"), which may at any time be
---------------------
imposed upon Indemnitee or incurred by any Indemnitee and which arise (directly
or indirectly): (i) from Requirements of Environmental Law applicable to the
Property, or any portion thereof; (ii) with respect to Environmental Claims
related to the Property; (iii) from the failure or alleged failure of the
Borrower, or the Indemnitor or any tenant or any other party directly or
indirectly connected with the Property, to obtain, maintain, or comply with any
Environmental Approval; and/or (iv) otherwise from the presence (occurring or
commencing prior to Lender's acquisition of the Property, or any portion
thereof), release, alleged presence, or alleged release of Material of
Environmental Concern in violation of Requirements of Environmental Law on or
under the Property, or the soil, groundwater or soil vapor on or under the
Property, or the migration, spreading, alleged migration, or alleged spreading
of Material of Environmental Concern from the Property in violation of
Requirements of Environmental Law, whether or not known to Indemnitor, whether
foreseeable or unforeseeable, regardless of the source of such presence or
release or, except as expressly provided in Section 2(c) hereof, regardless of
when such release or presence occurred. Each Indemnitee shall give prompt
written notice to the Agent of any matter for which such Indemnitee shall seek
indemnification hereunder, and the Agent shall, after receiving actual knowledge
of any matter for which Indemnitees may seek indemnification hereunder, give
prompt written notice thereof to Indemnitor (although the failure of the Agent
and/or any Indemnitee to provide such notice shall have no effect whatsoever on
the obligations of the Indemnitor hereunder unless such failure adversely
affects Indemnitor's obligations under this Agreement).
3
<PAGE>
(b) In the event that any investigation, site monitoring,
containment, cleanup, removal, restoration or other remedial work of any kind or
nature (the "Remedial Work") is required to be performed or undertaken by the
-------------
Borrower or Indemnitor pursuant to any applicable local, state or federal law or
regulation, any judicial order, or by any governmental entity because of, or in
connection with, the current or future presence (occurring or commencing prior
to Lender's acquisition of the Property, or any portion thereof), alleged
presence, release or alleged release of a Material of Environmental Concern in
or into the air, soil, groundwater, surface water or soil vapor at, on, about,
under or within the Property (or any portion thereof), Indemnitor shall within
thirty (30) days after written demand for performance thereof by Indemnitees (or
such shorter period of time as may be required under any applicable law,
regulation, order or agreement), (a) commence to perform, or cause to be
commenced, and thereafter diligently prosecuted to completion, all such Remedial
Work or (b) contest by proper proceedings or procedures the requirement to
perform the Remedial Work; provided, that such contest shall be prosecuted
--------
diligently and in good faith and such contest shall not expose any Indemnitee to
any civil or criminal penalty or liability. Upon demand of the Agent or any
other Indemnitee, Indemnitor shall furnish Indemnitees a surety bond or other
adequate security reasonably satisfactory to Indemnitees sufficient both to
indemnify Indemnitees against liability and hold the Property free from adverse
effect in the event the contest is not successful. All Remedial Work shall be
performed by one or more contractors, approved in advance in writing by the
Agent (which approval shall not be unreasonably withheld or delayed), and under
the supervision of a consulting engineer approved in advance in writing by the
Agent (which approval shall not be unreasonably withheld or delayed). All costs
and expenses of such Remedial Work shall be paid by Indemnitor including,
without limitation, the charges of such contractor(s) and/or the consulting
engineer, and the reasonable attorneys' fees and costs incurred by Indemnitees
in connection with the monitoring or review of such contractors and consulting
engineer. In the event Indemnitor shall fail to commence, or cause to be
commenced, such Remedial Work within such thirty (30) day (or such shorter)
period, or shall fail thereafter to prosecute such Remedial Work to completion
in a diligent manner after ten (10) days' written notice to Indemnitor (or such
shorter period as may be appropriate in the case of emergency), Indemnitees may,
but shall not be required to, cause such Remedial Work to be performed and all
reasonable costs and expenses thereof, or incurred in connection therewith,
shall become an Environmental Claim hereunder.
4
<PAGE>
(c) Anything to the contrary set forth in this Indemnity Agreement,
in the Deed of Trust, or elsewhere notwithstanding, Indemnitor shall not be
liable under this Indemnity Agreement to the extent of that portion of any Costs
and Liabilities which Indemnitor establishes is attributable to the gross
negligence or willful misconduct of any Indemnitee (or its agents or employees)
not affiliated with Indemnitor at the Property which causes (i) the introduction
or initial release of a Material of Environmental Concern at the Property, or
(ii) material aggravation of a then existing Material of Environmental Concern
condition or occurrence at the Property. In addition, if the Agent, any
Lender(s) or any affiliate(s) of either or any other person or entity acquire
ownership of the Property through a foreclosure, or the exercise of a power of
sale under the Deed of Trust or deed in lieu of foreclosure, Indemnitor shall
not be liable hereunder for that portion of any Costs and Liabilities which
Indemnitor establishes is attributable to (y) the introduction or initial
release of a Material of Environmental Concern at the Property by any party,
other than the Borrower, any other Indemnitor or an affiliate of Indemnitor, at
any time after the Agent, Lender(s), such affiliate(s) or such other person or
entity have acquired title to the Property or (z) material aggravation of a then
existing Material of Environmental Concern condition or occurrence at the
Property by any party, other than the Borrower, Indemnitor or an affiliate of
Indemnitor, at any time after the Agent, Lender(s), such affiliate(s) or such
other person or entity have acquired title to the Property.
Notwithstanding the foregoing, the liability of Indemnitor hereunder
shall otherwise remain in full force and effect after the Agent, Lender(s) or
such affiliate(s) so acquire title to the Property, including without limitation
with respect to any Material of Environmental Concern which is discovered at the
Property after the date the Agent, Lender(s) or such affiliate(s) acquire title
but which was actually introduced to the Property prior to the date of such
acquisition, and with respect to any continuing migration or release of any
Material of Environmental Concern introduced at the Property prior to the date
that the Agent, Lender(s) or such affiliate(s) acquire title.
(d) This Indemnity Agreement is solely intended to protect Lenders
from the matters set forth in the preceding paragraphs 2(a) and 2(b) and is not
intended to secure payment of the Note or amounts due to Lenders under the Deed
of Trust. This Indemnity Agreement is not intended to be, nor shall it be,
secured by the Deed of Trust or any of the other Loan Documents. The
obligations of Indemnitor
5
<PAGE>
under this Indemnity Agreement shall be as set forth herein notwithstanding any
similar provisions in the Deed of Trust.
(e) Nothing contained in this Indemnity Agreement shall prevent or in
any way diminish or interfere with any rights and remedies, including without
limitation, the right to contribution, which Lenders may have against the
Borrower pursuant to the terms of the Deed of Trust Indemnitor or any other
party (or which Indemnitor or the Borrower may have against Lenders or any other
party) under the Federal Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (codified at Title 42 U.S.C. (S)(S) 9601 et seq.), as it
may be amended from time to time, or any other applicable Federal or state laws.
3. Notice of Actions. (a) Indemnitor shall give immediate written
-----------------
notice to the Agent of each of the following (provided that Indemnitor has
knowledge thereof): (i) any proceeding, written (or material non-written)
inquiry, notice, or other communication by or from any governmental authority,
including, without limitation, the Environmental Protection Agency and state and
local equivalents, regarding the presence or existence of any Material of
Environmental Concern on, under, or about the Property or any migration thereof
from or to the Property or any actual or alleged violation of the Requirements
of Environmental Law; (ii) all Environmental Claims and any other written claims
made or threatened against the Borrower or Indemnitor or the Property relating
to any loss or injury resulting from or pertaining to any Material of
Environmental Concern or any alleged breach or violation of any Requirements of
Environmental Law; (iii) the Borrower's or Indemnitor's discovery of any
occurrence or condition on any real property adjoining or in the vicinity of the
Property that could reasonably cause the Property or any part thereof to be
subject to any material restrictions on ownership, occupancy, transferability,
or use, or subject the owner or any person having any interest in the Property
to any material liability, penalty, or disability under any Requirement of
Environmental Law; and (iv) the Borrower's or Indemnitor's receipt of any
written notice or discovery of any information regarding any actual or alleged
use, manufacture, production, storage, spillage, seepage, release, discharge,
disposal or any other presence or existence of any Material of Environmental
Concern on, under, or about the Property, in violation of any Requirements of
Environmental Law pertaining to Indemnitor or the Property.
(b) Immediately upon the Borrower's or Indemnitor's receipt of the
same, Indemnitor shall deliver to the Agent copies of any and all Environmental
Claims, and
6
<PAGE>
any and all orders, notices, permits, applications, reports, and other
communications, documents, and instruments pertaining to the actual or alleged
presence or existence of any Material of Environmental Concern on, under, or
about the Property in violation of any Requirements of Environmental Law.
4. Procedures Relating to Indemnification. (a) Indemnitor shall at
--------------------------------------
its own cost, expense, and risk: (i) defend all suits, actions, or other legal
or administrative proceedings that may be brought or instituted against an
Indemnitee or Indemnitees, as the case may be, on account of any matter or
matters arising under or within Section 2 above; (ii) pay or satisfy any
judgment or decree that may be recorded against an Indemnitee or Indemnitees, as
the case may be, in any such suit, action, or other legal or administrative
proceedings; and (iii) reimburse Indemnitee or Indemnitees, as the case may be,
for the cost of, or for any payment made by any of them, with respect to any
reasonable expenses incurred in connection with the Material of Environmental
Concern undertaken as a result of any demands, causes of actions, lawsuits,
proceedings, or any other claims threatened, made, or brought against any
Indemnitee or Indemnitees, as the case may be, arising out of the obligations of
Indemnitor under this Indemnity Agreement or the Borrower under the Deed of
Trust. Indemnitor shall have no liability under this paragraph (a) unless the
Agent shall, after receiving actual knowledge of any suit, action or proceeding
for which Indemnitees may seek indemnification under this paragraph (a), have
given reasonable written notice thereof to Indemnitor.
(b) Counsel selected by Indemnitor pursuant to Section 4(a) above
shall be subject to the reasonable approval of the Indemnitee or Indemnitees, as
the case may be, asserting a claim hereunder; provided, however, that Indemnitee
-------- -------
or Indemnitees, as the case may be, may elect to defend any such claim, lawsuit,
action, legal, or administrative proceeding at the cost and expense of
Indemnitor, if, in the reasonable judgment of the Indemnitee or Indemnitees, as
the case may be, (i) the defense is not proceeding or being conducted in a
satisfactory manner, or (ii) there is a conflict of interest between any of the
parties to such lawsuit, action, legal, or administrative proceeding, and in
either case Indemnitor have not provided substitute counsel reasonably
satisfactory to Indemnitees promptly after written request therefor by
Indemnitees.
(c) Notwithstanding anything in this Indemnity Agreement to the
contrary, Indemnitor shall not, nor shall Indemnitor allow the Borrower without
the prior written consent of the Agent (which consent shall not be unreasonably
7
<PAGE>
withheld or delayed)to , (i) settle or compromise any action, suit, proceeding,
or claim relating, directly or indirectly, to any Material of Environmental
Concern or any Environmental Claim or consent to the entry of any judgment
therein for which the Agent or Lenders might be wholly or partially liable that
does not include as an unconditional term thereof the delivery by the claimant
or plaintiff to the Agent and Lenders of a written release of the Agent and
Lenders (in form, scope and substance satisfactory to the Agent and Lenders in
their reasonable judgment) from all liability in respect of such action, suit,
or proceeding; or (ii) settle or compromise any action, suit, proceeding, or
claim relating, directly or indirectly, to any Material of Environmental Concern
or any Environmental Claim in any manner that may materially and adversely
affect the Agent or Lenders as determined by any Lender and/or the Agent in
their reasonable judgment.
(d) Without limiting the rights of Indemnitor pursuant to Section
4(b) above, the Agent and Lenders shall have the right (upon written notice to
Indemnitor) to join and participate in, as a party if they so elect, any legal
proceedings or actions in connection with the Property involving any
Environmental Claim, any Material of Environmental Concern or any Requirements
of Environmental Law. In any circumstance in which this indemnity applies, the
Agent and Lenders may employ their own legal counsel and consultants to
prosecute or defend any claim, action, or cause of action. Indemnitor shall have
the right to compromise or settle the same in good faith without the necessity
of showing actual liability therefor, with the consent of Indemnitees (which
consent shall not be unreasonably withheld or delayed). Indemnitor shall
reimburse the Agent and Lenders upon demand for all reasonable costs and
expenses incurred by the Agent and Lenders, including the amount of all costs of
settlements entered into in accordance with the preceding sentence, and the fees
and other costs and expenses of its attorneys and consultants including without
limitation those incurred in connection with monitoring and participating in any
action or proceeding, including costs incurred pursuant to Section 4(b) above.
5. Binding Effect. This Indemnity Agreement shall be binding upon
--------------
and inure to the benefit of Indemnitor and Indemnitees and their respective
successors and assigns.
6. Limitation of Liability of Indemnitees. Notwithstanding any
--------------------------------------
ownership by any Indemnitee at any time of all or any portion of the Property,
in no event shall any Indemnitee (including any successor or assign as holder of
8
<PAGE>
the Note) be bound by any obligations or liabilities of any of the Indemnitor
under this Indemnity Agreement.
7. Liability of Indemnitor. The liability of Indemnitor under this
-----------------------
Indemnity Agreement shall in no way be limited or impaired by any amendment or
modification of the provisions of the Loan Documents to or with the Agent or
Lenders by Indemnitor or any person who succeeds the Borrower as owner of the
Property. In addition, the liability of Indemnitor under this Indemnity
Agreement shall in no way be limited or impaired by (but subject in all events
to the terms set forth in Section 16 hereof) (i) any extensions of time for
performance required by any of the Loan Documents; (ii) any sale, assignment, or
foreclosure of the Note or Deed of Trust or any sale or transfer of all or part
of the Property or any interest(s) therein; (iii) any exculpatory provision in
any of the Loan Documents limiting Lenders' recourse to property encumbered by
the Deed of Trust or to any other security, or limiting Lenders' rights to a
deficiency or other judgment against Indemnitor or any other obligor or
guarantor thereunder (including, without limitation, Section 9.13(b) of the
Credit Agreement and the corresponding exculpation provisions set forth in the
Note, the Deed of Trust and this Indemnity Agreement); (iv) the accuracy or
inaccuracy of the representations and warranties made by the Borrower under any
of the Loan Documents; (v) the release of the Borrower or any other person or
entity from performance or observance of any of the agreements, covenants,
terms, or conditions contained in any of the Loan Documents by operation of law,
Lenders' voluntary act, or otherwise; (vi) the release or substitution in whole
or in part of any security for the Note; or (vii) Lenders' failure to record any
Deed of Trust or file any UCC financing statements (or Lenders' improper
recording or filing of any thereof) or otherwise to perfect, protect, secure, or
insure any security interest or lien given as security for the Note; and, in any
such case, whether with or without notice to Indemnitor and with or without
consideration.
8. Waiver. Indemnitor waives any right or claim of right to cause a
------
marshaling of the assets of Indemnitor or to cause Lenders and/or the Agent to
proceed against any of the security for the Loan before proceeding under this
Indemnity Agreement against Indemnitor or to proceed against Indemnitor in any
particular order; Indemnitor agrees that any payments required to be made
hereunder shall become due on demand; Indemnitor expressly waives and
relinquishes all rights and remedies accorded by applicable law to indemnitors
or guarantors, except any rights of subrogation that Indemnitor may have;
provided, that the indemnity provided for hereunder shall neither be contingent
- --------
upon the
9
<PAGE>
existence of any such rights of subrogation nor subject to any claims or
defenses whatsoever that may be asserted in connection with the enforcement or
attempted enforcement of such subrogation rights, including, without limitation,
any claim that such subrogation rights were abrogated by any acts of Lenders
and/or the Agent. Indemnitor hereby agrees to postpone the exercise of any and
all rights of subrogation to the rights of Lenders and/or the Agent against the
Borrower hereunder and any rights of subrogation to any collateral securing the
Loan until the Loan shall have been paid in full.
9. Delay. No delay on the Lenders' and/or the Agent's part in
-----
exercising any right, power, or privilege under any of the Loan Documents shall
operate as a waiver of any such privilege, power, or right.
10. Notices. (a) All notices, consents, approvals, elections and
-------
other communications (collectively "Notices") hereunder shall be in writing
-------
(whether or not the other provisions of this Indemnity Agreement expressly so
provide) and shall be deemed to have been duly given if delivered by nationally
recognized overnight courier service or certified mail, with return receipt
requested, postage prepaid, to such parties at the address set forth below (or
at such other addresses as shall be given in writing by any party to the others
pursuant to this Section) and shall be deemed received by the party to whom it
is addressed on the first Domestic Business Day after delivery by the sender to
a nationally recognized overnight courier service or on the third Domestic
Business Day after mailing if sent by certified mail:
To Indemnitor:
Kilroy Realty Corporation
Attention:
with a copy to:
Latham & Watkins
633 West 5th Street
Suite 4000
Los Angeles, CA 90071
Attention: Martha B. Jordan
10
<PAGE>
To the Lenders and/or the Agent:
Morgan Note Trust Company
of New York
60 Wall Street
New York, New York 10260
Attention: Timothy O'Donovan
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022-3897
Attention: Martha Feltenstein, Esq.
(b) In the event of any strike or occurrence of another similar event
which interrupts mail service, notices may be served personally upon an
individual, trustee, partner, or an officer or director of a corporation which
is or is part of the party being served hereunder (all at the address set forth
in this Section).
11. Attorneys' Fees. In the event that Indemnitor or any Indemnitee
---------------
brings any suit or other proceeding with respect to the subject matter or
enforcement of this Indemnity Agreement, the prevailing party (as determined by
the court, agency or other authority before which such suit or proceeding is
commenced) shall, in addition to such other relief as may be awarded, be
entitled to recover attorneys' fees, expenses and costs of investigation as
actually incurred (including, without limitation, attorneys' fees, expenses and
costs of investigation incurred in appellate proceedings, costs incurred in
establishing the right to indemnification, or in any action or participation in,
or in connection with, any case or proceeding under Chapters 7, 11 or 13 of the
Bankruptcy Code, 11 United States Code Sections 101 et seq., or any successor
-- ---
statutes).
12. Successive Actions. A separate right of action hereunder shall
------------------
arise each time the Agent or the Lenders acquire knowledge of any matter
described in Sections 2 or 3 hereof. Separate and successive actions may be
brought hereunder to enforce any of the provisions hereof at any time and from
time to time. No action hereunder shall preclude any subsequent action, and
Indemnitor hereby waives and covenants not to assert any defense in the nature
of splitting of causes of action or merger of judgments.
13. Partial Invalidity. If any provision of this Indemnity Agreement
------------------
shall be determined to be unenforceable in any circumstances by a court of
competent jurisdiction,
11
<PAGE>
then the balance of this Indemnity Agreement nevertheless shall be enforceable,
and the subject provision shall be enforceable in all other circumstances.
14. Interest on Unpaid Amounts. All amounts required to be paid or
--------------------------
reimbursed to any Indemnitee hereunder shall bear interest from the date of
expenditure by such Indemnitee or the date of written demand to any Indemnitor
hereunder, whichever is earlier, until paid to Indemnitee(s). The annual
interest rate shall be the lesser of (a) a rate equal to the Default Rate (as
defined in the Deed of Trust) or (b) the maximum rate then permitted for the
parties to contract for under applicable law.
15. Governing Law. This Indemnity Agreement and the rights and
-------------
obligations of the parties hereunder shall in all respects be governed by, and
construed and enforced in accordance with, the laws of the State of New York
(without giving effect to New York's principles of conflicts of law).
Indemnitor hereby irrevocably submits to the non-exclusive jurisdiction of any
New York state or federal court sitting in the City of New York over any suit,
action or proceeding arising out of or relating to this Indemnity Agreement, and
Indemnitor hereby agrees and consents that, in addition to any other methods of
service of process in any such suit, action or proceeding in any New York state
or federal court sitting in the City of New York, service of process may be made
by certified or registered mail, return receipt requested, directed to
Indemnitor at its address indicated in Section 10 hereof, and service so made
shall be complete five (5) days after the same shall have been so mailed.
16. Termination of Indemnity. Notwithstanding anything to the
------------------------
contrary contained elsewhere in this Indemnity Agreement, subject to the
following sentence, the indemnity provided for herein and this Indemnity
Agreement shall terminate and be of no further force and effect upon the earlier
to occur of (a) repayment in full of all principal, interest and any other sums
due under, or evidenced by, the Credit Agreement, the Deed of Trust and the
other Loan Documents and (b) two (2) years after the date on which the Lenders
or any affiliate thereof (or any other Person (other than the Borrower) acting
through or on behalf of the Lenders, there respective successors and assigns,
and any affiliates thereof) acquires possession of or title to, the Property.
Notwithstanding the foregoing, any claim hereunder may be made at any time
before the date described in the preceding sentence, and once such claim has
been made prior to such date, the obligations of Indemnitor under this Indemnity
Agreement shall continue to apply to such claim, to the extent permitted by
applicable law.
12
<PAGE>
IN WITNESS WHEREOF, Indemnitor has executed this Indemnity Agreement
as of the date first set forth above.
[INDEMNITOR]
By: _______________________
Name:
Title:
13
<PAGE>
ACKNOWLEDGMENT FOR INDEMNITOR
-----------------------------
STATE OF )
) ss.:
COUNTY OF )
On ________ __, 199_, before me personally came ______________, to me
known to be the person who executed the foregoing instrument.
[Seal]
_____________________________
Notary Public
14
<PAGE>
EXHIBIT 23.3
REPORT AND CONSENT OF INDEPENDENT AUDITORS
We consent to the use in this Registration Statement of Kilroy Realty
Corporation on Form S-11 of our reports on Kilroy Realty Corporation, dated
October 25, 1996, Kilroy Group ("Predecessor Affiliates"), dated December 20,
1996, and the Acquisition Properties dated December 20, 1996, appearing in
this Registration Statement, and to the references to us under the captions
"Selected Combined Financial Data" and "Experts."
Our audits of the financial statements referred to in our aforementioned
report also included the combined financial statement schedule of Kilroy Group
listed in Item 35. This combined financial statement schedule is the
responsibility of the management of Kilroy Group. Our responsibility is to
express an opinion based on our audits. In our opinion, such financial
statement schedule, when considered in relation to the basic financial
statements taken as a whole, presents fairly in all material respects the
information set forth therein.
/s/ DELOITTE & TOUCHE LLP
Los Angeles, California
January 28, 1997
<PAGE>
EXHIBIT 23.4
CONSENT OF ROBERT CHARLES LESSER & CO.
To Kilroy Realty Corporation:
As experts in real estate consulting and urban economics, we hereby consent
to the use of our Regional Economic Overview and Market Analysis dated January
2, 1997 and to all references to our firm included in or made a part of this
Registration Statement.
/s/ Robert Charles Lesser & Co.
-------------------------------------
Robert Charles Lesser & Co.
Los Angeles, California
January 28, 1997
