<PAGE>
EXHIBIT 10.1
____________________________________________________________________
____________________________________________________________________
CREDIT AGREEMENT,
dated as of September 7, 2000,
among
KILROY REALTY, L.P.,
as Borrower,
THE CHASE MANHATTAN BANK,
as Bank and as Syndication Agent,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Bank and as Administrative Agent for the Banks,
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK AND GRAND CAYMAN BRANCHES,
as Documentation Agent,
CHASE SECURITIES INC.,
as Lead Arranger and Joint Bookmanager,
J.P. MORGAN SECURITIES INC.,
as Lead Arranger and Joint Bookmanager,
and
THE BANKS LISTED HEREIN
____________________________________________________________________
____________________________________________________________________
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
ARTICLE I
DEFINITIONS
<S> <C>
Section 1.1 Definitions........................................ 1
Section 1.2 Accounting Terms and Determinations................ 24
Section 1.3 Types of Borrowings................................ 24
ARTICLE II
THE LOANS
Section 2.1 Commitments and Loans.............................. 25
Section 2.2 Notice of Borrowing................................ 25
Section 2.3 Intentionally Deleted.............................. 25
Section 2.4 Notice to Banks; Funding of Loans.................. 25
Section 2.5 Notes.............................................. 26
Section 2.6 Maturity of Loans.................................. 26
Section 2.7 Interest Rates..................................... 27
Section 2.8 Fees............................................... 28
Section 2.9 Mandatory Termination.............................. 29
Section 2.10 Mandatory Prepayment............................... 30
Section 2.11 Optional Prepayments............................... 31
Section 2.12 General Provisions as to Payments.................. 32
Section 2.13 Funding Losses..................................... 33
Section 2.14 Computation of Interest and Fees................... 33
Section 2.15 Method of Electing Interest Rates.................. 34
ARTICLE III
CONDITIONS
Section 3.1 Closing............................................ 35
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Existence and Power................................ 39
Section 4.2 Power and Authority................................ 39
Section 4.3 No Violation....................................... 39
Section 4.4 Financial Information.............................. 40
Section 4.5 Litigation......................................... 40
</TABLE>
i
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<TABLE>
<S> <C>
Section 4.6 Compliance with ERISA.............................. 41
Section 4.7 Environmental Compliance........................... 41
Section 4.8 Taxes.............................................. 43
Section 4.9 Full Disclosure.................................... 43
Section 4.10 Solvency........................................... 43
Section 4.11 Use of Proceeds; Margin Regulations................ 44
Section 4.12 Governmental Approvals............................. 44
Section 4.13 Investment Company Act; Public Utility Holding
Company Act....................................... 44
Section 4.14 Closing Date Transactions.......................... 44
Section 4.15 Representations and Warranties in Loan Documents... 44
Section 4.16 Patents, Trademarks, etc........................... 44
Section 4.17 No Default......................................... 45
Section 4.18 Licenses, etc...................................... 45
Section 4.19 Compliance With Law................................ 45
Section 4.20 No Burdensome Restrictions......................... 45
Section 4.21 Brokers' Fees...................................... 45
Section 4.22 Labor Matters...................................... 46
Section 4.23 Organizational Documents........................... 46
Section 4.24 Principal Offices.................................. 46
Section 4.25 REIT Status........................................ 46
Section 4.26 Ownership of Property.............................. 46
Section 4.27 Insurance.......................................... 46
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
Section 5.1 Information........................................ 47
Section 5.2 Payment of Obligations............................. 47
Section 5.3 Maintenance of Property; Insurance................. 50
Section 5.4 Conduct of Business................................ 51
Section 5.5 Compliance with Laws............................... 51
Section 5.6 Inspection of Property, Books and Records.......... 51
Section 5.7 Existence.......................................... 51
Section 5.8 Financial Covenants................................ 52
Section 5.9 Restriction on Fundamental Changes; Operation and
Control........................................... 53
Section 5.10 Changes in Business................................ 54
Section 5.11 Sale of Unencumbered Asset Pool Properties......... 54
Section 5.12 Fiscal Year; Fiscal Quarter........................ 54
Section 5.13 Margin Stock....................................... 54
Section 5.14 Development Activities............................. 54
Section 5.15 Interest Rate Protection........................... 55
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
Section 5.16 Joint Ventures..................................... 55
Section 5.17 Investments in Unimproved Real Property............ 55
Section 5.18 Use of Proceeds.................................... 55
Section 5.19 General Partner Status............................. 55
Section 5.20 Certain Requirements for the Unencumbered Asset
Pool.............................................. 55
ARTICLE VI
DEFAULTS
Section 6.1 Events of Default.................................. 56
Section 6.2 Rights and Remedies................................ 59
Section 6.3 Notice of Default.................................. 60
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.1 Appointment and Authorization...................... 60
Section 7.2 Administrative Agent and Affiliates................ 61
Section 7.3 Action by Administrative Agent..................... 61
Section 7.4 Consultation with Experts.......................... 61
Section 7.5 Liability of Administrative Agent.................. 61
Section 7.6 Indemnification.................................... 62
Section 7.7 Credit Decision.................................... 62
Section 7.8 Successor Administrative Agent..................... 62
Section 7.9 Administrative Agent's Fee......................... 63
Section 7.10 Copies of Notices.................................. 63
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.1 Basis for Determining Interest Rate Inadequate or
Unfair............................................ 63
Section 8.2 Illegality......................................... 64
Section 8.3 Increased Cost and Reduced Return.................. 65
Section 8.4 Taxes.............................................. 66
Section 8.5 Base Rate Loans Substituted for Affected Euro-
Dollar Loans...................................... 68
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices............................................ 69
Section 9.2 No Waivers......................................... 69
</TABLE>
iii
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<TABLE>
<S> <C>
Section 9.3 Expenses; Indemnification.......................... 70
Section 9.4 Sharing of Set-Offs................................ 71
Section 9.5 Amendments and Waivers............................. 72
Section 9.6 Successors and Assigns............................. 72
Section 9.7 Governing Law; Submission to Jurisdiction.......... 74
Section 9.8 Marshaling; Recapture.............................. 75
Section 9.9 Counterparts; Integration; Effectiveness........... 75
Section 9.10 WAIVER OF JURY TRIAL............................... 76
Section 9.11 Survival........................................... 76
Section 9.12 Domicile of Loans.................................. 76
Section 9.13 Limitation of Liability............................ 76
</TABLE>
iv
<PAGE>
Exhibit A - Form of Note
Exhibit B - Unencumbered Asset Pool Properties (Fee Interests)
Exhibit C - Unencumbered Asset Pool Properties (Leasehold Interests)
Exhibit D - Form of Assignment and Assumption Agreement
Schedule 4.22- Labor Matters
v
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of September 7, 2000, among KILROY REALTY,
L.P., a Delaware limited partnership (the "Borrower"), THE CHASE MANHATTAN BANK,
--------
as Bank and as Syndication Agent, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Bank and as Administrative Agent for the Banks (the "Administrative Agent"),
--------------------
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK AND GRAND CAYMAN BRANCHES, as
Documentation Agent, CHASE SECURITIES INC., as Lead Arranger and Joint
Bookmanager, J.P. MORGAN SECURITIES INC., as Lead Arranger and Joint
Bookmanager, and the BANKS listed on the signature pages hereof (collectively,
the "Banks").
-----
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section I.1 Definitions. The following terms, as used herein, have
-----------
the following meanings:
"Adjusted London Interbank Offered Rate" has the meaning set forth in
--------------------------------------
Section 2.7(b).
"Adjustment Date" shall mean the date that the Borrower receives an
---------------
Investment Grade Rating for its unsecured senior long term indebtedness from at
least two (2) Rating Agencies, at least one (1) of which shall be either S&P or
Moody's.
"Administrative Agent" means Morgan Guaranty Trust Company of New York
--------------------
in its capacity as Administrative Agent for the Banks hereunder, and its
successors in such capacity.
"Administrative Questionnaire" means, with respect to each Bank, an
----------------------------
administrative questionnaire in the form prepared by the Administrative Agent
and
<PAGE>
submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
"Agreement" means this Credit Agreement as the same may from time to
---------
time hereafter be modified, supplemented or amended.
"Annual EBITDA" means, measured as of the last day of each calendar
-------------
quarter, an amount derived from (i) total revenues relating to all Real Property
Assets of the Borrower, the General Partner and their Consolidated Subsidiaries
or to the Borrower's or the General Partner's interest in Minority Holdings for
the previous four consecutive calendar quarters including the quarter then
ended, on an accrual basis with adjustments for the straight-lining of rents,
plus (ii) interest and other income of the Borrower, the General Partner and
----
their Consolidated Subsidiaries, including, without limitation, real estate
service revenues, for such period, less (iii) total operating expenses and other
----
expenses relating to such Real Property Assets and to the Borrower's and the
General Partner's interest in Minority Holdings for such period (other than
interest, taxes, depreciation, amortization, and other non-cash items), less
----
(iv) total corporate operating expenses (including general overhead expenses)
and other expenses of the Borrower, the General Partner, their Consolidated
Subsidiaries and the Borrower's and the General Partner's interest in Minority
Holdings (other than interest, taxes, depreciation, amortization and other non-
cash items), for such period.
"Applicable Interest Rate" means the lesser of (x) the rate at which
------------------------
the interest rate applicable to any floating rate Debt could be fixed, at the
time of calculation, by the Borrower entering into an unsecured interest rate
swap agreement (or, if such rate is incapable of being fixed by entering into an
unsecured interest rate swap agreement at the time of calculation, a reasonably
determined fixed rate equivalent), and (y) the rate at which the interest rate
applicable to such floating rate Debt is actually capped, at the time of
calculation, if the Borrower has entered into an interest rate cap agreement
with respect thereto or if the documentation for such Debt contains a cap.
"Applicable Lending Office" means, with respect to any Bank, (i) in
-------------------------
the case of its Base Rate Loans, its Domestic Lending Office, and (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Applicable Margin" means, prior to the Adjustment Date, with respect
-----------------
to each Euro-Dollar Loan, the respective percentages per annum determined,
2
<PAGE>
at any time, based on the range into which the Total Debt Ratio then falls, in
accordance with the table set forth below:
<TABLE>
<CAPTION>
Total Debt Ratio Applicable Margin for Euro-Dollar Loans
(% per annum)
----------------------------------------------------------------------------------
<S> <C>
less than 25% 1.125%
----------------------------------------------------------------------------------
equal to or greater than 25% but less 1.25%
than 35%
----------------------------------------------------------------------------------
equal to or greater than 35% but less 1.375%
than 45%
----------------------------------------------------------------------------------
equal to or greater than 45% but less 1.50%
than 50%
----------------------------------------------------------------------------------
equal to or greater than 50% but less 1.75%
than 55%
----------------------------------------------------------------------------------
</TABLE>
From and after the Adjustment Date, the Applicable Margin with respect to each
Euro-Dollar Loan shall mean the respective percentages per annum determined, at
any time, based on the range into which the Borrower's Credit Rating (if any)
then falls, in accordance with the table set forth below. Any change in the
Borrower's Credit Rating shall be effective immediately as of the date on which
any of the Rating Agencies announces a change in the Borrower's Credit Rating or
the date on which the Borrower (or as applicable, the General Partner) has no
credit rating, whichever is applicable. In the event that the Borrower (or as
applicable, the General Partner) receives two (2) credit ratings that are not
equivalent, the Applicable Margin shall be determined by the lower of such two
(2) credit ratings. In the event that Borrower (or as applicable, the General
Partner) receives more than two (2) credit ratings and such credit ratings are
not equivalent, the Applicable Margin shall be determined by the lower of the
two (2) highest ratings, provided that each of said two (2) highest ratings
shall be Investment Grade Ratings and at least one of which shall be an
Investment Grade Rating from S&P or Moody's.
3
<PAGE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------
Borrower's Credit Rating (S&P/Moody's Applicable Margin for Euro-Dollar Loans
Ratings) (% per annum)
----------------------------------------------------------------------------------
<S> <C>
BBB+/Baa1 1.00%
----------------------------------------------------------------------------------
BBB/Baa2 (or better) 1.10%
----------------------------------------------------------------------------------
BBB-/Baa3 1.20%
----------------------------------------------------------------------------------
Less than Investment Grade Rating 1.675%
----------------------------------------------------------------------------------
</TABLE>
"Assignee" has the meaning set forth in Section 9.6(c).
--------
"Bank" means each bank listed on the signature pages hereof, each
----
Assignee which becomes a Bank pursuant to Section 9.6(c), and their respective
successors.
"Bank Due Diligence Package" has the meaning provided in Section 3.2.
--------------------------
"Bankruptcy Code" means Title 11 of the United States Code, entitled
---------------
"Bankruptcy", as amended from time to time, and any successor statute or
statutes.
"Base Rate" means, for any day, a rate per annum equal to the higher
---------
of (i) the Prime Rate for such day and (ii) the sum of the Federal Funds Rate
plus .50%.
"Base Rate Borrowing" means a Borrowing comprised of Base Rate Loans.
-------------------
"Base Rate Loan" means a Loan to be made by a Bank as a Base Rate Loan
--------------
in accordance with the applicable Notice of Borrowing or pursuant to Article
VIII.
"Benefit Arrangement" means at any time an employee benefit plan
-------------------
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
4
<PAGE>
"Borrower" means Kilroy Realty, L.P., a Delaware limited partnership,
--------
and its successors.
"Borrower's Credit Rating" means the rating assigned by the Rating
------------------------
Agencies to the Borrower's or the General Partner's senior unsecured long term
indebtedness.
"Borrowing" has the meaning set forth in Section 1.3.
---------
"Capital Expenditures" means, for any period, the sum of all
--------------------
expenditures (whether paid in cash or accrued as a liability) by the Borrower
which are capitalized on the consolidated balance sheet of the Borrower in
conformity with GAAP, but less (i) all expenditures made with respect to the
acquisition by the Borrower and its Consolidated Subsidiaries of any interest in
real property within nine months after the date such interest in real property
is acquired and (ii) capital expenditures made from the proceeds of insurance or
condemnation awards (or payments in lieu thereof) or indemnity payments received
during such period by Borrower or any of its Consolidated Subsidiaries from
third parties.
"Cash or Cash Equivalents" means (i) cash, (ii) direct obligations of
------------------------
the United States Government, including, without limitation, treasury bills,
notes and bonds, (iii) interest bearing or discounted obligations of Federal
agencies and Government sponsored entities or pools of such instruments offered
by banks rated AA or better by S&P or Aa2 by Moody's and dealers, including,
without limitation, Federal Home Loan Mortgage Corporation participation sale
certificates, Government National Mortgage Association modified pass-through
certificates, Federal National Mortgage Association bonds and notes, Federal
Farm Credit System securities, (iv) time deposits, domestic and Eurodollar
certificates of deposit, bankers acceptances, commercial paper rated at least A-
1 by S&P and P-1 by Moody's, and/or guaranteed by an Aa rating by Moody's, an AA
rating by S&P, or better rated credit, floating rate notes, other money market
instruments and letters of credit each issued by banks which have a long-term
debt rating of at least AA by S&P or Aa2 by Moody's, (v) obligations of domestic
corporations, including, without limitation, commercial paper, bonds,
debentures, and loan participations, each of which is rated at least AA by S&P,
and/or Aa2 by Moody's, and/or unconditionally guaranteed by an AA rating by S&P,
an Aa2 rating by Moody's, or better rated credit, (vi) obligations issued by
states and local governments or their agencies, rated at least MIG-1 by Moody's
and/or SP-1 by S&P and/or guaranteed by an irrevocable letter of credit of a
bank with a long-term debt rating of at least AA by S&P or Aa2 by Moody's,
5
<PAGE>
(vii) repurchase agreements with major banks and primary government securities
dealers fully secured by U.S. Government or agency collateral equal to or
exceeding the principal amount on a daily basis and held in safekeeping, (viii)
real estate loan pool participations, guaranteed by an entity with an AA rating
given by S&P or an Aa2 rating given by Moody's, or better rated credit, and (ix)
shares of any mutual fund that has its assets primarily invested in the types of
investments referred to in clauses (i) through (v).
"Closing Date" means the date on which the Administrative Agent shall
------------
have received the documents specified in or pursuant to Section 3.1.
"Commitment" means, with respect to each Bank, the amount committed by
----------
such Bank pursuant to this Agreement with respect to any Loans, as such amount
may be reduced from time to time pursuant to Sections 2.10 and 2.11.
"Completion of Construction" means the issuance of a temporary or
--------------------------
permanent certificate of occupancy for the improvements under construction,
permitting the use and occupancy thereof for their regular intended uses.
"Consolidated Subsidiary" means at any date any Subsidiary or other
-----------------------
entity which is consolidated with the Borrower in accordance with GAAP.
"Consolidated Tangible Net Worth" means at any date the consolidated
-------------------------------
stockholders' equity of the Borrower (determined on a book basis), less its
consolidated Intangible Assets, all determined as of such date. For purposes of
this definition "Intangible Assets" means with respect to any such intangible
-----------------
assets, the amount (to the extent reflected in determining such consolidated
stockholders' equity) of (i) all write-ups subsequent to December 31, 1998 in
the book value of any asset owned by the Borrower or a Consolidated Subsidiary
and (ii) goodwill, patents, trademarks, service marks, trade names, anticipated
future benefit of tax loss carry forwards, copyrights, organization or
developmental expenses and other intangible assets.
"Contingent Obligation" as to any Person means, without duplication,
---------------------
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Person's financial statements,
guaranteeing partially or in whole any non-recourse Debt, lease, dividend or
other obligation, exclusive of contractual indemnities (including, without
limitation, any indemnity or
6
<PAGE>
price-adjustment provision relating to the purchase or sale of securities or
other assets) and guarantees of non-monetary obligations (other than guarantees
of completion) which have not yet been called on or quantified, of such Person
or of any other Person. The amount of any Contingent Obligation described in
clause (ii) shall be deemed to be (a) with respect to a guaranty of interest or
interest and principal, or operating income guaranty, the sum of all payments
required to be made thereunder (which in the case of an operating income
guaranty shall be deemed to be equal to the debt service for the note secured
thereby), calculated at the Applicable Interest Rate, through (i) in the case of
an interest or interest and principal guaranty, the stated date of maturity of
the obligation (and commencing on the date interest could first be payable
thereunder), or (ii) in the case of an operating income guaranty, the date
through which such guaranty will remain in effect, and (b) with respect to all
guarantees not covered by the preceding clause (a), an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
guaranty is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as recorded on the balance sheet and on the footnotes to the
most recent financial statements of the Borrower required to be delivered
pursuant to Section 4.4 hereof. Notwithstanding anything contained herein to the
contrary, guarantees of completion shall not be deemed to be Contingent
Obligations unless and until a claim for payment or performance has been made
thereunder, at which time any such guaranty of completion shall be deemed to be
a Contingent Obligation in an amount equal to any such claim. Subject to the
preceding sentence, (i) in the case of a joint and several guaranty given by
such Person and another Person (but only to the extent such guaranty is
recourse, directly or indirectly to the Borrower), the amount of the guaranty
shall be deemed to be 100% thereof unless and only to the extent that such other
Person has delivered Cash or Cash Equivalents to secure all or any part of such
Person's guaranteed obligations, (ii) in the case of joint and several
guarantees given by a Person in whom the Borrower owns an interest (which
guarantees are non-recourse to the Borrower), to the extent the guarantees, in
the aggregate, exceed 15% of total real estate investments, the amount in excess
of 15% shall be deemed to be a Contingent Obligation of the Borrower, and (iii)
in the case of a guaranty (whether or not joint and several) of an obligation
otherwise constituting Debt of such Person, the amount of such guaranty shall be
deemed to be only that amount in excess of the amount of the obligation
constituting Debt of such Person. Notwithstanding anything contained herein to
the contrary, "Contingent Obligations" shall not be deemed to include guarantees
of Unused Commitments or of construction loans to the extent the same have not
been drawn.
7
<PAGE>
"Debt" of any Person (including Minority Holdings) means, without
----
duplication, (A) as shown on such Person's consolidated balance sheet (i) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or any asset and, (ii) all indebtedness of such Person
evidenced by a note, bond, debenture or similar instrument (whether or not
disbursed in full in the case of a construction loan), (B) the face amount of
all letters of credit issued for the account of such Person and, without
duplication, all unreimbursed amounts drawn thereunder, (C) all Contingent
Obligations of such Person, (D) all payment obligations of such Person under any
interest rate protection agreement (including, without limitation, any interest
rate swaps, caps, floors, collars and similar agreements) or other hedging
agreements and currency swaps and foreign exchange contracts or similar
agreements which were not entered into specifically in connection with Debt set
forth in clauses (A), (B) or (C) hereof. For purposes of this Agreement, Debt
(other than Contingent Obligations) of the Borrower shall be deemed to include
only the Borrower's pro rata share (such share being based upon the Borrower's
percentage ownership interest as shown on the Borrower's annual audited
financial statements) of the Debt of any Person in which the Borrower, directly
or indirectly, owns an interest, provided that such Debt is nonrecourse, both
directly and indirectly, to the Borrower.
"Default" means any condition or event which constitutes an Event of
-------
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a Saturday, Sunday or
---------------------
other day on which commercial banks in New York City and Los Angeles are
authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office located
-----------------------
within the United States at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Domestic
Lending Office) or such other office within the United States as such Bank may
hereafter designate as its Domestic Lending Office by notice to the Borrower and
the Administrative Agent; provided that no Bank shall be permitted to change its
Domestic Lending Office if as a result of such change either (i) pursuant to the
provisions of Section 8.1 or Section 8.2, Borrower would be unable to maintain
any Loans as Euro-Dollar Loans; or (ii) Borrower would be required to make any
payment to such Bank pursuant to the provisions of Section 8.3 or Section 8.4.
8
<PAGE>
"Due Diligence Package" has the meaning provided in Section 3.2.
---------------------
"Duff & Phelps" means Duff & Phelps Credit Rating Co. or any successor
-------------
thereto.
"Environmental Affiliate" means any partnership, or joint venture,
-----------------------
trust or corporation in which an equity interest is owned by the Borrower,
either directly or indirectly.
"Environmental Approvals" means any permit, license, approval, ruling,
-----------------------
variance, exemption or other authorization required under applicable
Environmental Laws.
"Environmental Claim" means, with respect to any Person, any notice,
-------------------
claim, demand or similar communication (written or oral) by any other Person
alleging potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damage, property damage, personal
injuries, fines or penalties arising out of, based on or resulting from (i) the
presence, or release into the environment, of any Material of Environmental
Concern at any location, whether or not owned by such Person or (ii)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law, in each case as to which could reasonably be expected to have
a Material Adverse Effect.
"Environmental Laws" means any and all federal, state, local and
------------------
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Material of Environmental
Concern or hazardous wastes into the environment including, without limitation,
ambient air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Material of Environmental
Concern or hazardous wastes or the clean-up or other remediation thereof.
"Environmental Report" has the meaning set forth in Section 4.7.
--------------------
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, or any successor statute.
9
<PAGE>
"ERISA Group" means the Borrower, any Subsidiary and all members of a
-----------
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Borrowing" has the meaning set forth in Section 1.3.
---------------------
"Euro-Dollar Business Day" means any Domestic Business Day on which
------------------------
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
--------------------------
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Bank as
it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Administrative Agent; provided that no Bank shall be permitted
to change its Euro-Dollar Lending Office if as a result of such change either
(i) pursuant to the provisions of Section 8.1 or Section 8.2, Borrower would be
unable to maintain any Loans as Euro-Dollar Loans; or (ii) Borrower would be
required make any payment to such Bank pursuant to the provisions of Sections
8.3 or Section 8.4.
"Euro-Dollar Loan" means a Loan to be made by a Bank as a Loan bearing
----------------
interest at the Adjusted London Interbank Offered Rate in accordance with the
applicable Notice of Borrowing or Notice of Interest Rate Election.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
------------------------------
2.7(b).
"Event of Default" has the meaning set forth in Section 6.1.
----------------
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day; provided that (i) if such day is not a Domestic
--------
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the
10
<PAGE>
next preceding Domestic Business Day as so published on the next succeeding
Domestic Business Day, and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for such day shall be
the average rate quoted to Morgan on such day on such transactions as determined
by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System as constituted from time to time.
"Financeable Ground Lease" means either (x) a ground lease reasonably
------------------------
satisfactory to the Required Banks, or (y) a ground lease which provides (i) for
a remaining term of not less than 25 years (including options and renewals) from
the date that such Real Property Asset shall become an Unencumbered Asset Pool
Property, (ii) that the ground lease will not be terminated until any leasehold
mortgagee shall have received notice of a default and has had a reasonable
opportunity to cure the same or complete foreclosure, and has failed to do so,
(iii) for a new lease on substantially the same terms to any leasehold mortgagee
recognized under such ground lease as tenant if the ground lease is terminated
for any reason, (iv) for non-merger of the fee and leasehold estates, and (v)
transferability of the tenant's interest under the ground lease, subject only to
the landlord's reasonable approval. Notwithstanding the foregoing, it is hereby
agreed that the ground lease with respect to the Real Property Asset commonly
known as "Kilroy Airport Center, Long Beach, California ", shall be deemed to be
a "Financeable Ground Lease."
"FFO" means "funds from operations," defined to mean net income (or
---
loss) (computed in accordance with GAAP), excluding gains (or losses) from debt
restructurings and sales of properties, plus depreciation and amortization,
after adjustments for Minority Holdings. Adjustments for Minority Holdings will
be calculated to reflect FFO on the same basis as above.
"Fitch" means Fitch Investors Services, L.P. or any successor thereto.
-----
"FMV Cap Rate" means 9%.
------------
"GAAP" means generally accepted accounting principles recognized as
----
such in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and Board or in such
other statements by such other entity as may be approved by a significant
segment of the
11
<PAGE>
accounting profession, which are applicable to the circumstances as of the date
of determination.
"General Partner" means Kilroy Realty Corporation, a Maryland
---------------
corporation.
"Governmental Authority" means any Federal, state or local government
----------------------
or any other political subdivision thereof or agency exercising executive,
legislative, judicial, regulatory or administrative functions having
jurisdiction over the Borrower or any Unencumbered Asset Pool Property.
"Group of Loans" means, at any time, a group of Loans consisting of
--------------
(i) all Loans which are Base Rate Loans at such time, or (ii) all Loans which
are Euro-Dollar Loans having the same Interest Period at such time; provided
--------
that, if a Loan of any particular Bank is converted to or made as a Base Rate
Loan pursuant to Section 8.2 or 8.4, such Loan shall be included in the same
Group or Groups of Loans from time to time as it would have been in if it had
not been so converted or made.
"Guaranty" means the Guaranty of Payment, dated as of even date
--------
herewith, made by the General Partner.
"Indemnitee" has the meaning set forth in Section 9.3(b).
----------
"Interest Period" means: (i) with respect to each Euro-Dollar
---------------
Borrowing, the period commencing on the date of such Borrowing or of any Notice
of Interest Rate Election with respect to such Borrowing and ending one, two,
three or six months thereafter, as the Borrower may elect in the applicable
Notice of Borrowing or Notice of Interest Rate Election; provided that:
--------
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest
12
<PAGE>
Period) shall end on the last Euro-Dollar Business Day of a calendar month;
and
(ii) with respect to each Base Rate Borrowing, the period commencing
on the date of such Borrowing or Notice of Interest Rate Election and ending 30
days thereafter; provided that any Interest Period which would otherwise end on
--------
a day which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day.
"Interest Rate Hedges" shall mean interest rate exchange, collar, cap,
--------------------
swap, adjustable strike cap, adjustable strike corridor or similar agreements
having terms, conditions and tenors reasonably acceptable to the Administrative
Agent entered into by the Borrower, the General Partner and/or their
Subsidiaries in order to provide protection to, or minimize the impact upon, the
Borrower, the General Partner and/or their Subsidiaries of increasing floating
rates of interest applicable to Debt under clause (A) of the definition of Debt.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended, or any successor statute.
"Investment Grade Rating" means a rating for a Person's senior long-
-----------------------
term unsecured debt, or if no such rating has been issued, a "shadow" rating, of
BBB- or better from S&P, and a rating or "shadow" rating of Baa3 or better from
Moody's or a rating or "shadow" rating equivalent to the foregoing from either
Duff & Phelps or Fitch. Any such "shadow" rating shall be evidenced by a letter
from the applicable Rating Agency or by such other evidence as may be reasonably
acceptable to the Administrative Agent (as to any such other evidence, the
Administrative Agent shall present the same to, and discuss the same with, the
Banks).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
----
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, each of
the Borrower and any Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means a Base Rate Loan or a Euro-Dollar Loan, and "Loans" means
---- -----
Base Rate Loans, Euro-Dollar Loans or any combination of the foregoing,
13
<PAGE>
provided that, if any such Loan or Loans (or portions thereof) are combined or
--------
subdivided pursuant to a Notice of Interest Rate Election, the term "Loan" shall
refer to the combined principal amount resulting from such combination or to
each of the separate principal amounts resulting from such subdivision, as the
case may be.
"Loan Amount" has the meaning set forth in Section 2.1(a).
-----------
"Loan Documents" means this Agreement, the Notes, the Guaranty, and
--------------
any related documents.
"London Interbank Offered Rate" has the meaning set forth in Section
-----------------------------
2.7(b).
"Margin Stock" shall have the meaning provided such term in Regulation
------------
U and Regulation G of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect upon (i) the
-----------------------
business, operations, properties or assets of the Borrower or (ii) the ability
of the Borrower to perform its obligations hereunder in all material respects,
including to pay interest and principal.
"Material Lease" means, with respect to any Real Property Asset, any
--------------
lease, underletting, concession agreement or license affecting such Real
Property Asset, which represents more than 15% of the gross leasable area of
such Real Property Asset.
"Material of Environmental Concern" means and includes pollutants,
---------------------------------
contaminants, hazardous wastes, and toxic, radioactive, caustic or otherwise
hazardous substances, including petroleum, its derivatives, by-products and
other hydrocarbons, or any substance having any constituent elements displaying
any of the foregoing characteristics.
"Material Plan" means at any time a Plan having aggregate Unfunded
-------------
Liabilities in excess of $5,000,000.
"Maturity Date" has the meaning set forth in Section 2.9.
-------------
14
<PAGE>
"Minority Holdings" means partnerships, limited liability companies
-----------------
and corporations held or owned by the Borrower which are not consolidated with
the Borrower on its financial statements.
"Moody's" means Moody's Investors Service, Inc. or any successor
-------
thereto.
"Morgan" means Morgan Guaranty Trust Company of New York, in its
------
individual capacity.
"Multiemployer Plan" means at any time an employee pension benefit
------------------
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Net Offering Proceeds" means all cash received by the Borrower or the
---------------------
General Partner as a result of the sale of common shares of beneficial interest,
preferred shares of beneficial interest (including perpetual preferred),
partnership interests, limited liability company interests, or other ownership
or equity interests in the Borrower or the General Partner (or evidence of
indebtedness of the Borrower or the General Partner convertible into any of the
foregoing) less customary costs and discounts of issuance paid by the Borrower
----
or the General Partner, as the case may be.
"Net Operating Cash Flow" means, with respect to any Real Property
-----------------------
Asset, the Property Income, calculated on an annualized basis, for the period
during which such Real Property Asset shall have been owned by the Borrower, the
General Partner or any of their Subsidiaries, less Property Expenses, calculated
on an estimated, pro forma (i.e., the results for the period during which such
Real Property Asset shall have been owned shall be annualized, with appropriate
adjustments for items of income and expense which are not earned or incurred in
equal monthly amounts) basis.
"New Acquisitions" shall mean any Real Property Asset acquired after
----------------
the date hereof.
15
<PAGE>
"Non-Recourse Debt" means Debt of the Borrower or the General Partner
-----------------
on a consolidated basis for which the right of recovery of the obligee thereof
is limited to recourse against the Real Property Assets securing such Debt
(subject to such limited exceptions to the non-recourse nature of such Debt such
as fraud, misappropriation, misapplication and environmental indemnities, as are
usual and customary in like transactions at the time of the incurrence of such
Debt).
"Notes" means, collectively, the promissory notes of the Borrower,
-----
each substantially in the form of Exhibit A hereto, evidencing the obligation of
---------
the Borrower to repay the Loans, and "Note" means any one of such promissory
----
notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section 2.2.
-------------------
"Notice of Interest Rate Election" has the meaning set forth in
--------------------------------
Section 2.15(a).
"Obligations" means all obligations, liabilities and indebtedness of
-----------
every nature of the Borrower from time to time owing to any Bank under or in
connection with this Agreement or any other Loan Document, including, without
limitation, the outstanding principal amount of the Loans at such time.
"Outstanding Balance" means the aggregate outstanding and unpaid
-------------------
principal balance of all Loans.
"Parent" means, with respect to any Bank, any Person controlling such
------
Bank.
"Participant" has the meaning set forth in Section 9.6(b).
-----------
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
----
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means (a) Liens in favor of the Borrower or the
---------------
General Partner on all or any part of the assets of Subsidiaries of the Borrower
or the General Partner, as applicable, provided that (i) the Debt to which such
Lien relates is held by the Borrower, (ii) such Debt is not otherwise pledged or
encumbered, and (iii) no more than 5% of the Unencumbered Asset Pool Properties
Value may be subject to any such Liens; (b) Liens to secure the performance of
statutory obligations, surety or
16
<PAGE>
appeal bonds, performance bonds, completion bonds, government contracts or other
obligations of a like nature, including Liens in connection with workers'
compensation, unemployment insurance and other types of statutory obligations or
to secure the performance of tenders, bids, leases, contracts (other than for
the repayment of Debt) and other similar obligations incurred in the ordinary
course of business; (c) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded; provided,
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (d) Liens on property of the
Borrower, the General Partner or any Subsidiary thereof in favor of the Federal
or any state government to secure certain payments pursuant to any contract,
statute or regulation; (e) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights of way, covenants, consents,
reservations, encroachments, variations and zoning and other restrictions,
charges or encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower, the
General Partner or any Subsidiary thereof and which do not materially detract
from the value of the property to which they attach or materially impair the use
thereof by the Borrower, the General Partner or any Subsidiary thereof; (f)
statutory Liens of carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen or other Liens imposed by law and arising in the ordinary course of
business, for sums due and payable which are not then past due (or which, if
past due, are being contested in good faith and with respect to which adequate
reserves are being maintained to the extent required by GAAP); (g) Liens not
otherwise permitted by this definition and incurred in the ordinary course of
business of any or all of the Borrower, the General Partner or any Subsidiary
thereof with respect to obligations which do not exceed $500,000 in principal
amount in the aggregate at any one time outstanding; and (h) the interests of
lessees and lessors under leases of real or personal property made in the
ordinary course of business which would not have a Material Adverse Effect.
"Person" means an individual, a corporation, a partnership, a limited
------
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan (other than
----
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the
17
<PAGE>
preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by Morgan
----------
in New York City from time to time as its Prime Rate.
"Pro-Forma Debt Service" means, for any calendar quarter, the greater
----------------------
of (x) the interest actually payable on the Loans and all other Unsecured Debt,
and (y) the amount of debt service payments determined by applying a 30-year
mortgage style amortization schedule to the Loans and such other Unsecured Debt
outstanding as of the last day of such calendar quarter, using an interest rate
equal to the Treasury Rate plus 1.75%.
"Property Expenses" means, when used with respect to any Real Property
-----------------
Asset, the costs of operating and maintaining such Real Property Asset which are
the responsibility of the owner thereof and that are not paid directly by the
tenant thereof, including, without limitation, taxes, insurance, repairs and
maintenance, but provided that if such tenant is more than 60 days in arrears in
the payment of base or fixed rent, then such costs will also constitute
"Property Expenses", but excluding depreciation, amortization and interest
costs.
"Property Income" means, when used with respect to any Real Property
---------------
Asset, cash rents and other cash revenues received in the ordinary course
therefrom, including, without limitation, revenues from any parking leases and
lease termination fees amortized over the remaining term of the lease for which
such termination fee was received (other than pre-paid rents and revenues and
security deposits except to the extent applied in satisfaction of tenants'
obligations for rent).
"Qualified Development Properties" means any Real Property Assets
--------------------------------
which are 100% owned in fee (or leasehold pursuant to a Financeable Ground
Lease) by the Borrower, the General Partner or any of their Consolidated
Subsidiaries and which are not subject to any Lien (other than Permitted Liens),
and which are under construction and which, in accordance with GAAP, have not
yet been placed into service, provided, however, that if 66.67% or more of the
net rentable area of any Qualified Development Property has not been leased to
tenants other than tenants that are affiliates of the Borrower on or before the
earlier to occur of (x) the date which is six (6) months after the Completion of
Construction thereof, and (y) the eighteen
18
<PAGE>
month anniversary of the commencement of construction thereof, then the same
will cease to be a Qualified Development Property.
"Qualified Leased Development Properties" means any Real Property
---------------------------------------
Assets which are 100% owned in fee (or leasehold pursuant to a Financeable
Ground Lease) by the Borrower, the General Partner or any of their Consolidated
Subsidiaries and which are not subject to any Lien (other than Permitted Liens),
and which are under construction and, in accordance with GAAP, have not yet been
placed into service, and of which, as of any date of determination, 66.67% or
more of the net rentable area of such Real Property Asset has been leased to
tenants other than tenants that are affiliates of the Borrower.
"Rating Agencies" means, collectively, S&P, Moody's, Duff & Phelps and
---------------
Fitch.
"Real Property Assets" means as of any time, the real property assets
--------------------
owned directly or indirectly by the Borrower at such time.
"Recourse Debt" shall mean Debt of the Borrower, the General Partner
-------------
or any Consolidated Subsidiary that is not Non-Recourse Debt.
"Reference Bank" means the principal London offices of Morgan.
--------------
"Regulation U" means Regulation U of the Board of Governors of the
------------
Federal Reserve System, as in effect from time to time.
"Release" means any release, spill, emission, leaking, pumping,
-------
pouring, dumping, emptying, deposit, discharge, leaching or migration.
"Required Banks" means, at any time, Banks having at least two-thirds
--------------
of the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing at least two-thirds of the aggregate
unpaid principal amount of the Loans.
"Requirements" means all present and future laws, statutes, codes,
------------
ordinances, orders, judgments, decrees, injunctions, rules, regulations and
requirements of every Governmental Authority having jurisdiction over any
Unencumbered Asset Pool Property and all restrictive covenants applicable to any
Unencumbered Asset Pool Property.
19
<PAGE>
"Secured Debt" means all Debt secured by a Lien on real property.
------------
"Separate Parcel" means a Real Estate Asset that is a single, legally
---------------
subdivided, separately zoned parcel that can be legally transferred or conveyed
separate and distinct from any other Real Estate Asset without benefit of any
other Real Estate Asset.
"Solvent" means, with respect to any Person, that the fair saleable
-------
value of such Person's assets exceeds the Debts of such Person.
"Subsidiary" means any corporation or other entity of which securities
----------
or other ownership interests representing either (i) ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions or (ii) a majority of the economic interest therein, are at the time
directly or indirectly owned by the Borrower.
"Term" has the meaning set forth in Section 2.9.
----
"Total Asset Value" means, the sum of (w) with respect to those Real
-----------------
Property Assets owned for at least the two previous consecutive quarters, the
quotient of (i) Annual EBITDA with respect thereto for the previous four (4)
consecutive quarters (or, if owned for only two or three quarters, the Annual
EBITDA for such period, annualized), including the quarter then ended, but less
reserves for Capital Expenditures of (A) $0.30 per square foot per annum for
each Real Property Asset that is an office property, and (B) $0.15 per square
foot per annum for each Real Property Asset that is an industrial property,
divided by (ii) the FMV Cap Rate, (x) with respect to those Real Property Assets
owned for less than the two previous consecutive quarters, the lesser of (i) the
quotient of Net Operating Cash Flow applicable to each such Real Property Asset,
calculated on an annualized basis, based upon (A) the actual amount of Net
Operating Cash Flow for the period of the Borrower's, the General Partner's or
their Subsidiary's ownership of such Real Property Asset, less replacement
reserves of (1) $0.30 per square foot per annum for each such Unencumbered Asset
Pool Property which is an office building and (2) $0.15 per square foot per
annum for each such Unencumbered Asset Pool Property which is an industrial
building, divided by (B) the FMV Cap Rate, and (ii) the purchase price actually
paid by the Borrower, the General Partner or any of their Subsidiaries (as
applicable) for such Real Property, (y) with respect to Qualified Development
Properties, 40% of the book value thereof, and (z) Cash or Cash Equivalents of
the Borrower, the General Partner and their Subsidiaries as of the date of
determination.
20
<PAGE>
"Total Debt Ratio" means the ratio, as of the date of determination,
----------------
of (i) the sum of (x) the Total Liabilities of the Borrower, the General Partner
and their Consolidated Subsidiaries and (y) the Borrower's and the General
Partner's pro rata share of the Total Liabilities of any Minority Holdings of
the Borrower or the General Partner to (ii) Total Asset Value.
"Total Debt Service" means, as of the last day of each calendar
------------------
quarter, an amount equal to the sum of (i) interest (whether accrued, paid or
capitalized) payable by Borrower on its Debt for the previous four consecutive
quarters including the quarter then ended, plus (ii) scheduled payments of
principal on such Debt, whether or not paid by the Borrower (excluding balloon
payments) for the previous four consecutive quarters including the quarter then
ended.
"Total Liabilities" means the sum of the balance sheet amount of all
-----------------
Debt of the Borrower, the General Partner and their Consolidated Subsidiaries
and all accounts payable and all other liabilities of such Person, all as
determined in accordance with GAAP.
"Treasury Rate" means, as of any date, a rate equal to the annual
-------------
yield to maturity on the U.S. Treasury Constant Maturity Series with a ten-year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
-- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the
Administrative Agent shall select, in its reasonable discretion, an alternate
basis for the determination of Treasury yield for U.S. Treasury Constant
Maturity Series with ten-year maturities.
"Unencumbered Asset Pool Net Operating Cash Flow" means, as of any
-----------------------------------------------
date of determination with respect to the Unencumbered Asset Pool Properties,
Property Income with respect to the Unencumbered Asset Pool Properties for the
previous four (4) consecutive quarters (except as provided below), including the
quarter then ended, but less (x) Property Expenses with respect to the
Unencumbered Asset Pool Properties for the previous four (4) consecutive
quarters (except as provided below), including the quarter then ended, and (y)
the greater of (i) Capital Expenditures which are not related to new
construction for the previous four (4) consecutive quarters, including the
quarter then ended, and (ii) reserves for Capital Expenditures of $0.70 per
square foot per annum for each Unencumbered Asset Pool Property that is an
office property, and $0.40 per square foot per annum for each
21
<PAGE>
Unencumbered Asset Pool Property that is an industrial property. Notwithstanding
the foregoing, with respect to any Unencumbered Asset Pool Property owned by the
Borrower, the General Partner or any of their Consolidated Subsidiaries for a
period of less four (4) fiscal quarters, but more than one (1) fiscal quarter,
Unencumbered Asset Pool Net Operating Cash Flow shall be determined in a manner
consistent with the foregoing calculation utilizing annualized Property Income,
Property Expenses and Capital Expenditures (or, if greater, reserves for Capital
Expenditures) for the relevant period of the Borrower's, the General Partner's
or any of their Consolidated Subsidiaries' ownership of such Unencumbered Asset
Pool Property, provided such period shall be at least one fiscal quarter.
"Unencumbered Asset Pool Properties" means, as of any date, the Real
----------------------------------
Property Assets listed in Exhibit B attached hereto and made a part hereof, each
---------
of which is 100% owned in fee (or leasehold pursuant to a Financeable Ground
Lease in the case of assets listed on Exhibit C as leaseholds) by the Borrower,
---------
the General Partner or any of their Consolidated Subsidiaries and each of which
is not subject to any Lien (other than Permitted Liens), subject to adjustment
as set forth herein, together with all Real Property Assets which have become
part of the Unencumbered Asset Pool Properties as of such date in accordance
with Section 3.2.
"Unencumbered Asset Pool Properties Value" means the sum of:
----------------------------------------
(i) with respect to the Unencumbered Asset Pool Properties owned by
the Borrower, the General Partner or any of their Consolidated Subsidiaries for
a period of at least six (6) calendar months, the quotient of (x) the
Unencumbered Asset Pool Net Operating Cash Flow less replacement reserves of
$0.30 per square foot per annum for each such Unencumbered Asset Pool Property
which is an office building and $0.15 per square foot per annum for each such
Unencumbered Asset Pool Property which is an industrial building, divided by (y)
the FMV Cap Rate, and
(ii) with respect to Unencumbered Asset Pool Properties owned by the
Borrower, the General Partner or any of their Consolidated Subsidiaries for a
period of less than six (6) calendar months, the lesser of (A) the quotient of
(x) the Unencumbered Asset Pool Net Operating Cash Flow on an annualized basis
based upon the Unencumbered Asset Pool Net Operating Cash Flow for the period of
such Person's ownership of the Unencumbered Asset Pool Property in question less
replacement reserves of $0.30 per square foot per annum for each such
Unencumbered Asset Pool Property which is an office building and $0.15 per
square foot per annum for each such Unencumbered Asset Pool Property which is an
industrial
22
<PAGE>
building, divided by (y) the FMV Cap Rate and (B) the purchase price actually
paid by the Borrower, the General Partner or any of their Consolidated
Subsidiaries (as applicable) for such Unencumbered Asset Pool Property
(provided, however, that if any such Unencumbered Asset Pool Property shall have
been purchased as part of a portfolio of properties and no purchase price shall
have been specifically allocated thereto, then the purchase price therefore
shall be deemed to be equal to that percentage of the total purchase price for
such portfolio as is equal to the percentage of the total Net Operating Cash
Flow with respect to such portfolio that the Net Operating Cash Flow
attributable to the applicable Unencumbered Asset Pool Property bears, and
(iii) with respect to Qualified Leased Development Properties, forty
percent (40%) of the book value thereof, provided that availability under the
Commitments attributable to such Qualified Leased Development Properties shall
not in any event exceed 10% of Unencumbered Asset Pool Properties Value.
"Unfunded Liabilities" means, with respect to any Plan at any time,
--------------------
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
-------------
States and the District of Columbia, but excluding its territories and
possessions.
"Unsecured Debt" means Debt not secured by a Lien on real property.
--------------
"Unsecured Debt Ratio" means, as of any date of determination, the
--------------------
ratio of the Unencumbered Asset Pool Properties Value as of the date of
determination to the aggregate amount of Unsecured Debt of the Borrower, the
General Partner and their Consolidated Subsidiaries outstanding as of such date
of determination.
"Unused Commitments" means an amount equal to all unadvanced funds
------------------
(other than unadvanced funds in connection with any construction loan) which
23
<PAGE>
any third party is obligated to advance to the Borrower or otherwise, pursuant
to any Loan Document, written instrument or otherwise.
Section I.2 Accounting Terms and Determinations. Unless otherwise
-----------------------------------
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP,
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower delivered to the Administrative Agent and
the Banks; provided that, if the Borrower notifies the Administrative Agent and
--------
the Banks that the Borrower wishes to amend any covenant in Article V to
eliminate the effect of any change in GAAP on the operation of such covenant (or
if the Administrative Agent notifies the Borrower that the Required Banks wish
to amend Article V for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Banks.
Section I.3 Types of Borrowings. The term "Borrowing" denotes the
------------------- ---------
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article II on the same date, all of which Loans are of the same type (subject to
Article VIII) and, except in the case of Base Rate Loans, have the same Interest
Period. Borrowings are classified for purposes of this Agreement either by
reference to the pricing of Loans comprising such Borrowing (e.g., a "Euro-
---- ----
Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by reference
----------------
to the provisions of Article II under which participation therein is determined
(i.e., a "Committed Borrowing" is a Borrowing under Section 2.1 in which all
---- -------------------
Banks participate in proportion to their Commitments).
ARTICLE II
THE LOANS
Section II.1 Commitments and Loans. Each Bank severally agrees, on
---------------------
the terms and conditions set forth in this Agreement, to make Loans to the
Borrower. The aggregate amount of Loans to be made hereunder is One Hundred
Million Dollars ($100,000,000) (the "Loan Amount"). The Loans shall be made by
-----------
the Banks
24
<PAGE>
and disbursed to the Borrower on the Closing Date, subject to the provisions of
this Agreement. The Loans will be evidenced by the Notes (as provided in Section
2.5).
Section II.2 Notice of Borrowing. (a) The Borrower shall give the
-------------------
Administrative Agent notice (a "Notice of Borrowing") not later than 2:00 p.m.
-------------------
(New York City time) (x) one Domestic Business Day before the Closing Date with
respect to a Base Rate Borrowing or (y) the third Euro-Dollar Business Day
before the Closing Date with respect to a Euro-Dollar Borrowing, specifying:
(1) the date of such Borrowing, which shall be the Closing Date,
(2) whether the Loans comprising such Borrowing are to bear
interest initially at the Base Rate and/or one or more Euro-Dollar Rates,
and
(3) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
Section II.3 Intentionally Deleted.
---------------------
Section II.4 Notice to Banks; Funding of Loans.
---------------------------------
(a) Upon receipt of the Notice of Borrowing, the Administrative Agent
shall notify each Bank on the same day as it receives the Notice of Borrowing of
the contents thereof and of such Bank's share of such Borrowing and such Notice
of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 2:00 P.M. (New York City time) on the date of the
Committed Borrowing, each Bank shall make available its share of such Committed
Borrowing, in Federal or other funds immediately available in New York City, to
the Administrative Agent at its address referred to in Section 9.1. Unless the
Administrative Agent determines that any applicable condition specified in
Article III has not been satisfied, the Administrative Agent will make the
entire Loan Amount available to the Borrower at the Administrative Agent's
aforesaid address on or before 3:00 P.M. (New York City time) on the Closing
Date.
Section II.5 Notes.
-----
25
<PAGE>
(a) The Loans of each Bank shall be evidenced by the Notes, each of
which shall be payable to the order of such Bank for the account of its
Applicable Lending Office in an amount equal to each such Bank's Commitment.
(b) Each Bank may, by notice to the Borrower and the Administrative
Agent, request that its Loans of a particular type be evidenced by a separate
Note in an amount equal to the aggregate unpaid principal amount of such Loans.
Each such Note shall be in substantially the form of Exhibit A hereto, with
---------
appropriate modifications to reflect the fact that it evidences solely Loans of
the relevant type. Each reference in this Agreement to the "Note" of such Bank
----
shall be deemed to refer to and include any or all of such Notes, as the context
may require.
(c) Upon receipt of each Bank's Note, the Administrative Agent shall
forward such Note to such Bank. Each Bank shall record the date, amount, type
and maturity of each Loan made by it and the date and amount of each payment of
principal made by the Borrower with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note, endorse on
the schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding; provided
--------
that the failure of any Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Notes. Each
Bank is hereby irrevocably authorized by the Borrower so to endorse its Note and
to attach to and make a part of its Note a continuation of any such schedule as
and when required.
(d) There shall be no more than ten (10) Euro-Dollar Borrowings
outstanding at any one time pursuant to this Agreement.
Section II.6 Maturity of Loans. The Loans shall mature, and the
-----------------
principal amount thereof shall be due and payable, on the Maturity Date.
Section II.7 Interest Rates.
--------------
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the sum of twenty-five (25) basis
points plus the Base Rate for such day. Such interest shall be payable for each
Interest Period on the last day thereof.
26
<PAGE>
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
Adjusted London Interbank Offered Rate for such day.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
"Adjusted London Interbank Offered Rate" applicable to any Interest
--------------------------------------
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
"Euro-Dollar Reserve Percentage" means for any day that percentage
------------------------------
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
"London Interbank Offered Rate" applicable to any Interest Period
-----------------------------
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
the Reference Bank in the London interbank market at approximately 11:00 a.m.
(London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of such Reference Bank to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
(c) In the event that, and for so long as, any Event of Default shall
have occurred and be continuing, the outstanding principal amount of the Loans,
and, to the extent permitted by law, overdue interest in respect of all Loans,
shall bear interest at the annual rate of the sum of the Base Rate and four
percent (4%).
27
<PAGE>
(d) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the Banks of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of manifest error.
(e) The Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If the
Reference Bank does not furnish a timely quotation, the provisions of Section
8.1 shall apply.
Section II.8 Fees.
----
(a) Facility Fee. From and after the Adjustment Date, the Borrower
------------
shall pay to the Administrative Agent for the account of the Banks ratably in
proportion to their respective Commitments, a facility fee on the Loan Amount in
any given quarter at the respective percentages per annum based upon the
Borrower's Credit Rating in accordance with the following table:
Borrower's Credit Rating Applicable Facility Fee (% per annum)
-----------------------------------------------------------------------------
BBB+/Baa1 0.20%
-----------------------------------------------------------------------------
BBB/Baa2 0.20%
-----------------------------------------------------------------------------
BBB-/Baa3 0.25%
-----------------------------------------------------------------------------
Below Investment Grade Rating or no 0.325%
rating
-----------------------------------------------------------------------------
The facility fee shall be payable quarterly, in arrears, on each January 1,
April 1, July 1, and October 1 during the Term and any extensions thereof. Any
change in the Borrower's Credit Rating causing it to move into a different range
on the table shall effect an immediate change in the applicable percentage per
annum. In the event that the Borrower's (or the General Partner's) Credit
Rating is such that the Rating Agencies' ratings are split between a higher and
a lower rating, the applicable percentage per annum shall be based upon the
lower of such two (2) Credit Ratings. In the event that the Borrower (or, as
applicable, the General Partner) receives more than two (2) credit ratings and
such credit ratings are not equivalent, the applicable
28
<PAGE>
fee shall be determined by the lower of the two (2) highest ratings, provided
that each of said two (2) highest ratings shall be Investment Grade Ratings and
at least one of which shall be an Investment Grade Rating from S&P or Moody's.
(b) Up-Front Fee. On the Closing Date, the Borrower shall pay to the
------------
Administrative Agent for the account of the Banks ratably in proportion to their
respective Commitments, a fee equal to forty basis points (0.40%) of the Loan
Amount.
(c) Administrative Agent's Fee. On the Closing Date, the Borrower
--------------------------
shall pay a fee to the Administrative Agent in accordance with that certain
letter agreement, dated July 27, 2000, by and between Administrative Agent and
the Borrower.
(d) Fees Non-Refundable. All fees set forth in this Section 2.8 shall
-------------------
be deemed to have been earned on the date payment is due in accordance with the
provisions hereof and shall be non-refundable. The obligation of the Borrower
to pay such fees in accordance with the provisions hereof shall be binding upon
the Borrower and shall inure to the benefit of the Administrative Agent and the
Banks regardless of whether any Loans are actually made.
Section II.9 Mandatory Termination. The term (the "Term") of the
--------------------- ----
Loans and of the Commitments shall terminate and expire on September 7, 2002 (as
the same may be extended in accordance with the provisions of this Section 2.9,
the "Maturity Date"); provided, however, the Borrower shall have two (2) options
------------- -------- -------
(each, an "Extension Option") for a period of one (1) year each to extend the
----------------
Term of the Loans and of the Commitments. Each Extension Option is exercisable
upon delivery by the Borrower of written notice thereof to the Administrative
Agent (each, an "Extension Notice") on or before the date which is thirty (30)
----------------
days prior to then applicable Maturity Date (which Extension Notice the
Administrative Agent shall promptly deliver to the Banks) to extend the Term of
the Loans, the Commitments and the Maturity Date for an additional one year
period (each, an "Extension Period"), such that the Term shall expire on
----------------
September 7, 2003 or September 7, 2004, as the case may be. The Borrower's
right to exercise either Extension Option shall be subject to the following
terms and conditions: (i) no Event of Default shall have occurred and be
continuing both on the date the Borrower delivers the applicable Extension
Notice to the Administrative Agent and on the date the applicable Extension
Period shall commence (each, an "Extension Date"), (ii) the Borrower shall pay a
--------------
fee equal to twenty-five basis points (0.25%) of the Loan Amount upon the
exercise
29
<PAGE>
of the first Extension Option and a fee equal to twenty-five basis points
(0.25%) of the Loan Amount upon the exercise of the second Extension Option, as
applicable, and (iii) in the sole judgment of the Administrative Agent, no
Material Adverse Effect shall have occurred. If any Loans are outstanding on the
Maturity Date, the same shall be due and payable (together with accrued interest
thereon) on the Maturity Date, and the Borrower shall repay the same in full.
Section II.10 Mandatory Prepayment.
--------------------
(a) In the event that an Unencumbered Asset Pool Property (or any
Separate Parcel that originally formed a part of an Unencumbered Asset Pool
Property) is sold, transferred or released from the restrictions of Section 5.11
hereof, the Borrower shall, simultaneously with such sale, transfer or release,
prepay the Loans in an amount equal to 100% of the net proceeds of such sale or
transfer, in the event of a sale or transfer, or such lesser amount as shall be
required for the Borrower to remain in compliance with this Agreement, in the
event of such a sale, transfer or release. Notwithstanding the foregoing, a
simultaneous like-kind exchange under Section 1031 of the Internal Revenue Code
will not be subject to the provisions of this Section 2.10(a), provided that the
exchanged property has qualified as a New Acquisition and any cash "boot"
associated therewith shall be applied to prepayment of the Loans or such lesser
amount of such cash "boot" as shall be required for the Borrower to remain in
compliance with this Agreement. Sale of an Unencumbered Asset Pool Property (or
any Separate Parcel that originally formed a part of a Unencumbered Asset Pool
Property) in violation of this Section 2.10 shall constitute an Event of
Default.
(b) Simultaneously with the closing of any sale of common shares of
beneficial interest, preferred shares of beneficial interest, partnership
interests, limited liability company interests, or other ownership or equity
interests in the Borrower or the General Partner, the Borrower shall,
simultaneously with such sale, prepay the Loans in an amount equal to 100% of
the Net Offering Proceeds. Notwithstanding the foregoing, however, in the event
that (i) the Net Offering Proceeds in connection with any individual offering
shall be less than $20,000,000, and the Borrower anticipates reinvesting the
same in Real Property Assets within fifteen (15) days after receipt thereof or
(ii) any Loans expire within thirty (30) days of the date thereof, the Borrower
may retain such funds, provided, however, that if the Borrower shall not in fact
so reinvest such funds in Real Property Assets within such fifteen (15) day
period or repay such Loans within such thirty (30) day period, as the case may
be, the Borrower shall immediately apply the same in repayment of the Loans.
30
<PAGE>
(c) In the event that the Unsecured Debt Ratio is not maintained as of
the last day of a calendar quarter, either (i) the Borrower will add a Real
Property Asset to the Unencumbered Asset Pool Properties in accordance with this
Agreement which, on a pro forma basis (i.e. the Unsecured Debt Ratio shall be
--------- ---
recalculated to include such Real Property Asset as though the same had been an
Unencumbered Asset Pool Property for the entire applicable period) would result
in compliance with the Unsecured Debt Ratio, or (ii) the Borrower shall prepay
to the Administrative Agent, for the account of the Banks, an amount necessary
to cause the Unsecured Debt Ratio to be in compliance within ninety (90) days of
the date on which the Unsecured Debt Ratio failed to be maintained. Failure by
the Borrower to comply with the Unsecured Debt Ratio within ninety (90) days of
the date of such non-compliance shall be an Event of Default.
(d) Any amounts so prepaid pursuant to this Section 2.10 may not be
reborrowed.
Section II.11 Optional Prepayments.
--------------------
(a) The Borrower may, upon at least one Domestic Business Day's notice
to the Administrative Agent, prepay to the Administrative Agent, for the account
of the Banks, any Base Rate Borrowing in whole at any time, or from time to time
in part in amounts aggregating One Million Dollars ($1,000,000), or an integral
multiple of One Million Dollars ($1,000,000) in excess thereof or, if less, the
outstanding principal balance, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Loans of the several
Banks included in such Borrowing.
(b) Except as provided in Section 8.2, the Borrower may not prepay all
or any portion of the principal amount of any Euro-Dollar Loan prior to the
maturity thereof unless the Borrower shall also pay any applicable expenses
pursuant to Section 2.13. Any such prepayment shall be upon at least three (3)
Euro-Dollar Business Days' notice to the Administrative Agent. Any notice of
prepayment delivered pursuant to this Section 2.11(b) shall set forth the amount
of such prepayment which is applicable to any Loan made for working capital
purposes. Each such optional prepayment shall be in the amounts set forth in
Section 2.11(a) above and shall be applied to prepay ratably the Loans of the
Banks included.
31
<PAGE>
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Administrative Agent shall promptly, and in any event within one (1)
Domestic Business Day, notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
(d) Any amounts so prepaid pursuant to this Section 2.11 may not be
reborrowed.
Section II.12 General Provisions as to Payments.
---------------------------------
(a) The Borrower shall make each payment of principal of, and interest
on, the Loans and of fees hereunder, not later than 3:00 p.m. (New York City
time) on the date when due, in Federal or other funds immediately available in
New York City, to the Administrative Agent at its address referred to in Section
9.1. The Administrative Agent will distribute to each Bank its ratable share of
each such payment received by the Administrative Agent for the account of the
Banks on the same day as received by the Administrative Agent if received by the
Administrative Agent by 3:00 p.m. (New York City time), or, if received by the
Administrative Agent after 3:00 p.m. (New York City time), on the immediately
following Domestic Business Day. If the Administrative Agent shall fail to
distribute to a Bank its ratable share of a payment on the same day it is
received or the immediately following Domestic Business Day, as applicable in
accordance with the immediately preceding sentence, the Administrative Agent
shall pay to such Bank the interest accrued on such payment at the Federal Funds
Rate, commencing on the day the Administrative Agent should have made the
payment to such Bank and ending on the day prior to the date payment is actually
made. Whenever any payment of principal of, or interest on, the Base Rate Loans
or of fees shall be due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding Domestic Business
Day. Whenever any payment of principal of, or interest on, the Euro-Dollar
Loans shall be due on a day which is not a Euro-Dollar Business Day, the date
for payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case the date for payment thereof shall be the next preceding
Euro-Dollar Business Day. If the date for any payment of principal is extended
by operation of law or otherwise, interest thereon shall be payable for such
extended time.
(b) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Banks
32
<PAGE>
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent
that the Borrower shall not have so made such payment, each Bank shall repay to
the Administrative Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
Section II.13 Funding Losses. If the Borrower makes any payment of
--------------
principal with respect to any Euro-Dollar Loan (pursuant to Article II, VI or
VIII or otherwise, and specifically including any payments made pursuant to
Sections 2.10 or 2.11) on any day other than the last day of the Interest Period
applicable thereto, or if the Borrower fails to borrow any Euro-Dollar Loans,
after notice has been given to any Bank in accordance with Section 2.4(a), the
Borrower shall reimburse each Bank within fifteen (15) days after demand for any
resulting loss or expense incurred by it (or by an existing Participant in the
related Loan; provided that no Participant shall be entitled to receive more
than the Bank with respect to which such Participant is a Participant would be
entitled to receive under this Section 2.13), including (without limitation) any
loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
failure to borrow, provided that such Bank shall have delivered to the Borrower
--------
a certificate as to the amount of such loss or expense and the calculation
thereof, which certificate shall be conclusive in the absence of manifest error.
Section II.14 Computation of Interest and Fees. Interest based on
--------------------------------
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
Section II.15 Method of Electing Interest Rates.
---------------------------------
(a) The Loans shall bear interest initially at the type of rate
specified by the Borrower in the Notice of Borrowing. Thereafter, the Borrower
may from time to time elect to change or continue the type of interest rate
borne by each Group of Loans (subject in each case to the provisions of Article
VIII), as follows:
33
<PAGE>
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case effective
on the last day of the then current Interest Period applicable to such
Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
------------------
Rate Election") to the Administrative Agent at least three (3) Euro-Dollar
-------------
Business Days before the conversion or continuation selected in such notice is
to be effective (unless the relevant Loans are to be continued as Base Rate
Loans, in which case such notice shall be delivered to the Administrative Agent
no later than 2:00 p.m. (New York City time) at least one (1) Domestic Business
Day before such continuation is to be effective). A Notice of Interest Rate
Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (i) such portion
--------
is allocated ratably among the Loans comprising such Group, (ii) the portion to
which such notice applies, and the remaining portion to which it does not apply,
are each $1,000,000 or any larger multiple of $1,000,000, (iii) there shall be
no more than ten (10) Borrowings comprised of Euro-Dollar Loans outstanding at
any time under this Agreement, (iv) no Loan may be continued as, or converted
into, a Euro-Dollar Loan when any Event of Default has occurred and is
continuing, and (v) no Interest Period shall extend beyond the Maturity Date.
(b Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted,
the new type of Loans and, if such new Loans are Euro-Dollar Loans, the
duration of the initial Interest Period applicable thereto; and
34
<PAGE>
(iv) if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall notify
each Bank on the same day as it receives such Notice of Interest Rate Election
of the contents thereof and such notice shall not thereafter be revocable by the
Borrower. If the Borrower fails to deliver a timely Notice of Interest Rate
Election to the Administrative Agent for any Group of Euro-Dollar Loans, such
Loans shall be converted into Base Rate Loans on the last day of the then
current Interest Period applicable thereto.
ARTICLE III
CONDITIONS
Section III.1 Closing. The closing hereunder shall occur on the date
-------
(the "Closing Date") when each of the following conditions is satisfied (or
------------
waived by the Administrative Agent, such waiver to be evidenced by the
continuation or funding after the date hereof of Loans and notice of such waiver
to be given to the Banks by the Administrative Agent), each document to be dated
the Closing Date unless otherwise indicated:
(a the Borrower shall have executed and delivered to the
Administrative Agent a Note for the account of each Bank dated on or before the
Closing Date complying with the provisions of Section 2.5;
(b the Borrower shall have executed and delivered to the
Administrative Agent a duly executed original of this Agreement;
(c the General Partner shall have executed and delivered to the
Administrative Agent a duly executed original of the Guaranty;
(d the Administrative Agent shall have received an opinion of Latham
& Watkins, counsel for the Borrower, acceptable to the Administrative Agent, the
Banks and their counsel;
35
<PAGE>
(e the Administrative Agent shall have received all documents the
Administrative Agent may reasonably request relating to the existence of the
Borrower, the General Partner, the authority for and the validity of this
Agreement and the other Loan Documents, and any other matters relevant hereto,
all in form and substance reasonably satisfactory to the Administrative Agent.
Such documentation shall include, without limitation, the articles of
incorporation and by-laws or the partnership agreement and limited partnership
certificate, as applicable, of the Borrower and the General Partner, as amended,
modified or supplemented to the Closing Date, each certified to be true, correct
and complete by a senior officer of the Borrower or the General Partner, as the
case may be, as of the Closing Date, together with a good standing certificate
from the Secretary of State (or the equivalent thereof) of the State of Delaware
with respect to the Borrower and the State of Maryland with respect to the
General Partner, and a good standing certificate from the Secretary of State (or
the equivalent thereof) of each other State in which the Borrower and the
General Partner is required to be qualified to transact business, each to be
dated not more than forty-five (45) days prior to the Closing Date;
(f the Administrative Agent shall have received all certificates,
agreements and other documents and papers referred to in this Section 3.1 and
Section 3.2, unless otherwise specified, in sufficient counterparts,
satisfactory in form and substance to the Administrative Agent in its sole
discretion;
(g the Borrower and the General Partner shall have taken all actions
required to authorize the execution and delivery of this Agreement and the other
Loan Documents and the performance thereof by the Borrower and the General
Partner;
(h the Administrative Agent and the Banks shall have received an
unaudited consolidated balance sheet and income statement of the Borrower for
the fiscal quarter ended June 30, 2000;
(i the Administrative Agent shall be satisfied that neither the
Borrower nor the General Partner is subject to any present or contingent
environmental liability which could reasonably be expected to have a Material
Adverse Effect;
(j the Administrative Agent shall have received wire transfer
instructions in connection with the Loans;
36
<PAGE>
(k the Administrative Agent shall have received, for its and any
other Bank's account, all fees due and payable pursuant to Section 2.8 hereof on
or before the Closing Date, and the reasonable fees and expenses accrued through
the Closing Date of Skadden, Arps, Slate, Meagher & Flom LLP;
(l the Administrative Agent shall have received copies of all
consents, licenses and approvals, if any, required in connection with the
execution, delivery and performance by the Borrower, and the validity and
enforceability against the Borrower, of the Loan Documents, or in connection
with any of the transactions contemplated thereby to occur on or prior to the
Closing Date, and such consents, licenses and approvals shall be in full force
and effect;
(m the representations and warranties of the Borrower contained in
this Agreement shall be true and correct in all material respects on and as of
the Closing Date both before and after giving effect to the making of the Loans;
(n receipt by the Administrative Agent and the Banks of a
certificate of the chief financial officer or the chief accounting officer of
the Borrower certifying that the Borrower is in compliance with all covenants of
the Borrower contained in this Agreement, including, without limitation, the
requirements of Section 5.8, as of the Closing Date; and
(o the General Partner shall intend to continue to qualify as a real
estate investment trust under the Internal Revenue Code.
The Administrative Agent shall promptly notify the Borrower and the Banks of the
Closing Date, and such notice shall be conclusive and binding on all parties
hereto.
Section III.2 New Acquisitions and Additional Real Property Assets.
----------------------------------------------------
(a Any New Acquisition or Real Property Asset desired by the
Borrower to be included as a Unencumbered Asset Pool Property after the date
hereof and prior to the date on which Borrower has received an Investment Grade
Rating from either S&P or Moody's, will require the approval of the Required
Banks. The Borrower shall submit to the Lead Agent the materials set forth
below (the "Due Diligence Package") relating to each New Acquisition or Real
---------------------
Property Asset that the Borrower desires to be added to the Unencumbered Asset
Pool Properties. The Due Diligence Package shall include (i) a description of
the Real Property Asset, (ii) two years of historical cash flow operating
statements, if available, (iii) five years of cash
37
<PAGE>
flow projections (including capital expenditures), (iv) the credit history of
each existing tenant which occupies more than 15% of such Real Property Asset,
(v) a map and site plan, (vi) copies of all lease agreements and abstracts
thereof with each existing tenant which occupies more than 15% of such Real
Property Asset, (vii) a satisfactory environmental report indicating that (A)
the Real Property Asset complies with all Environmental Laws in all material
respects, (B) is free of all Material of Environmental Concern in all material
respects and (C) is not subject to any Environmental Claim, (viii) an engineer's
inspection report satisfactory to the Lead Agent (provided, however, the Lead
Agent shall not deem an engineer's inspection report satisfactory unless the
Required Banks shall find such engineer's inspection report satisfactory), (ix)
a title report and an existing survey of the property dated not more than twelve
(12) months prior to such submission, (x) tenant delinquency reports, if
available, (xi) a rent roll certified to be true, correct and complete by an
authorized officer of Borrower, (xii) a final investment memorandum prepared by
the Borrower in connection with the Real Property Asset, and (xiii) a statement
with respect to the purchase price of such Real Property Asset or, if such Real
Property Asset was purchased as part of a portfolio and there was no allocation
of purchase price, of the purchase price of the portfolio of Real Property
Assets of which it formed a part. The Borrower shall permit the Lead Agent at
all reasonable times and upon reasonable prior notice to make an inspection of
such New Acquisition or Real Property Asset.
(b The Borrower shall distribute a copy of the items listed in
clauses (i), (ii), (iii), (v) and (xii) of Section 3.2(a) by overnight mail to
each of the Banks for their review and approval (the "Bank Due Diligence
------------------
Package"). In the event that a Bank desires additional materials which are
included in the Due Diligence Package delivered to the Lead Agent, such Bank(s)
shall notify the Borrower within two (2) Business Days of receipt of the Bank
Due Diligence Package and the Borrower shall deliver such requested materials to
the requesting Bank within one (1) Business Day of request therefor. To the
extent approval is required pursuant to Section 3.2(a) hereof, failure to
respond to the Lead Agent in writing by any Bank within ten (10) Domestic
Business Days after receipt of the Bank Due Diligence Package shall be deemed to
be an approval by such Bank of such New Acquisition or Real Property Asset for
inclusion as an Unencumbered Asset Pool Property.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
38
<PAGE>
In order to induce the Administrative Agent and each of the other
Banks which may become a party to this Agreement to make the Loans, the Borrower
makes the following representations and warranties as of the date hereof. Such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the other Loan Documents and the making
of the Loans.
Section IV.1 Existence and Power. The Borrower is duly organized,
-------------------
validly existing and in good standing as a limited partnership under the laws of
the State of Delaware and has all powers and all material governmental licenses,
authorizations, consents and approvals required to own its property and assets
and carry on its business as now conducted or as it presently proposes to
conduct and has been duly qualified and is in good standing in every
jurisdiction in which the failure to be so qualified and/or in good standing is
likely to have a Material Adverse Effect.
Section IV.2 Power and Authority. The Borrower has the
-------------------
organizational power and authority to execute, deliver and carry out the terms
and provisions of each of the Loan Documents to which it is a party and has
taken all necessary action to authorize the execution and delivery on behalf of
the Borrower and the performance by the Borrower of such Loan Documents. The
Borrower has duly executed and delivered each Loan Document to which it is a
party, and each such Loan Document constitutes the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms, except as
enforceability may be limited by applicable insolvency, bankruptcy or other laws
affecting creditors rights generally, or general principles of equity, whether
such enforceability is considered in a proceeding in equity or at law.
Section IV.3 No Violation. Neither the execution, delivery or
------------
performance by or on behalf of the Borrower of the Loan Documents, nor
compliance by the Borrower with the terms and provisions thereof nor the
consummation of the transactions contemplated by the Loan Documents, (i) will
contravene any applicable provision of any law, statute, rule, regulation,
order, writ, injunction or decree of any court or governmental instrumentality
applicable to Borrower or (ii) will conflict with or result in any breach of,
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of the Borrower
pursuant to the terms of any material indenture, mortgage, deed of trust, or
other agreement or other instrument to which the Borrower (or of any partnership
of which the Borrower is a partner) is a party or by which it or any of its
property or assets is bound or to which it is subject or (iii) will cause a
default by the Borrower under any
39
<PAGE>
organizational document of any Subsidiary, or cause a default under the General
Partner's articles of incorporation or by-laws.
Section IV.4 Financial Information.
---------------------
(a The unaudited consolidated balance sheets of the Borrower and the
General Partner as of June 30, 2000, when delivered to the Administrative Agent
and to the Banks shall fairly present, in conformity with GAAP, the consolidated
financial position of the Borrower and the General Partner as of such date and
their consolidated results of operations for such fiscal year.
(b Since June 30, 2000, (i) there has been no material adverse
change in the business, financial position or results of operations of the
Borrower or the General Partner and (ii) except as previously disclosed to the
Administrative Agent and to the Banks, neither the Borrower nor the General
Partner has incurred any material indebtedness or guaranty.
Section IV.5 Litigation.
----------
(a There is no action, suit or proceeding pending against, or to the
knowledge of the Borrower, threatened against or affecting, (i) the Borrower,
the General Partner or any of their Subsidiaries, (ii) the Loan Documents or any
of the transactions contemplated by the Loan Documents or (iii) any of their
assets, in any case before any court or arbitrator or any governmental body,
agency or official which could reasonably be expected to have a Material Adverse
Effect or which in any manner draws into question the validity of this Agreement
or the other Loan Documents.
(b There are no final nonappealable judgments or decrees in an
aggregate amount of One Million Dollars ($1,000,000) or more entered by a court
or courts of competent jurisdiction against the Borrower or the General Partner
(other than any judgment as to which, and only to the extent, a reputable
insurance company has acknowledged coverage of such claim in writing).
Section IV.6 Compliance with ERISA.
---------------------
(a Except as previously disclosed to the Administrative Agent in
writing, each member of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue Code with respect to
40
<PAGE>
each Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect of
any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Internal Revenue Code or (iii) incurred any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.
(b Except for each "employee benefit plan" (as such term is defined
in Section 3(3) of ERISA) that is maintained, or contributed to, by one or more
members of the ERISA Group, no member of the ERISA Group is a "party in
interest" (as such term is defined in Section 3(14) of ERISA or a "disqualified
person" (as such term is defined in Section 4975(e)(2) of the Code) with respect
to any funded employee benefit plan and none of the assets of any such plans
have been invested in a manner that would cause the transactions contemplated by
the Loan Documents to constitute a nonexempt prohibited transaction (as such
term is defined in Section 4975 of the Code or Section 406 of ERISA).
Section IV.7 Environmental Compliance. To the best of Borrower's
------------------------
knowledge, except as set forth in the Phase I environmental report(s) delivered
to and accepted by the Administrative Agent with respect to each of the
Unencumbered Asset Pool Properties (as supplemented or amended, the
"Environmental Reports"), (y) there are in effect all Environmental Approvals
----------------------
which are required to be obtained under all Environmental Laws with respect to
the Property, except for such Environmental Approvals the absence of which would
not have a Material Adverse Effect, and (z) the Borrower is in compliance in all
material respects with the terms and conditions of all such Environmental
Approvals, and is also in compliance in all material respects with all other
Environmental Laws or any plan, order, decree, judgment, injunction, notice or
demand letter issued, entered or approved thereunder, except to the extent
failure to comply would not have a Material Adverse Effect.
Except as set forth in the Environmental Reports or otherwise
disclosed to the Administrative Agent as of the Closing Date, to Borrower's
actual knowledge:
41
<PAGE>
(i0 There are no Environmental Claims or investigations
pending or threatened by any Governmental Authority with respect to any
alleged failure by the Borrower to have any Environmental Approval required
in connection with the conduct of the business of the Borrower on any of
the Unencumbered Asset Pool Properties, or with respect to any generation,
treatment, storage, recycling, transportation, Release or disposal of any
Material of Environmental Concern generated by the Borrower or any lessee
on any of the Unencumbered Asset Pool Properties;
(ii0 No Material of Environmental Concern has been Released at
any Unencumbered Asset Pool Property to an extent that it may reasonably be
expected to have a Material Adverse Effect;
(iii0 No PCB (in amounts or concentrations which exceed those
set by applicable Environmental Laws) is present at any of the Unencumbered
Asset Pool Properties;
(iv0 No friable asbestos is present at any of the Unencumbered
Asset Pool Properties;
(v0 There are no underground storage tanks for Material of
Environmental Concern, active or abandoned, at any of the Unencumbered
Asset Pool Properties;
(vi0 No Environmental Claims have been filed with a
Governmental Authority with respect to any of the Unencumbered Asset Pool
Properties, and none of the Unencumbered Asset Pool Properties is listed or
proposed for listing on the National Priority List promulgated pursuant to
CERCLA, on CERCLIS or on any similar state list of sites requiring
investigation or clean-up;
(vii0 There are no Liens arising under or pursuant to any
Environmental Laws on any of the Unencumbered Asset Pool Properties, and no
government actions have been taken or are in process which could subject
any of the Unencumbered Asset Pool Properties to such Liens; and
(viii0 There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by, or which are in the
possession of, the Borrower in relation to any of the Unencumbered Asset
42
<PAGE>
Pool Properties which have not been made available to the Administrative
Agent.
Section IV.8 Taxes. The initial tax year of the Borrower for federal
-----
income tax purposes was 1996. The federal income tax returns of the Borrower
and its Consolidated Subsidiaries for the fiscal year ended December 31, 1998
have been filed. The Borrower and its Subsidiaries have filed all United States
Federal income tax returns and all other material tax returns which are required
to be filed by them and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Borrower or any Subsidiary except
those being contested in good faith. The charges, accruals and reserves on the
books of the Borrower and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate.
Section IV.9 Full Disclosure. All information heretofore furnished
---------------
by the Borrower to the Administrative Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is true
and accurate in all material respects on the date as of which such information
is stated or certified. The Borrower has disclosed to the Banks in writing any
and all facts known to the Borrower which materially and adversely affect or are
likely to materially and adversely affect (to the extent the Borrower can now
reasonably foresee), the business, operations or financial condition of the
Borrower considered as one enterprise or the ability of the Borrower to perform
its obligations under this Agreement or the other Loan Documents.
Section IV.10 Solvency. On the Closing Date and after giving effect
--------
to the transactions contemplated by the Loan Documents occurring on the Closing
Date, the Borrower is Solvent.
Section IV.11 Use of Proceeds; Margin Regulations. All proceeds of
-----------------------------------
the Loans will be used by the Borrower only in accordance with the provisions
hereof. No part of the proceeds of any Loan will be used by the Borrower to
purchase or carry any Margin Stock or to extend credit to others for the purpose
of purchasing or carrying any Margin Stock. Neither the making of any Loan nor
the use of the proceeds thereof will violate or be inconsistent with the
provisions of Regulations T, U or X of the Federal Reserve Board.
Section IV.12 Governmental Approvals. No order, consent, approval,
----------------------
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision
43
<PAGE>
thereof, is required to authorize, or is required in connection with the
execution, delivery and performance of any Loan Document or the consummation of
any of the transactions contemplated thereby other than those that have already
been duly made or obtained and remain in full force and effect.
Section IV.13 Investment Company Act; Public Utility Holding Company
------------------------------------------------------
Act. The Borrower is not (x) an "investment company" or a company "controlled"
--- ------------------ ----------
by an "investment company", within the meaning of the Investment Company Act of
------------------
1940, as amended, (y) a "holding company" or a "subsidiary company" of a
--------------- ------------------
"holding company" or an "affiliate" of either a "holding company" or a
---------------- --------- ---------------
"subsidiary company" within the meaning of the Public Utility Holding Company
-------------------
Act of 1935, as amended, or (z) subject to any other federal or state law or
regulation which purports to restrict or regulate its ability to borrow money.
Section IV.14 Closing Date Transactions. On the Closing Date and
-------------------------
immediately prior to or concurrently with the making of the Loans, the
transactions (other than the making of the Loans) intended to be consummated on
the Closing Date will have been consummated in accordance with all applicable
laws. On or prior to the Closing Date, all consents and approvals of, and
filings and registrations with, and all other actions by, any Person required in
order to make or consummate such transactions have been obtained, given, filed
or taken and are in full force and effect.
Section IV.15 Representations and Warranties in Loan Documents. All
------------------------------------------------
representations and warranties made by the Borrower in the Loan Documents are
true and correct in all material respects.
Section IV.16 Patents, Trademarks, etc. The Borrower has obtained
-------------------------
and holds in full force and effect all patents, trademarks, service marks, trade
names, copyrights and other such rights, free from burdensome restrictions,
which are necessary for the operation of its business as presently conducted,
the impairment of which is likely to have a Material Adverse Effect. To the
Borrower's knowledge, no material product, process, method, substance, part or
other material presently sold by or employed by the Borrower in connection with
such business infringes any patent, trademark, service mark, trade name,
copyright, license or other such right owned by any other Person. There is not
pending or, to the Borrower's knowledge, threatened any claim or litigation
against or affecting the Borrower contesting its right to sell or use any such
product, process, method, substance, part or other material.
44
<PAGE>
Section IV.17 No Default. No Default or Event of Default exists
----------
under or with respect to any Loan Document. The Borrower is not in default in
any material respect beyond any applicable grace period under or with respect to
any other material agreement, instrument or undertaking to which it is a party
or by which it or any of its property is bound in any respect, the existence of
which default is likely (to the extent that the Borrower can now reasonably
foresee) to result in a Material Adverse Effect.
Section IV.18 Licenses, etc. The Borrower has obtained and holds in
--------------
full force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way and
other consents and approvals which are necessary for the operation of its
businesses as presently conducted, the absence of which is likely (to the extent
that the Borrower can now reasonably foresee) to have a Material Adverse Effect.
Section IV.19 Compliance With Law. The Borrower is in compliance
-------------------
with all laws, rules, regulations, orders, judgments, writs and decrees,
including, without limitation, all building and zoning ordinances and codes, the
failure to comply with which is likely (to the extent that the Borrower can now
reasonably foresee) to have a Material Adverse Effect.
Section IV.20 No Burdensome Restrictions. The Borrower is not a
--------------------------
party to any agreement or instrument or subject to any other obligation or any
charter or corporate or partnership restriction, as the case may be, which,
individually or in the aggregate, is likely (to the extent that the Borrower can
now reasonably foresee) to have a Material Adverse Effect.
Section IV.21 Brokers' Fees. The Borrower has not dealt with any
-------------
broker or finder with respect to the transactions contemplated by the Loan
Documents (except with respect to the acquisition or disposition of Real
Property Assets) or otherwise in connection with this Agreement, and the
Borrower has not done any acts, had any negotiations or conversation, or made
any agreements or promises which will in any way create or give rise to any
obligation or liability for the payment by the Borrower of any brokerage fee,
charge, commission or other compensation to any party with respect to the
transactions contemplated by the Loan Documents (except with respect to the
acquisition or disposition of Real Property Assets), other than the fees payable
hereunder.
45
<PAGE>
Section IV.22 Labor Matters. Except as set forth on Schedule 4.22
------------- -------------
attached hereto and made a part hereof, there are no collective bargaining
agreements or Multiemployer Plans covering the employees of the Borrower and the
Borrower has not suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five (5) years.
Section IV.23 Organizational Documents. The documents delivered
------------------------
pursuant to Section 3.1(e) constitute, as of the Closing Date, all of the
organizational documents (together with all amendments and modifications
thereof) of the Borrower. The Borrower represents that it has delivered to the
Administrative Agent true, correct and complete copies of each of the documents
set forth in this Section 4.23.
Section IV.24 Principal Offices. The principal office, chief
-----------------
executive office and principal place of business of the Borrower is 2250 East
Imperial Highway, Suite 1200, El Segundo, California 90245.
Section IV.25 REIT Status. For the fiscal year ended December 31,
-----------
2000, the General Partner will qualify, and the General Partner intends to
continue to qualify as a real estate investment trust under the Internal Revenue
Code.
Section IV.26 Ownership of Property. The Borrower owns fee simple
---------------------
title to or a ground leasehold interest in each of the Unencumbered Asset Pool
Properties.
Section IV.27 Insurance. The Borrower currently maintains insurance
---------
at 100% replacement cost insurance coverage in respect of each of the Real
Property Assets, as well as comprehensive general liability insurance (including
"builders' risk") against claims for personal, and bodily injury and/or death,
to one or more persons, or property damage, as well as workers' compensation
insurance, in each case with respect to the Real Property Assets with insurers
having an A.M. Best policyholders' rating of not less than A-VIII in amounts
that prudent owner of assets such as the Real Property Assets would maintain.
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Obligations remain
unpaid:
46
<PAGE>
Section V.1 Information. The Borrower will deliver to the
-----------
Administrative Agent and to each of the Banks:
(a as soon as available and in any event within 105 days after the
end of each fiscal year of the Borrower, an audited consolidated balance sheet
of the Borrower as of the end of such fiscal year and the related consolidated
statements of cash flow and operations for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, audited
by Delloite & Touche or other independent public accountants of similar
standing;
(b as soon as available and in any event within sixty (60) days
after the end of each quarter of each fiscal year (other than the last quarter
in any fiscal year) of the Borrower, a statement of the Borrower, prepared in
accordance with GAAP, setting forth the operating income and operating expenses
of the Borrower, in sufficient detail so as to calculate Unencumbered Asset Pool
Net Operating Cash Flow of the Borrower for the immediately preceding quarter;
(c simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer or the chief accounting officer of the Borrower (i) setting
forth in reasonable detail the calculations required to establish whether the
Borrower was in compliance with the requirements of Section 5.8 on the date of
such financial statements;(ii) stating whether any Default exists on the date of
such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto; and (iii) certifying (x) that such financial statements fairly
present the financial condition and the results of operations of the Borrower as
of the dates and for the periods indicated, in accordance with GAAP, subject, in
the case of interim financial statements, to normal year-end adjustments, and
(y) that such officer has reviewed the terms of the Loan Documents and has made,
or caused to be made under his or her supervision, a review in reasonable detail
of the business and condition of the Borrower during the period beginning on the
date through which the last such review was made pursuant to this Section 5.1(c)
and ending on a date not more than ten (10) Domestic Business Days prior to the
date of such delivery and that on the basis of such review of the Loan Documents
and the business and condition of the Borrower, to the best knowledge of such
officer, no Default or Event of Default under any other provision of Section 6.1
occurred or, if any such Default or Event of Default has occurred, specifying
the nature and extent thereof and, if continuing, the action the Borrower
proposes to take in respect thereof;
47
<PAGE>
(d simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of a firm of independent
public accountants confirming the calculations set forth in the officer's
certificate delivered simultaneously therewith pursuant to clause (c) above;
(e (i) within five (5) days after the president, chief financial
officer, treasurer, controller or other executive officer of the Borrower
obtains knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the president of the Borrower
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto; (ii) promptly and in any event within ten
(10) days after the Borrower obtains knowledge thereof, notice of (x) any
litigation or governmental proceeding pending or threatened against the Borrower
which is likely to individually or in the aggregate, result in a Material
Adverse Effect, and (y) any other event, act or condition which is likely to
result in a Material Adverse Effect;
(f if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Borrower setting forth details as to such occurrence
48
<PAGE>
and action, if any, which the Borrower or applicable member of the ERISA Group
is required or proposes to take;
(g promptly and in any event within five (5) Domestic Business Days
after the Borrower obtains actual knowledge of any of the following events, a
certificate of the Borrower executed by an officer of the Borrower specifying
the nature of such condition and the Borrower's, and if the Borrower has actual
knowledge thereof, the Environmental Affiliate's proposed initial response
thereto: (i) the receipt by the Borrower, or, if the Borrower has actual
knowledge thereof, any of the Environmental Affiliates, of any communication
(written or oral), whether from a governmental authority, citizens group,
employee or otherwise, that alleges that the Borrower, or, if the Borrower has
actual knowledge thereof, any of the Environmental Affiliates, is not in
compliance with applicable Environmental Laws, and such noncompliance is likely
to have a Material Adverse Effect, (ii) the Borrower shall obtain actual
knowledge that there exists any Environmental Claim which is likely to have a
Material Adverse Effect pending or threatened against the Borrower or any
Environmental Affiliate or (iii) the Borrower obtains actual knowledge of any
release, emission, discharge or disposal of any Material of Environmental
Concern that is likely to form the basis of any Environmental Claim against the
Borrower or any Environmental Affiliate;
(h promptly and in any event within five (5) Domestic Business Days
after receipt of any material notices or correspondence from any company or
agent for any company providing insurance coverage to the Borrower relating to
any material loss or loss of the Borrower with respect to any of the
Unencumbered Asset Pool Properties, copies of such notices and correspondence;
and
(i promptly upon the mailing thereof to the shareholders or partners
of the Borrower, copies of all financial statements, reports and proxy statement
so mailed;
(j promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower shall have filed with the Securities and
Exchange Commission;
(k simultaneously with delivery of the information required by
Sections 5.1(a) and (b), a statement of Unencumbered Asset Pool Net Operating
Cash
49
<PAGE>
Flow with respect to each Unencumbered Asset Pool Property and a list of all
such Unencumbered Asset Pool Properties; and
(l from time to time such additional information regarding the
financial position or business of the Borrower as the Administrative Agent, at
the request of any Bank, may reasonably request.
Section V.2 Payment of Obligations. The Borrower will pay and
----------------------
discharge, at or before maturity, all its material obligations and liabilities
including, without limitation, any obligation pursuant to any agreement by which
it or any of its properties is bound and any tax liabilities, in any case, where
failure to do so will likely result in a Material Adverse Effect except (i) such
tax liabilities may be contested in good faith by appropriate proceedings, and
will maintain in accordance with GAAP, appropriate reserves for the accrual of
any of the same; or (ii) such obligation or liability as may be contested in
good faith by appropriate proceedings.
Section V.3 Maintenance of Property; Insurance.
----------------------------------
(a) The Borrower will keep each of the Unencumbered Asset Pool
Properties in good repair, working order and condition, subject to ordinary wear
and tear.
(b) The Borrower shall (a) maintain insurance as specified in Section
4.27 hereof with insurers meeting the qualifications described therein, which
insurance shall in any event not provide for materially less coverage than the
insurance in effect on the Closing Date, and (b) furnish to each Bank from time
to time, upon written request, copies of the policies under which such insurance
is issued, certificates of insurance and such other information relating to such
insurance as such Bank may reasonably request. The Borrower will deliver to the
Banks (i) upon request of any Bank through the Administrative Agent from time to
time, full information as to the insurance carried, (ii) within five (5) days of
receipt of notice from any insurer, a copy of any notice of cancellation or
material change in coverage from that existing on the date of this Agreement and
(iii) forthwith, notice of any cancellation or nonrenewal of coverage by the
Borrower.
Section V.4 Conduct of Business. The Borrower's primary business
-------------------
will continue to be acquiring, owning, operating, managing, developing (to the
extent permitted in this Agreement), and leasing office and industrial
properties.
50
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Section V.5 Compliance with Laws. The Borrower will comply in all
--------------------
material respects with all applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities (including, without limitation,
Environmental Laws, all zoning and building codes and ERISA and the rules and
regulations thereunder) except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings.
Section V.6 Inspection of Property, Books and Records. The Borrower
-----------------------------------------
will keep proper books of record and account in which full, true and correct
entries shall be made of all dealings and transactions in relation to its
business and activities; and will permit representatives of any Bank at such
Bank's expense to visit and inspect any of its properties to examine and make
abstracts from any of its books and records and to discuss its affairs, finances
and accounts with its officers and employees, all at such reasonable times, upon
reasonable notice, and as often as may reasonably be desired.
Section V.7 Existence.
---------
(a) The Borrower shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence or its
partnership existence, as applicable.
(b) The Borrower shall do or cause to be done all things necessary to
preserve and keep in full force and effect its patents, trademarks,
servicemarks, tradenames, copyrights, franchises, licenses, permits,
certificates, authorizations, qualifications, accreditations, easements, rights
of way and other rights, consents and approvals the nonexistence of which is
likely to have a Material Adverse Effect.
Section V.8 Financial Covenants.
-------------------
(a) Total Liabilities to Total Asset Value. As of the last day of
--------------------------------------
each calendar quarter, the Total Debt Ratio will not be greater than 55%.
(b) EBITDA Debt Service Coverage. As of the last day of each calendar
----------------------------
quarter, the ratio of (i) Annual EBITDA to (ii) Total Debt Service, will not be
less than 2.0:1.0.
(c) Fixed Charge Coverage. As of the last day of each calendar
---------------------
quarter, the ratio of (x) Annual EBITDA, less reserves for Capital Expenditures
of
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$0.70 per square foot per annum for each Real Property Asset that is an office
property and $0.40 per square foot per annum for each Real Property Asset that
is an industrial property to (y) the sum of (i) Total Debt Service, and (ii)
dividends or other payments payable by the General Partner with respect to any
preferred stock issued by the General Partner and distributions or other
payments payable by the Borrower with respect to any preferred partnership units
of the Borrower, will not be less than 1.5:1.0.
(d) Limitation on Secured Debt. Secured Debt of the Borrower, the
--------------------------
General Partner and their Consolidated Subsidiaries shall at no time exceed
thirty-five percent (35%) of Total Asset Value.
(e) Unsecured Debt Ratio. As of each of (x) the last day of each
--------------------
calendar quarter, and (y) any Borrowing, the Unsecured Debt Ratio shall exceed
1.8:1.0.
(f) Unencumbered Asset Pool Debt Service Coverage. As of the last day
---------------------------------------------
of each calendar quarter and as of the date of any sale or secured financing of
any Unencumbered Asset Pool Property, the ratio of (i) Unencumbered Asset Pool
Net Operating Cash Flow to (ii) Pro-Forma Debt Service will not be less than
1.8:1.0.
(g) Dividends. The Borrower will not, as determined on an aggregate
---------
annual basis, pay any partnership distributions in excess of the greater of (i)
95% of its consolidated FFO for such year, and (ii) an amount which results in
distributions to the General Partner in an amount sufficient to permit the
General Partner to pay dividends to its shareholders which it reasonably
believes are necessary for it to (A) maintain its qualification as a real estate
investment trust for federal and state income tax purposes, and (B) avoid the
payment of federal or state income or excise tax. During the continuance of an
Event of Default under Section 6.1(a), the Borrower shall make only those
partnership distributions necessary to make distributions to the General Partner
to pay dividends to its shareholders which it reasonably believes are necessary
to maintain its status as a real estate investment trust for federal and state
income tax purposes.
(h) Minimum Consolidated Tangible Net Worth. The Consolidated
---------------------------------------
Tangible Net Worth will at no time be less than the sum of (i) $575,000,000 plus
(ii) 90% of all Net Offering Proceeds.
52
<PAGE>
(i) Debt. Prior to the date on which the Borrower receives an
----
Investment Grade Rating from either S&P or Moody's, neither the Borrower nor the
General Partner shall, at any time, create, incur, assume, guaranty, suffer to
exist or otherwise become or remain directly or indirectly liable with respect
to any Debt other than Non-Recourse Debt. Notwithstanding the provisions of the
sentence immediately foregoing, the Borrower shall have the right to incur
Recourse Debt (A) up to an aggregate maximum of $5,000,000 which is either (i)
unsecured or (ii) incurred with respect to assets which are not Unencumbered
Asset Pool Properties and is subject to a purchase money security interest or
security interest under a conditional sale agreement, and (B) up to an aggregate
maximum of $50,000,000, which is secured and which is incurred in connection
with the financing of construction costs.
Section V.9 Restriction on Fundamental Changes; Operation and
-------------------------------------------------
Control. (a) The Borrower shall not enter into any merger or consolidation,
-------
unless the Borrower is the surviving entity, or liquidate, wind-up or dissolve
(or suffer any liquidation or dissolution), discontinue its business or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, any substantial part of its business or property, whether now or
hereafter acquired, hold an interest in any subsidiary which is not controlled
by the Borrower or the General Partner or enter into other business lines,
without the prior written consent of the Administrative Agent, which consent
shall not be given unless the Required Banks so consent.
(b) The Borrower shall not amend its articles of incorporation, by-
laws or agreement of limited partnership, as applicable, in any material respect
which is reasonably likely to have an adverse effect on the Banks, without the
Administrative Agent's consent, which shall not be unreasonably withheld or
delayed.
Section V.10 Changes in Business. The Borrower shall not enter into
-------------------
any business which is substantially different from that conducted by the
Borrower on the Closing Date after giving effect to the transactions
contemplated by the Loan Documents.
Section V.11 Sale of Unencumbered Asset Pool Properties. Prior to
------------------------------------------
the sale or transfer of any Unencumbered Asset Pool Property, the Borrower shall
(i) deliver prior written notice to the Administrative Agent, (ii) deliver to
the Administrative Agent a certificate from its chief financial officer or chief
accounting officer certifying that at the time of such sale or other disposal
(based on pro-forma calculations for the previous period assuming that such
Unencumbered Asset Pool Property
53
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was not a Unencumbered Asset Pool Property for the relevant period) all of the
covenants contained in Sections 5.8, 5.14, 5.16, 5.17 and 5.20 are and after
giving effect to the transaction shall continue to be true and accurate in all
respects, and (iii) pay to the Administrative Agent an amount equal to that
required pursuant to Section 2.10(a). In the event that a Separate Parcel that
originally formed a part of a Unencumbered Asset Pool Property is to be sold or
transferred, the value of the remaining portion of the Unencumbered Asset Pool
Property will be determined by Administrative Agent at the time of sale or
transfer in its sole discretion.
Section V.12 Fiscal Year; Fiscal Quarter. The Borrower shall not
---------------------------
change its fiscal year or any of its fiscal quarters without the Administrative
Agent's consent, which shall not be unreasonably withheld or delayed.
Section V.13 Margin Stock. None of the proceeds of the Loan will be
------------
used, directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any Margin Stock.
Section V.14 Development Activities. The Borrower shall not engage
----------------------
in any development activities except for development in connection with the
expansion and/or repositioning or restoration following a casualty or
condemnation of existing improvements on Real Property Assets. Notwithstanding
the foregoing, the Borrower may engage in all other development activities where
there is construction completion risk provided that in no event shall the value
(determined in accordance with the book value thereof, in accordance with GAAP)
of the Real Property Assets under such other type of development exceed twenty
percent (20%) of the Borrower's Total Asset Value.
Section V.15 Interest Rate Protection. On or before the date that is
------------------------
the six (6) month anniversary of the date hereof, the Borrower and the General
Partner shall maintain Interest Rate Hedges on a notional amount of the Debt
under clause (A) of the definition of Debt of the Borrower, and the General
Partner and their Subsidiaries which, when added to the aggregate principal
amount of the Debt under clause (A) of the definition of Debt of the Borrower,
and the General Partner and their Subsidiaries which bears interest at a fixed
rate, equals or exceeds 50% of the aggregate principal amount of all Debt under
clause (A) of the definition of Debt of the Borrower, and the General Partner
and their Subsidiaries.
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Section V.16 Joint Ventures. The value of the Borrower's and the
--------------
General Partner's interest in any joint venture, whether consolidated or
unconsolidated, shall at no time exceed 15% of Total Asset Value.
Section V.17 Investments in Unimproved Real Property. The aggregate
---------------------------------------
amount of the investments of the Borrower, the General Partner and their
Consolidated Subsidiaries in unimproved real property will at no time exceed
7.5% of Total Asset Value.
Section V.18 Use of Proceeds. The Borrower shall use the proceeds of
---------------
the Loans solely to finance the acquisition of additional Unencumbered Asset
Pool Properties or other Real Property Assets which are industrial or office
properties and for its general business purposes.
Section V.19 General Partner Status. The General Partner shall at
----------------------
all times (i) maintain its status as a self-directed and self-administered real
estate investment trust under the Internal Revenue Code, and (ii) remain a
publicly traded company listed on the New York Stock Exchange.
Section V.20 Certain Requirements for the Unencumbered Asset Pool.
----------------------------------------------------
(a) At all times, (i) the Real Property Assets in the Unencumbered Asset Pool
shall be on average during any consecutive twelve-month period (tested
quarterly) at least 85% leased to tenants and (ii) any Real Property Asset that
is a part of the Unencumbered Asset Pool less than 85% leased to tenants for
more than twelve months shall not account for more than ten percent (10%) of the
Unencumbered Asset Pool Properties Value.
(b) Any Subsidiary which owns any of the Real Property Assets in the
Unencumbered Asset Pool shall not at any time incur any Debt, nor shall the
Borrower pledge its interest in such Subsidiary nor shall the Borrower or such
Subsidiary enter into any negative pledge with respect thereto.
ARTICLE VI
DEFAULTS
Section VI.1 Events of Default. Each of the following shall
-----------------
constitute an event of default under this Agreement (an "Event of Default"):
----------------
55
<PAGE>
(a) the Borrower shall fail to pay when due any principal of any Loan,
or the Borrower shall fail to pay when due any interest on any Loan; provided,
--------
however, that the Borrower shall be entitled to a three (3) Domestic Business
-------
Day grace period with respect thereto but only as to two (2) payments of
interest during the Term, or the Borrower shall fail to pay within three (3)
Domestic Business Days after the same is due any fees or other amounts payable
hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.8 to 5.20, inclusive, subject to any applicable grace
periods set forth therein;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for 30 days after written notice thereof has been given to the
Borrower by the Administrative Agent;
(d) any representation, warranty, certification or statement made by
the Borrower in this Agreement or in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made (or deemed made);
(e) the Borrower or the General Partner shall default in the payment
when due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) of any amount owing in respect of any Recourse Debt or Debt
guaranteed by the Borrower or the General Partner (other than the Obligations)
in an aggregate principal amount of more than $1,000,000 and such default shall
continue beyond the giving of any required notice and the expiration of any
applicable grace period (as the same may be extended by the applicable lender)
and such default shall not be waived by the applicable lender (which waiver
shall serve to reinstate the applicable loan), or the Borrower or the General
Partner shall default in the performance or observance of any obligation or
condition with respect to any such Debt or any other event shall occur or
condition exist beyond the giving of any required notice and the expiration of
any applicable grace period (as the same may be extended by the applicable
lender), if in any such case as a result of such default, event or condition,
the lender thereof shall accelerate the maturity of any such Debt or to permit
(without any further requirement of notice or lapse of time) the holder or
holders thereof, or any trustee or agent for such holders, to accelerate the
maturity of any such Debt and such default shall not be waived by the applicable
lender (which waiver shall serve to reinstate the applicable loan), or any such
Debt shall become or
56
<PAGE>
be declared to be due and payable prior to its stated maturity other than as a
result of a regularly scheduled payment;
(f) the Borrower or the General Partner shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;
(g) an involuntary case or other proceeding shall be commenced against
the Borrower or the General Partner seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or the General Partner under the
federal bankruptcy laws as now or hereafter in effect;
(h) the Borrower shall default in its obligations under any Loan
Document other than this Agreement beyond any applicable notice and grace
periods;
(i) the General Partner shall default in its obligations under the
Guaranty beyond any applicable notice and grace periods;
(j) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $1,000,000 which it shall have become liable
to pay under Title IV of ERISA, or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing, or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material Plan, or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated, or there shall occur a
complete or partial withdrawal from,
57
<PAGE>
or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect
to, one or more Multiemployer Plans which could cause one or more members of the
ERISA Group to incur a current payment obligation in excess of $1,000,000;
(k) one or more final nonappealable judgments or decrees in an
aggregate amount of $10,000,000 as of such date shall be entered by a court or
courts of competent jurisdiction against the Borrower or the General Partner
(other than any judgment as to which, and only to the extent, a reputable
insurance company has acknowledged coverage of such claim in writing) and (i)
any such judgments or decrees shall not be stayed, discharged, paid, bonded or
vacated within thirty (30) days (or bonded, vacated or satisfied within thirty
(30) after any stay is lifted) or (ii) enforcement proceedings shall be
commenced by any creditor on any such judgments or decrees;
(l) (i) any Environmental Claim shall have been asserted against the
Borrower or any Environmental Affiliate, (ii) any release, emission, discharge
or disposal of any Material of Environmental Concern shall have occurred, and
such event is reasonably likely to form the basis of an Environmental Claim
against the Borrower or any Environmental Affiliate, or (iii) the Borrower or
the Environmental Affiliates shall have failed to obtain any Environmental
Approval necessary for the ownership, or operation of its business, property or
assets or any such Environmental Approval shall be revoked, terminated, or
otherwise cease to be in full force and effect, in the case of clauses (i), (ii)
or (iii) above, if the existence of such condition has had or is reasonably
likely to have a Material Adverse Effect;
(m) during any consecutive two (2) year period commencing on or after
the date hereof, individuals who at the beginning of such period constituted the
Board of Directors of the General Partner of the Borrower (together with any new
directors whose election by the Board of Directors or whose nomination for
election by the General Partner's stockholders was approved by a vote of at
least a majority of the members of the Board of Directors then in the office who
either were members of the Board of Directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the members of the Board of Directors
then in office;
(n) the General Partner shall cease at any time to qualify as a real
estate investment trust under the Internal Revenue Code; and
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(o) at any time, for any reason, the Borrower or the General Partner
seeks to repudiate its obligations under any Loan Document.
Section VI.2 Rights and Remedies. (a) Upon the occurrence of any
-------------------
Event of Default described in Sections 6.1(f) or (g), the unpaid principal
amount of, and any and all accrued interest on, the Loans and any and all
accrued fees and other Obligations hereunder shall automatically become
immediately due and payable, with all additional interest from time to time
accrued thereon and without presentation, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and notice of acceleration), all of which are hereby expressly waived by the
Borrower; and upon the occurrence and during the continuance of any other Event
of Default, the Administrative Agent may exercise any of its rights and remedies
hereunder and by written notice to the Borrower, declare the unpaid principal
amount of and any and all accrued and unpaid interest on the Loans and any and
all accrued fees and other Obligations hereunder to be, and the same shall
thereupon be, immediately due and payable with all additional interest from time
to time accrued thereon and without presentation, demand, or protest or other
requirements of any kind other than as provided in the Loan Documents
(including, without limitation, valuation and appraisement, diligence,
presentment, and notice of intent to demand or accelerate), all of which are
hereby expressly waived by the Borrower.
(b) Notwithstanding the foregoing, upon the occurrence and during the
continuance of any Event of Default other than any Event of Default described in
Sections 6.1(f) or (g), the Administrative Agent shall not exercise any of its
rights and remedies hereunder nor declare the unpaid principal amount of and any
and all accrued and unpaid interest on the Loans and any and all accrued fees
and other Obligations hereunder to be immediately due and payable, until such
time as the Administrative Agent shall have delivered a notice to the Banks
specifying the Event of Default which has occurred and whether Administrative
Agent recommends the acceleration of the Obligations due hereunder or the
exercise of other remedies hereunder. The Banks shall notify the Administrative
Agent if they approve or disapprove of the acceleration of the Obligations due
hereunder or the exercise of such other remedy recommended by Administrative
Agent within five (5) Domestic Business Days after receipt of such notice. If
any Bank shall not respond within such five (5) Domestic Business Day period,
then such Bank shall be deemed to have accepted Administrative Agent's
recommendation for acceleration of the Obligations due hereunder or the exercise
of such other remedy. If the Required Banks shall approve the acceleration of
the Obligations due hereunder or the exercise of such
59
<PAGE>
other remedy, then Administrative Agent shall declare the unpaid principal
amount of and any and all accrued and unpaid interest on the Loans and any and
all accrued fees and other Obligations hereunder to be immediately due and
payable or exercise such other remedy approved by the Required Banks. If the
Required Banks shall neither approve nor disapprove the acceleration of the
Obligations due hereunder or such other remedy recommended by Administrative
Agent, then Administrative Agent may accelerate the Obligations due hereunder or
exercise any of its rights and remedies hereunder in its sole discretion. If the
Required Banks shall disapprove the acceleration of the Obligations due
hereunder or the exercise of such other remedy recommended by Administrative
Agent, but approve of another remedy, then to the extent permitted hereunder,
Administrative Agent shall exercise such remedy. In the event the Administrative
Agent exercises any remedy provided in any of the Loan Documents, the
Administrative Agent shall act as a collateral agent for the Banks.
Section VI.3 Notice of Default. If the Administrative Agent shall
-----------------
not already have given any notice to the Borrower under Section 6.1, the
Administrative Agent shall give notice to the Borrower under Section 6.1
promptly upon being requested to do so by the Required Banks and shall thereupon
notify all the Banks thereof.
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section VII.1 Appointment and Authorization. Each Bank irrevocably
-----------------------------
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental thereto.
Section VII.2 Administrative Agent and Affiliates. Morgan shall have
-----------------------------------
the same rights and powers under this Agreement as any other Bank and may
exercise or refrain from exercising the same as though it were not the
Administrative Agent, and Morgan and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower or
any subsidiary or affiliate of the Borrower as if it were not the Administrative
Agent hereunder, and the term "Bank" and "Banks" shall include Morgan in its
individual capacity.
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Section VII.3 Action by Administrative Agent. The obligations of the
------------------------------
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent shall
not be required to take any action with respect to any Default, except as
expressly provided in Article VI.
Section VII.4 Consultation with Experts. The Administrative Agent
-------------------------
may consult with legal counsel (who may be counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
Section VII.5 Liability of Administrative Agent. Neither the
---------------------------------
Administrative Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for any action taken or
not taken by it in connection herewith (i) with the consent or at the request of
the Required Banks or, where required by the terms of this Agreement, all of the
Banks, or (ii) in the absence of its own gross negligence or willful misconduct.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Borrower; (iii) the satisfaction of
any condition specified in Article III, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the other Loan Documents or any other instrument
or writing furnished in connection herewith. The Administrative Agent shall not
incur any liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex or similar writing)
believed by it in good faith to be genuine or to be signed by the proper party
or parties.
Section VII.6 Indemnification. Each Bank shall, ratably in
---------------
accordance with its Commitment, indemnify the Administrative Agent, its
affiliates and their respective directors, officers, agents and employees (to
the extent not reimbursed by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur as a result of, or in
connection with, the Administrative Agent's capacity as Administrative Agent in
connection with this Agreement, the other Loan
61
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Documents or any action taken or omitted by such indemnitees in accordance with
this Agreement.
Section VII.7 Credit Decision. Each Bank acknowledges that it has,
---------------
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Bank also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action under this Agreement.
Section VII.8 Successor Administrative Agent. The Administrative
------------------------------
Agent may resign at any time by giving notice thereof to the Banks and the
Borrower. In addition, if the Administrative Agent at any time shall have been
finally determined to have committed gross negligence or willful misconduct in
connection with its performance of its duties as Administrative Agent hereunder,
then, upon notice from the Required Banks, the Administrative Agent shall
resign. Upon any such resignation, the Required Banks shall have the right to
appoint a successor Administrative Agent with the consent of the Borrower
provided that no Event of Default shall have occurred and be continuing. If no
successor Administrative Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent, which shall be a commercial bank organized or licensed
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of its appointment as the Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder first accruing or arising
after the effective date of such retirement. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent.
If, at any time during the Term, the Administrative Agent shall no
longer have any Commitment under this Agreement, the Administrative Agent shall
give notice of its offer to resign to the Banks and the Borrower. Upon any such
offer
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<PAGE>
of resignation, the Required Banks shall have the right to appoint a successor
Administrative Agent or to retain the Administrative Agent with the consent of
the Borrower, provided that no Event of Default shall be outstanding.
Section VII.9 Administrative Agent's Fee. The Borrower shall pay to
--------------------------
the Administrative Agent for its own account fees in the amounts and at the
times previously agreed upon between the Borrower and the Administrative Agent.
Section VII.10 Copies of Notices. Administrative Agent shall deliver
-----------------
to each Bank a copy of any notice sent to the Borrower by Administrative Agent
in connection with the performance of its duties as Administrative Agent
hereunder; and Administrative Agent shall deliver to each Bank a copy of any
notice sent to the Administrative Agent by the Borrower in connection with any
Default or Event of Default hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section VIII.1 Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. If on or prior to the first day of any Interest Period for any Euro-
------
Dollar Borrowing:
(a) the Administrative Agent is advised by the Reference Bank that
deposits in dollars (in the applicable amounts) are not being offered to the
Reference Bank in the relevant market for such Interest Period, or
(b) Banks having 50% or more of the aggregate amount of the affected
Loans advise the Administrative Agent that the Adjusted London Interbank Offered
Rate as determined by the Administrative Agent will not adequately and fairly
reflect the cost to such Banks of funding their Euro-Dollar Loans for such
Interest Period, the Administrative Agent shall forthwith give notice thereof to
the Borrower and the Banks, whereupon until the Administrative Agent notifies
the Borrower that the circumstances giving rise to such suspension no longer
exist, the obligations of the Banks to make Euro-Dollar Loans, or to continue or
convert outstanding Loans as or into Euro-Dollar Loans, as the case may be,
shall be suspended, and each outstanding Euro-Dollar Loan shall be converted
into a Base Rate Loan on the last day of the then current Interest Period
applicable thereto. Unless the Borrower notifies the Administrative Agent at
least two (2) Domestic Business Days
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before the date of any Euro-Dollar Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, if such
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing.
Section VIII.2 Illegality. If, after the date of this Agreement, the
----------
adoption of any applicable law, rule or regulation, or any change in any
existing applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for any
Bank (or its Euro-Dollar Lending Office) to make, maintain or fund its Euro-
Dollar Loans, such Bank shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other Banks and
the Borrower, whereupon until such Bank notifies the Borrower and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make or convert Euro-Dollar Loans
shall be suspended. Before giving any notice to the Administrative Agent
pursuant to this Section, such Bank shall designate a different Euro-Dollar
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. If such Bank shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Euro-Dollar Loans to maturity and shall
so specify in such notice, the Borrower shall immediately prepay in full the
then outstanding principal amount of each such Euro-Dollar Loan together with
accrued interest thereon. Concurrently with prepaying each such Euro-Dollar
Loan, the Borrower shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
such Bank shall make such a Base Rate Loan.
Section VIII.3 Increased Cost and Reduced Return.
---------------------------------
(a) If, after the date hereof, the adoption of any applicable law,
rule or regulation, or any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank
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<PAGE>
or comparable agency shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System (but excluding with respect to any Euro-
Dollar Loan any such requirement reflected in an applicable Euro-Dollar Reserve
Percentage)), special deposit, insurance assessment or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Bank (or its Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the London interbank market any other condition
affecting its Euro-Dollar Loans, its Note, or its obligation to make Euro-Dollar
Loans, and the result of any of the foregoing is to increase the cost to such
Bank (or its Applicable Lending Office) of making or maintaining any Euro-Dollar
Loan, or to reduce the amount of any sum received or receivable by such Bank (or
its Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, then, within
fifteen (15) days after demand by such Bank (with a copy to the Administrative
Agent), which demand shall be accompanied by a certificate showing, in
reasonable detail, the calculation of such amount or amounts, the Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within fifteen (15)
days after demand by such Bank (with a copy to the Administrative Agent), which
demand shall be accompanied by a certificate showing, in reasonable detail, the
calculation of such amount or amounts, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank (or its Parent) for
such reduction.
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section and will
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<PAGE>
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use
any reasonable averaging and attribution methods.
Section VIII.4 Taxes.
-----
(a) Any and all payments by the Borrower to or for the account of any
Bank or the Administrative Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Bank and
---------
the Administrative Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise or similar taxes imposed on it, by the jurisdiction of such Bank's
Applicable Lending Office or any political subdivision thereof (and, if
different from the jurisdiction of such Bank's Applicable Lending Office, the
jurisdiction of the domicile of its Loans either established by the Bank
pursuant to Section 9.12 or determined by the applicable taxing authorities)(all
such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If the
-----
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Bank or the Administrative Agent,
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 8.4) such Bank or the Administrative Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Administrative Agent, at its address referred to in Section 9.1,
the original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
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<PAGE>
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "Other Taxes").
-----------
(c) The Borrower agrees to indemnify each Bank and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 8.4) paid by such Bank or the Administrative
Agent (as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Any payment required under
this indemnification shall be made within fifteen (15) days from the date such
Bank or the Administrative Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first became a
party to this Agreement or at any time thereafter (other than solely by reason
of a change in United States law or a change in the terms of any treaty to which
the United States is a party after the date hereof) indicates a United States
interest withholding tax rate in excess of zero (or would have indicated such a
withholding tax rate if such form had been submitted and completed accurately
and completely and either was not submitted or was not completed accurately and
completely), or if a Bank otherwise is subject to United States interest
withholding tax at a rate in excess of zero at any time for any reason (other
than solely by reason of a change in United States law or regulation or a change
in any treaty to which the United States is a party after the date hereof),
withholding tax at such rate shall be considered excluded from "Taxes" as
defined in Section 8.4(a). In addition, any amount that otherwise would be
considered "Taxes" or "Other Taxes" for purposes of this Section 8.4 shall be
excluded therefrom if the Bank either has transferred the domicile of its Loans
pursuant to Section 9.12 or changed the Applicable Lending
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<PAGE>
Office with respect to such Loans and such amount would not have been incurred
had such transfer or change not been made.
(e) For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form pursuant to Section 8.4(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.4(a) with respect to
Taxes imposed by the United States; provided, however, that should a Bank, which
-------- -------
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Bank pursuant to this Section 8.4, then such Bank will change
the jurisdiction of its Applicable Lending Office so as to eliminate or reduce
any such additional payment which may thereafter accrue if such change, in the
judgment of such Bank, is not otherwise disadvantageous to such Bank.
Section VIII.5 Base Rate Loans Substituted for Affected Euro-Dollar
----------------------------------------------------
Loans. If (i) the obligation of any Bank to make, or convert outstanding Loans
-----
to, Euro-Dollar Loans has been suspended pursuant to Sections 8.1 or 8.2 or (ii)
any Bank has demanded compensation under Section 8.3 or 8.4 with respect to its
Euro-Dollar Loans and the Borrower shall, by at least five (5) Euro-Dollar
Business Days' prior notice to such Bank through the Administrative Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as Euro-
Dollar Loans shall be made instead as Base Rate Loans (on which interest and
principal shall be payable contemporaneously with the related Euro-Dollar Loans
of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all payments
of principal which would otherwise be applied to repay such Euro-Dollar Loans
shall be applied to repay its Base Rate Loans instead.
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ARTICLE IX
MISCELLANEOUS
Section IX.1 Notices. All notices, requests and other communications
-------
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party:
(x) in the case of the Borrower or the Administrative Agent, at its address or
telecopy number set forth on the signature pages hereof, together with copies
thereof, in the case of the Borrower, to Latham & Watkins, 633 West Fifth
Street, Suite 4000, Los Angeles, CA 90071, Attention: Glen B. Collyer, Esq.,
Telephone: (213) 485-1234, Telecopy: (213) 891-8763, and in the case of the
Administrative Agent, to Skadden, Arps, Slate, Meagher & Flom LLP, 4 Times
Square, New York, New York 10036-6522, Attention: Martha Feltenstein, Esq.,
Telephone: (212)735-2272, Telecopy: (212)735-2000, (y) in the case of any Bank,
at its address or telecopy number set forth on the signature pages hereof or in
its Administrative Questionnaire or (z) in the case of any party, such other
address or telecopy number as such party may hereafter specify for the purpose
by notice to the Administrative Agent, the Banks and the Borrower. Each such
notice, request or other communication shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
this Section, (ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid
or (iii) if given by any other means, when delivered at the address specified in
this Section; provided that notices to the Administrative Agent under Article II
--------
or Article VIII shall not be effective until received.
Section IX.2 No Waivers. No failure or delay by the Administrative
----------
Agent or any Bank in exercising any right, power or privilege hereunder or under
any Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
Section IX.3 Expenses; Indemnification.
-------------------------
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
of the Administrative Agent (including, without limitation, reasonable fees and
disbursements of special counsel Skadden, Arps, Slate, Meagher & Flom LLP, local
counsel for the Administrative Agent, and travel, site visits, third party
reports
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<PAGE>
(including Appraisals), mortgage recording taxes, environmental and engineering
expenses), in connection with the preparation and administration of this
Agreement, the Loan Documents and the documents and instruments referred to
therein, the syndication of the Loans, any waiver or consent hereunder or any
amendment or modification hereof or any Default or alleged Default hereunder and
(ii) if an Event of Default occurs, all out-of-pocket expenses incurred by the
Administrative Agent and each Bank, including, without limitation, reasonable
fees and disbursements of counsel for the Administrative Agent, in connection
with the enforcement of the Loan Documents and the instruments referred to
therein and such Event of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Administrative Agent and
each Bank, their respective affiliates and the respective directors, officers,
agents and employees of the foregoing (each, an "Indemnitee") and hold each
----------
Indemnitee harmless from and against any and all liabilities, losses, damages,
costs and expenses of any kind, including, without limitation, the reasonable
fees and disbursements of counsel and settlements and settlement costs, which
may be incurred by such Indemnitee in connection with any investigative,
administrative or judicial proceeding (whether or not such Indemnitee shall be
designated a party thereto) that may at any time (including, without limitation,
at any time following the payment of the Obligations) be imposed on, asserted
against or incurred by any Indemnitee as a result of, or arising out of, or in
any way related to or by reason of, (i) any of the transactions contemplated by
the Loan Documents or the execution, delivery or performance of any Loan
Document (including, without limitation, the Borrower's actual or proposed use
of proceeds of the Loans, whether or not in compliance with the provisions
hereof), (ii) any violation by the Borrower or the Environmental Affiliates of
any applicable Environmental Law, (iii) any Environmental Claim arising out of
the management, use, control, ownership or operation of property or assets by
the Borrower or any of the Environmental Affiliates, including, without
limitation, all on-site and off-site activities involving Material of
Environmental Concern, (iv) the breach of any environmental representation or
warranty set forth herein, (v) the grant to the Administrative Agent and the
Banks of any Lien in any property or assets of the Borrower or any stock or
other equity interest in the Borrower, and (vi) the exercise by the
Administrative Agent and the Banks of their rights and remedies (including,
without limitation, foreclosure) under any agreements creating any such Lien
(but excluding in each case, as to any Indemnitee, any such losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements incurred solely by reason of (i) the gross negligence or
willful miscon-
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<PAGE>
duct of such Indemnitee as finally determined by a court of competent
jurisdiction or (ii) any investigative, administrative or judicial proceeding
imposed or asserted against any Indemnitee by any bank regulatory agency or by
any equity holder of such Indemnitee). The Borrower's obligations under this
Section shall survive the termination of this Agreement and the payment of the
Obligations.
(c) The Borrower shall pay, and hold the Administrative Agent and
each of the Banks harmless from and against, any and all present and future U.S.
stamp, recording, transfer and other similar foreclosure related taxes with
respect to the foregoing matters and hold the Administrative Agent and each Bank
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to such Bank)
to pay such taxes.
Section IX.4 Sharing of Set-Offs. In addition to any rights now or
-------------------
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default, each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), other than deposits held for the
benefit of third parties, and any other indebtedness at any time held or owing
by such Bank (including, without limitation, by branches and agencies of such
Bank wherever located) to or for the credit or the account of the Borrower
against and on account of the Obligations of the Borrower then due and payable
to such Bank under this Agreement or under any of the other Loan Documents,
including, without limitation, all interests in Obligations purchased by such
Bank. Each Bank agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Note held by it, which
is greater than the proportion received by any other Bank, in respect of the
aggregate amount of principal and interest due with respect to any Note held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other Banks, and such
other adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Banks shall be
shared by the Banks pro rata; provided that nothing in this Section shall impair
--------
the right of any Bank to exercise any right of set-off or counterclaim it may
have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes. The
Borrower agrees, to the fullest extent that it may effectively do so under
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<PAGE>
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
Section IX.5 Amendments and Waivers. Any provision of this Agreement
----------------------
(including any of the financial covenants given by the Borrower pursuant to
Section 5.8), the Notes, or other Loan Documents may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Banks (and, if the rights or duties of the
Administrative Agent are affected thereby, by the Administrative Agent);
provided that no such amendment or waiver shall, unless signed by all the Banks,
--------
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees specified herein, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for any reduction
or termination of any Commitment, (iv) release the Guaranty or otherwise release
any other collateral, (v) subordinate the Loans to any other Debt, (vi) amend or
modify the provisions of this Section 9.5, or (vii) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Banks, which shall be required for the Banks or any of them to take
any action under this Section or any other provision of this Agreement.
Section IX.6 Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement or the other Loan Documents without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
-----------
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obliga-
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tions under this Agreement. Any agreement pursuant to which any Bank may grant
such a participating interest shall provide that such Bank shall retain the sole
right and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such participation
--------
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii), (iii) or
(iv) of Section 9.5 without the consent of the Participant. The Borrower agrees
that each Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Article VIII with respect to its
participating interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
--------
rights and obligations under this Agreement, the Notes and the other Loan
Documents, and such Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially the form of Exhibit D
---------
attached hereto executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Administrative Agent, which consent
shall not be unreasonably withheld, and, provided no Event of Default shall have
occurred and be continuing, the Borrower, which consent shall not be
unreasonably withheld or delayed. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Administrative Agent
and the Borrower shall make appropriate arrangements so that, if required, a new
Note or Notes are issued to the Assignee. In connection with any such
assignment (except for an assignment by a Bank to its Affiliate), the transferor
Bank shall pay to the Administrative Agent an administrative fee for processing
such assignment in the amount of $2,500. If the Assignee is not incorporated
under the laws of the United States of America or a state thereof, it shall
deliver to the Borrower and the Administrative Agent certification as to
exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 8.4.
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(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.3 or 8.4 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.2, 8.3 or 8.4 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
Section IX.7 Governing Law; Submission to Jurisdiction.
-----------------------------------------
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this Agreement or
any other Loan Document and any action for enforcement of any judgment in
respect thereof may be brought in the courts of the State of New York or of the
United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, the Borrower hereby accepts for itself
and in respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and appellate courts from any thereof. The
Borrower irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the hand delivery, or
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower at its address set forth below. The Borrower hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Agreement or any other Loan Document brought in the courts referred to
above and hereby further irrevocably waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum. Nothing herein shall affect the right of
the Administrative Agent, any Bank or any holder of a Note to serve process in
any
<PAGE>
other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Borrower in any other jurisdiction.
Section IX.8 Marshaling; Recapture. Neither the Administrative Agent
---------------------
nor any Bank shall be under any obligation to marshal any assets in favor of the
Borrower or any other party or against or in payment of any or all of the
Obligations. To the extent any Bank receives any payment by or on behalf of the
Borrower, which payment or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
the Borrower or its estate, trustee, receiver, custodian or any other party
under any bankruptcy law, state or federal law, common law or equitable cause,
then to the extent of such payment or repayment, the Obligation or part thereof
which has been paid, reduced or satisfied by the amount so repaid shall be
reinstated by the amount so repaid and shall be included within the liabilities
of the Borrower to such Bank as of the date such initial payment, reduction or
satisfaction occurred.
Section IX.9 Counterparts; Integration; Effectiveness. This Agreement
----------------------------------------
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Administrative Agent of
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Administrative Agent in form satisfactory to it of telegraphic, telex or
other written confirmation from such party of execution of a counterpart hereof
by such party).
Section IX.10 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
--------------------
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section IX.11 Survival. All indemnities set forth herein shall survive
--------
the execution and delivery of this Agreement and the other Loan Documents and
the making and repayment of the Loans hereunder.
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Section IX.12 Domicile of Loans. Subject to the provisions of Article
-----------------
VIII, each Bank may transfer and carry its Loans at, to or for the account of
any domestic or foreign branch office, subsidiary or affiliate of such Bank.
Section IX.13 Limitation of Liability. No claim may be made by the
-----------------------
Borrower or any other Person against the Administrative Agent or any Bank or the
affiliates, directors, officers, employees, attorneys or agent of any of them
for any consequential or punitive damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement or by the other Loan Documents, or
any act, omission or event occurring in connection therewith; and the Borrower
hereby waives, releases and agrees not to sue upon any claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER: KILROY REALTY, L.P.,
-------- a Delaware limited partnership
By: Kilroy Realty Corporation,
a Maryland corporation,
its general partner
By: /s/ Jeffrey C. Hawken
--------------------------------
Name: Jeffrey C. Hawken
Title: Executive Vice President,
Chief Operating Officer
By: /s/ Tyler H. Rose
--------------------------------
Name: Tyler H. Rose
Title: Senior Vice President
and Treasurer
<PAGE>
ADMINISTRATIVE AGENT MORGAN GUARANTY TRUST COMPANY
--------------------
AND BANK: OF NEW YORK
--------
By: /s/ Carl J. Mehldau, Jr.
---------------------------------
Name: Carl J. Mehldau, Jr.
Title: Associate
60 Wall Street
New York, New York 10260-0060
Attention:
Telephone number:
Telecopy number:
Domestic and Euro-Currency
Lending Office:
Nassau, Bahamas Office
c/o J.P. Morgan Services Inc.
500 Stanton Christiana Road
Newark, Delaware 19173-2107
Attention: Bill Lamb
Telecopy number: (302) 634-4222
Commitment: $16,700,000
SYNDICATION AGENT
----------------- THE CHASE MANHATTAN BANK
AND BANK:
--------
By: /s/ John F. Mix
___________________________
Name: John F. Mix
Title: Vice President
Commitment: $16,700,000
<PAGE>
DOCUMENTATION AGENT
AND BANK: COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Christine H. Finkel
------------------------------------
Name: Christine H. Finkel
Title: Vice President
By: /s/ R. William Knickerbocker
------------------------------------
Name: R. William Knickerbocker
Title: Assistant Vice President
2 Word Financial Center
New York, New York 10281-1050
Attention: David Schwarz/Christine Finkel
Telephone number:
(212) 266-7632/(212) 266-7375
Telecopy number: (212) 266-7565
Domestic Lending Office:
Commerzbank AG, New York Branch
2 World Financial Center
New York, New York 10281-1050
Attention: David Schwarz/Christine Finkel
Telephone number:
(212) 266-7632/(212) 266-7375
Telecopy number: (212) 266-7565
Euro-Currency Lending Office:
Commerzbank AG, Grand Cayman Branch
C/o Commerzbank AG, New York Branch
2 World Financial Center
New York, New York 10281-1050
Attention: David Schwarz/Christine Finkel
Telephone number:
(212) 266-7632/(212) 266-7375
Telecopy number: (212) 266-7565
Commitment: $16,600,000
<PAGE>
BANK: PNC BANK, NATIONAL ASSOCIATION
----
By: /s/ Paul Jamiolkowski
------------------------------------
Name: Paul Jamiolkowski
Title: Vice President
Commitment: $10,000,000
BANK: KEYBANK NATIONAL ASSOCIATION
----
By: /s/ Kevin P. Murray
------------------------------------
Name: Kevin P. Murray
Title: AVP
Commitment: $10,000,000
BANK: THE BANK OF NOVA SCOTIA, ACTING THROUGH ITS
---- SAN FRANCISCO AGENCY
By: /s/ K. M. Pigott
------------------------------------
Name: K. M. Pigott
Title: Director
Commitment: $10,000,000
BANK: CITIZENS BANK OF RHODE ISLAND
----
By: /s/ Lawrence S. Hershoff
----------------------------------------
Name: Lawrence S. Hershoff
Title: Vice President
Commitment: $10,000,000
BANK: KBC BANK N.V.
----
By: /s/ Robert Snauffer
----------------------------------------
Name: Robert Snauffer
Title: First Vice President
By: /s/ Patrick A. Janssens
----------------------------------------
Name: Patrick A. Janssens
Title: Vice President
Commitment: $10,000,000
<PAGE>
EXHIBIT A
---------
NOTE
$___________ New York, New York
September __, 2000
For value received, KILROY REALTY, L.P., a Delaware limited partnership
(the "Borrower") promises to pay to the order of ______________ (the "Bank"),
-------- ----
for the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the Maturity Date. The Borrower promises to pay interest
on the unpaid principal amount of each such Loan on the dates and at the rate or
rates provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Administrative Agent under the
Credit Agreement (as defined below).
All Loans made by the Bank, the respective types and maturities thereof and
all repayments of the principal thereof shall be recorded by the Bank and, if
the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
--------
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, dated as
of September 7, 2000, among the Borrower, the Banks party thereto, The Chase
Manhattan Bank, as Bank and as Syndication Agent, Morgan Guaranty Trust Company
of New York, as Bank and as Administrative Agent for the Banks, Commerzbank
Aktiengesellschaft, New York and Grand Cayman Branches, as Documentation Agent,
Chase Securities Inc., as Lead Arranger and Joint Bookmanager, and J.P. Morgan
Securities Inc., as Lead Arranger and Joint Bookmanager (as the same may be
amended from time to time, the "Credit Agreement").
----------------
A-1
<PAGE>
Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
KILROY REALTY, L.P.,
a Delaware limited partnership
By: Kilroy Realty Corporation,
a Maryland corporation
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
A-2
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
________________________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
A-3
<PAGE>
EXHIBIT B
---------
Unencumbered Asset Pool Properties
(Fee Interests)
PROPERTY LOCATION
26541 Agoura Rd. Calabasas, CA
5325 Hunter Anaheim, CA
5151 - 5155 Camino Ruiz Camarillo, CA
23600 - 610 Telo Avenue Torrance, CA
Brea Industrial Properties Brea, CA
Garden Grove Industrial Properties Garden Grove, CA
Kilroy Tech Center Irvine Irvine, CA
2501 Pullman Santa Ana, CA
9401 & 9451 Toledo Way Irvine, CA
12400 Industry Garden Grove, CA
1675 MacArthur Costa Mesa, CA
1633 26th Street Santa Monica, CA
2055 Main Street Irvine, CA
6828 Nancy Ridge San Diego, CA
199 & 201 N. Sunrise Ave. Roseville, CA
14831 Franklin Tustin, CA
4361 Latham Riverside, CA
4351 Latham Riverside, CA
601 Valencia Brea, CA
3130 Mira Loma Anaheim, CA
3125 E. Coronado Anaheim, CA
1840 Aerojet Way Las Vegas, NV
1900 Aerojet Way Las Vegas, NV
41093 County Center Dr. Temecula, CA
1951 Carnegie Santa Ana, CA
3130 Wilshire Santa Monica, CA
525 N. Brand Glendale, CA
Walnut Business Center Diamond Bar, CA
Anaheim Corp Center Anaheim, CA
Alton Business Center Irvine, CA
Fullerton Business Center Fullerton, CA
12100 Olympic Boulevard Los Angeles, CA
8101 Kaiser Anaheim, CA
795 Trademark Drive Reno, NV
1240 & 1250 N. Lakeview Ave. Anaheim, CA
4880 Santa Rosa Rd. Camarillo, CA
1250 N. Tustin Avenue Anaheim, CA
2911 Dow Avenue Tustin, CA
Foothill Ranch Foothill Ranch, CA
B-1
<PAGE>
12312 Olympic Boulevard Los Angeles, CA
5115 E. La Palma Ave. Anaheim, CA
5115 N. 27th Avenue Phoenix, AZ
Kilroy Tech Ctr, Anaheim - Ph I Anaheim, CA
Kilroy Tech Ctr, Anaheim - Ph II Anaheim, CA
Brea - Lambert Industrial Complex Brea, CA
Brobeck San Diego, CA
B-2
<PAGE>
EXHIBIT C
---------
Unencumbered Asset Pool Properties
(Leasehold Interests)
Kilroy Airport Center (Long Beach); Long Beach, CA
C-1
<PAGE>
EXHIBIT D
---------
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
-----------------------------------
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("this Assignment"), dated as
----------
of __________, ____, is made by and among [ASSIGNOR] (the "Assignor"),
--------
[ASSIGNEE] (the "Assignee"), KILROY REALTY, L.P. (the "Borrower"), and MORGAN
-------- --------
GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (the "Agent").
-----
W I T N E S S E T H
-------------------
WHEREAS, this Assignment relates to the Credit Agreement, dated as of
_________________, 2000 (the "Loan Agreement"), among the Borrower, the Banks
--------------
party thereto, The Chase Manhattan Bank, as Bank and as Syndication Agent, the
Agent, as Bank and as Administrative Agent for the Banks, Commerzbank
Aktiengesellschaft, New York and Grand Cayman Branches, as Documentation Agent,
Chase Securities Inc., as Lead Arranger and Joint Bookmanager, and J.P. Morgan
Securities Inc., as Lead Arranger and Joint Bookmanager;
WHEREAS, as provided under the Loan Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $__________;
WHEREAS, Loans made to the Borrower by the Assignor under the Loan
Agreement in the aggregate principal amount of $____________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Loan Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
---------------
together with a corresponding portion of its outstanding Loans, and the Assignee
proposes to accept assignment of such rights and assume the corresponding
obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
D-1
<PAGE>
SECTION 1. Definitions. All capitalized terms not otherwise defined
-----------
herein shall have the respective meanings set forth in the Loan Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
----------
Assignee all of the rights of the Assignor under the Loan Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Loan Agreement to the extent of the Assigned Amount, including the purchase from
the Assignor of the corresponding portion of the principal amount of the Loans
made by the Assignor outstanding at the date hereof. Upon the execution and
delivery hereof by the Assignor, the Assignee, the Borrower and the Agent and
the payment of the amounts specified in Section 3 required to be paid on the
date hereof (i) the Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under the Loan Agreement
with a Commitment in an amount equal to the Assigned Amount, and (ii) the
Commitment of the Assignor shall, as of the date hereof, be reduced by a like
amount and the Assignor released from its obligations under the Loan Agreement
to the extent such obligations have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
--------
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them./1/ It is
understood that Commitment Fees accrued to the date hereof are for the account
of the Assignor and such fees accruing from and including the date hereof are
for the account of the Assignee. Each of the Assignor and the Assignee hereby
agrees that if it receives any amount under the Loan Agreement which is for the
account of the other party hereto, it shall receive the same for the account of
such other party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
SECTION 4. Consent of the Borrower and the Agent. This Agreement is
-------------------------------------
conditioned upon the written consent of the Borrower and the consent of the
Agent pursuant
______________________________
/1/ The amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It
may be preferable in an appropriate case to specify these amounts
generically or by formula rather than as a fixed sum.
D-2
<PAGE>
to Section 9.6(c) of the Loan Agreement. The execution of this Agreement by the
Borrower and the Agent is evidence of the required consents. Pursuant to Section
9.6(c) the Borrower agrees to execute and deliver a Note payable to the order of
the Assignee to evidence the assignment and assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor represents and
------------------------
warrants that it is the legal and beneficial owner of the interest being
assigned by it hereunder, that it has not created any adverse claim upon such
interest and that such interest is free and clear of any adverse claim, and that
it is authorized to enter into this Agreement. The Assignor makes no other
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Loan Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower. The Assignee represents and warrants
that it is authorized to enter into this Agreement.
SECTION 6. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the external laws of the State of New York
SECTION 7. Counterparts. This Agreement may be signed in any number
------------
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
D-3
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By: _______________________
Name:
Title:
[ASSIGNEE]
By: ________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: ________________________
Name:
Title:
D-4
<PAGE>
CONSENTED TO:
KILROY REALTY, L.P.,
a Delaware limited partnership
By: Kilroy Realty Corporation,
a Maryland corporation,
its general partner
By: ____________________________
Name: Tyler H. Rose
Title: Senior Vice President and Treasurer
By: _____________________________
Name:
Title:
D-5
<PAGE>
SCHEDULE 4.22
-------------
LABOR MATTERS
Agreement between Building Owners and Managers Association of Greater Los
Angeles, Inc., and International Union of Operating Engineers, Local No. 501,
AFL-CIO (November 1, 1996-October 31, 2001)
